App. Div.] First Department, November, 1911. audit and payment and, the Special Term having denied the application, appeal. * * * * * * * Section 84 of the Poor Law (Consol. Laws, chap. 42; Laws of 1909, chap. 46), entitled "Burial of Soldiers, Sailors or Marines," provides that "The board of supervisors in each of the counties shall designate some proper person or authority who shall cause to be interred the body of any honorably discharged soldier, sailor or marine, who has served in the military or naval service of the United States, and who shall hereafter die without leaving sufficient means to defray his funeral expenses, but such expenses shall in no case exceed fifty dollars. If the deceased has relatives or friends who desire to conduct the burial, but are unable or unwilling to pay the charge therefor, such sum shall be paid by the county treasurer, upon due proof of the claim, and of the death and burial of the soldier, sailor or marine * * * to the person so conducting such burial." Section 85 (as amd. by Laws of 1910, chap. 102) provides for the audit and payment of the expenses of such burial by the board of supervisors or other board or officer vested with like powers of the county of which such deceased soldier was a resident at the time of his death; "provided, however, that in case such deceased soldier * shall be at the time * of his death an inmate of any State institution, including State hospitals and soldiers' homes, or any institution supported by the State, and supported at public expense therein, the expense of such burials and headstones shall be a charge upon the county of his legal residence." As stated by the respondent, the sole question involved in this appeal is whether this sum of fifty-four dollars vested in the widow by virtue of the provisions of section 2713 of the Code of Civil Procedure, or whether it was applicable to the payment of the funeral expenses of the deceased. Said section provides as follows: "If a man having a family die, leaving a widow or minor child or children, the following articles shall not be deemed assets, but must be included and stated in the inventory of the estate without being appraised: * 5. Other necessary household furniture, provisions or other personal property in the discretion of the appraisers to the * * First Department, November, 1911. [Vol. 146. value of not exceeding one hundred and fifty dollars. Such articles and property shall remain in the possession of the widow, if there be one, during the time she lives with and provides for such minor child or children. * * * If there be a widow, and no minor child, all the articles and property in this section mentioned shall belong to the widow." In my opinion the sum of fifty-four dollars left by decedent is exempt and belongs to the widow. It is no part of decedent's estate. It is not assets thereof out of which to pay expenses of administration, funeral expenses, debts or legacies. Money is included in the term "other personal property" in said subdivision 5 of section 2713. Section 2514, subdivision 13, of the Code of Civil Procedure provides that “The expression 'personal property' signifies every kind of property which survives a decedent, other than real property as defined in this subdivision." Section 39 of the General Construction Law (Consol. Laws, chap. 22; Laws of 1909, chap. 27) provides: "The term personal property includes chattels, money * * -*- and everything, except real property, which may be the subject of ownership." Subdivision 5 of section 2713 was originally a part of chapter 157 of the Laws of 1842, and was there expressed in the same language, and money was declared by the court to be pe.conal property, within the meaning of that statute. (Matter of Durscheidt, 65 Hun, 136; Lyendecker v. Eisemann, 3 Dem. 72.) In Crawford v. Nassoy (173 N. Y. 163) the court said: "On the death of the husband the legal title to the property thus reserved for her and specified in the statute vests in the widow. * * * An administrator has no title, possession or right of possession of property which the statute declares is not assets subject to appraisal, but belongs absolutely to the widow." In that case a demurrer had been interposed to a complaint, in which was stated: "Plaintiff's husband died, leaving no minor children and no property except the sum of $110 cash in bank, a couple of watches, a little wearing apparel and household property not exceeding in value $40, and that the whole estate left by him did not exceed in value $150." The defendant had himself appointed administrator, drew the money from the bank, and converted it to his own use. The widow sued him. App. Div.] First Department, November, 1911. * * The court proceeded: "On the face of the complaint it would seem to be plain that the defendant has converted to his own. use money and property that belonged to the plaintiff. The legal title to the property certainly vested in some one upon the death of the intestate. No one can well contend that it vested in any one else but the widow, and the right of possession followed the legal title. * There is no reason why she has not the same remedies to protect or recover her own property that any other owner has. Among the articles which the statute enumerates and gives to her absolutely is wearing apparel. It cannot be that when the law gave it to her it was ever intended that she could not reduce it to possession and enjoyment, except through administration in the Surrogate's Court, and what is true of that is equally true of all the other articles and property described in the statute." The applicability of the exempted property to the payment of funeral expenses has recently been discussed in Matter of Baldwin (67 Misc. Rep. 353) and, I think, correctly disposed of under the authority of Crawford v. Nassoy (supra). The opinion of the learned Special Term in the matter at bar is as follows: "Under section 2713 of the Code of Civil Procedure the estate of the deceased is not entitled to receive money left. by him in lieu of articles specially designated and enumerated in such section." The estate of the deceased is not receiving any money in lieu of said articles, or in any other fashion. The widow in her own right is vested with the fifty-four dollars and it cannot be taken away from her for any purpose. I see no reason why this is not a proper county charge. This soldier did not die leaving sufficient means to defray his funeral expenses, because upon his death this money belonged to his widow. As no other question is raised and the facts are admitted, the order appealed from should be reversed, with ten dollars costs and disbursements to the appellants, and the motion granted, with ten dollars costs. INGRAHAM, P. J., LAUGHLIN, SCOTT and DOWLING, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. First Department, November, 1911. [Vol. 146. LOESER KALINA, Respondent, v. THE AMERICAN LABEL COMPANY, Appellant. First Department, November 3, 1911. Pleading - bill of particulars — action for conversion - date of demand - items of damage statement as to whether demand was in writing. Where in an action for conversion of goods the plaintiff alleges that he duly demanded of the defendant the return thereof on repeated occasions between certain specified dates and specifically upon other specified dates, the defendant is not entitled to a bill of particulars of the dates of the demand as they are sufficiently alleged. Where in such action the plaintiff seeks only to recover the value of the chattel without damages for the retention thereof, the defendant is not entitled to a bill of particulars of the items of damage. But where the defendant in such action denies the demand and claims to be without knowledge thereof, it is entitled to a bill of particulars stating whether or no the demand was in writing, and, if so, to have a copy of it. APPEAL by the defendant, The American Label Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of August, 1911, as denies in part the defendant's motion for a bill of particulars. Harrison B. Weil, for the appellant. Abraham P. Wilkes, for the respondent. LAUGHLIN, J.: The action is for the conversion of "about 400 engravings upon stones, progressive proofs of certain dies and plates," used in and about printing and lithographing, which it is alleged plaintiff delivered to the defendant on the agreement that they were to be returned on demand. The order grants the motion to the extent of requiring a bill of particulars of the names of the person or persons upon whom the demand for the return of the chattels is alleged to have been made, but in other respects the motion was denied. The notice of appeal specifies that the appeal is taken from the order in so far as it denies the motion for a bill of particulars App. Div.] First Department, November, 1911. giving the particular dates, day, month and year, when it is claimed a demand for the return of the chattels was made, and if the demand was in writing, a copy thereof, and also an itemized statement of the damages claimed by the plaintiff. It is alleged in the amended complaint that after the delivery of the chattels and prior to the commencement of the action, the plaintiff duly demanded of the defendant the return thereof on repeated occasions between the 10th day of May, 1909, and the 10th day of September, 1910, and specifically on or about May 10th, May 20th, May 24th, May 25th and the early part of June, 1999, and also on or about September 1st, 1910." We are of opinion that the defendant is not entitled to have the date of the demand more definitely specified in a bill of particulars. The plaintiff only seeks to recover the value of the chattels, and not damages for the retention thereof, and, therefore, the defendant is not entitled to a bill of particulars of the items of the damages. The defendant is a corporation, and it puts in issue the allegations of the complaint with respect to the demand and claims to be without knowledge concerning the same. In these circumstances, we are of opinion that the defendant was entitled to have the bill of particulars show whether or not the demand for a return of the chattels was in writing, and if so, to have a copy thereof set forth in the bill of particulars. The order should, therefore, be modified by inserting a provision requiring the plaintiff to state in his bill of particulars whether or not the demand was in writing, and if so, to set forth a copy thereof, and as thus modified affirmed, without costs. INGRAHAM, P. J., CLARKE, SCOTT and DOWLING, JJ., concurred. Order modified as stated in opinion, and as modified affirmed, without costs. Order to be settled on notice. |