author: Westbrook, J.

text:
    THE MAYOR, Etc., OF THE CITY OF NEW YORK Respondent, v. HENRY W. GENET, Appellant.
    Referenee— long account—laches.

    Appeal from an order of the Special Term, denying a motion made by the defendant for a reference.
    The gravamen of the complaint in this action is, that the defendant has drawn and received from the comptroller of the city of New York a very much larger sum of money than “was due for services, labor and materials necessary for, and which had been rendered and furnished in and about the construction ” and erection of a court-house. The answer denies this allegation. The court held, that though the action was not upon an account, yet the trial of the issue would, doubtless, involve “ the examination of a long account,” which made the cause a referable one.
    The case was upon the calendar of the Circuit Court, for trial, in December, 1874. Instead of moving that court, upon the calendar of which it was placed for trial, the defendant moved in another branch of the same court, before another judge, to take it from the trial court and send it to a reference, and this motion was delayed until the cause was on the day calendar for trial.
    The court was of opinion that it would encourage delay if the discretion of the court should be exercised in favor of the defendant, and that for that reason the reference was properly denied.

      Oliver W. West, for the appellant.

      John E. Parsons, for the respondent.
   Opinion by

Westbrook, J.

Daniels and Brady, JJ. concurred.

Order affirmed with ten dollars costs, besides disbursements, but without prejudice to the right of ttie trial court to make such a disposition of the action as it may see fit to do.


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    CHARLES OBERLEY, Appellant, v. MARCENA M. DICKINSON AND OTHERS, RESPONDENTS.
    Appeal from a judgment entered upon the verdict of a jury, directed by the court.
    Upon the trial of this action, brought by the plaintiff as indorsee of a promissory note, it appeared that he had taken the note from his indorser as security for a debt which had been repaid; the court charged that he could only recove: the difference between what he paid the bank on the protest of the note and what he received from his indorser, to which no exception was taken; the plaintiff’s counsel requested the court to charge that he was entitled to recover the amount of the note, with interest, which charge the court refused; subsequently the jury, under the direction of the court, found a verdict for $4.31, to which no exception was taken, The General Term held, that the plaintiff could not recover the full amount of the note, and that if the verdict was too small, the error was not presented by any exception taken, and affirmed the judgment.

      Wm. H. Nafis, for the appellant.

      C. P. Hoffman, for the respondents.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


author: Daniels, J.

text:
    WILLIAM H. PLACE, Respondent, v. GEORGE GREENMAN, Appellant.

      Commissions for' negotiating sale—when action for cannot he maintained, where plaintiff is employed by loth parties to sale.

    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the court before which the trial was had.
    This action was brought to recover commissions claimed by the plaintiff to be due to him for negotiating the sale of a steamboat belonging to the defendant. The General Term held, that the evidence showed that, at the time of the sale, the plaintiff was employed by the purchaser to examine the boat and report as to its condition and fitness for the purposes for which it was to be used; that the plaintiff’s position under the circumstances of the case was inconsistent with his acting in good faith, and was against good morals and the policy of the law, and he therefore could not recover. (Story on Agency [4th ed.], §§ 30, 210, 212; Watkins v. Cousall, 1 E. D. Smith, 65 ; Pugsley v. Murray, 4 id., 245; Dranghan v. Jinller, 23 La., 237; Moenson v. Thompson, 9 L. T. [Q. B.], 480.)

      Wm. Allen Butler, for the appellant.

      Ira D. Warren, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., concurred. Brady, J., concurred in result.

Judgment and order reversed, and a new trial ordered, costs to abide the event.


text:
    HENRY BERGH and others, Appellants, v. JOHN BUSTEED AND OTHERS, RESPONDENTS.
    Appeal from an order made at the Special Term dissolving an injunction.
    The action is brought by plaintiffs, trustees of the E"ew York College of Veterinary Surgeons, for the purpose of having the election of officers of the board of trustees of the college declared void; that two of the defendants be declared to have forfeited their rights as trustees, and that' it be determined whether any of the parties to this action, other than Van Ranst and Crawford, have forfeited their positions as trustees.
    The only question presented by this appeal was as to the right of certain of the defendants to act as trustees of the college, the decision of which question depended upon the decision in the case of Van Ranst v. The New York College of Veterinary Surgeons, decided at this term and reported ante, at page 620.

      J. J. Macklin, for the appellants.

      Wm. Henry Arnoux, for the respondents Van Ranst and Crawford.

      Wm. F. Macrae, for the other respondents.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order modified, and as modified affirmed, without costs to either party.


text:
    BETHUEL C. WHEELER and HORACE INGERSOLL, Appellants, v. WILLIAM S. SEE, Respondent.

      Evidence, admitted without objection—when not struck out.

    Appeal from a judgment, entered upon the report of a referee. The plaintiffs sued to recover a balance due for feed alleged to have been sold by them to one William H. Mapes. The answer was a general denial.
    The theory of the prosecution was that Mapes was defendant’s agent in conducting a livery stable business in New York city, and that the sales were really upon the credit of the latter. The opinion of the court was principally devoted to an examination of the evidence in the case. The only question of law in the case was one relating to the striking out of certain rebutting testimony given on the part of the plaintiffs, which it was claimed was' not in rebuttal of the defendant’s evidence, and should therefore have been given on the examination in chief; the court at General Term held, that when evidence pertinent to the issue was thus admitted without objection, it should not be stricken out although the enforcement of the strict rule regarding evidence in rebuttal might have prevented its being admitted.

      John B. Perry and W. W. Niles, for the appellants.

      David Thornton, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed and a new trial ordered, costs to abide the event.


author: Davis, P. J.

text:
    JENNIE E. MESSMORE, Respondent, v. ABRAHAM P. BLACK, Appellant.
    This is an appeal from an order entered in this action December 29, 1874, vacating an order of discontinuance and substituting one Daniel Messmore as plaintiff in the action.
    The suit was brought to recover certain life insurance moneys which had been drawn by the defendant herein, and to which the plaintiff claimed to be entitled.
    Upon the trial defendant by way of offset introduced in evidence what purported to be a bond signed by plaintiff, for $750, as security for rent of a certain house belonging to defendant, and which plaintiff and her husband occupied. While upon the witness stand plaintiff swore that she never executed such a bond, and that what purported to be her signature was a forgery. The judge thereupon decided that “ in consequence of the forgery committed by plaintiff’s husband, the house-rent cannot be offset.” Under this ruling the plaintiff became entitled to judgment for between twelve and fourteen hundred dollars.
    After the trial the plaintiff concluded that she might have signed the bond referred to, and she consented to take $400 in full satisfaction of her claim.
    Daniel Messmore then made this application to have the action continued in his name as plaintiff, alleging that he was the owner of the claim against Black, by virtue of an assignment from the plaintiff. The General Term, in view of the conflicting statements contained in the affidavits, modified the order of the Special Term by directing a reference to take proof of the facts alleged in the affidavits, and such other evidence as might be offered, and directed the report of the referee to be made to the Special Term, ten dollars costs and disbursements of appeal to abide event; the present order to stand until further order be made on th.e coming in of the report.

      Erastus Cooke, for the appellant.

      Moody B. Smith, for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Ordered accordingly.


text:
    ALFRED A. KENDALL and another, Appellants, v. ROWLAND K. BRILL, Respondent.
    Appeal, from a judgment in favor of the defendant, entered on the report of a referee.
    This action was brought by the plaintiffs to recover of the defendant the sum of $146.47, for horse keeping, etc.
    The defendant denied any indebtedness to the plaintiffs, and set up a counter-claim to the amount of $875, for the value of a horse and dog-cart alleged to have been sold by plaintiffs for defendant, which counter-claim was denied by the reply of the plaintiffs.
    All the issues in the action were referred to E. H. Pomeroy, Esq., who, after duly hearing testimony, etc., on both sides, rendered his report, allowing the plaintiffs the full amount claimed by them, and also the full counter-claim of defendant, and ordering judgment for defendant, in the sum of $779.15.
    The court, after a quite extended review of the evidence in the case, sustained the findings of the referee, without discussing any legal question.

      Samuel G. Courtney, for the appellant.

      O. D. M. Baker, for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    CAROLINA OBERLANDER and CHARLES OBERLANDER, Appellants, v. CONSTANTIN ROSSWOG, and another, Respondents.
    This is an appeal from a judgment entered on the report of a referee, dismissing the plaintiffs’ complaint, with costs.
    This action is upon false representations made by the defendants, respecting certain bonds, by which the plaintiffs were induced to accept them as payment in part for real estate sold to the defendants.
    The court, after a very careful examination of the evidence, concluded that the statement of the defendant that “ as far as he knew the bonds were good,” was substantially a statement that they were worth their face, and as he in fact then knew that' they were selling very much below par, that such statement was intended to convey, a false impression, especially as the bonds were assumed, in the arrangement for the sale of the real estate, to represent their par value.

      Henry D. Beman, for the appellants.

      Stephen H. Olin, for the respondents.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, and new trial ordered, costs to abide event.


text:
    LUKE MALLOY, Respondent, v. ANN McCONNELL, Appellant.
    This is an appeal from a judgment against the defendant for $752.50, entered upon the report of a referee.
    The action was brought to recover the value of a quantity of horse feed alleged to have been sold and delivered by plaintiff to defendant, who was executrix of her husband’s will, after the death of the testator, for the use of the testator’s estate, alleged to have been used in the feeding of horses belonging to said estate. •
    The General Term, after a review of the facts, held, that the exclusion of evidence tending to show that the defendant did not hold the horses as part of the assets of the estate, and that they belonged to another person, was error, more especially because there was no original contract with-defendant in relation to the feed, and if she did not own the horses, her promises to pay for the feed could not be enforced, as they would be made in such case to pay the debt of a third person and be void under the statute of frauds.

      Lewis Johnston and Albert Mathews, for the appellant.

      Nathaniel A. Prentiss, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., concurred in result; Daniels, J., concurred.

Judgment reversed and new trial ordered, costs to abide the event.


text:
    THE CONTINENTAL NATIONAL BANK, Respondent, v. RUSSELL W. ADAMS and another, Appellants.
    Appeal from an order made at Special Term, setting aside a verdict in favor of the defendant, and granting a new trial, on the ground of surprise.
    The General Term held, that the plaintiff was led, by statements of the defendant, to believe that no serious defense would be interposed at the trial, and that relying thereon he failed to ¡summon a material witness, and therefore affirmed the order- (Jackson v. Warford, 7 Wend., 62; Chamberlain v. Lindsay, 8 S. C. [1 Hun], 231: Tyler v. Hoornbeck, 48 Barb., 198.)

      Wm. A. Jenner, for the appellants.

      J. S. Bosworth and Edward F. Brown, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred."

Order affirmed, with ten dollars costs and disbursements.


text:
    HENRY ALKER, Public Administrator, and as such Administrator, etc., of ALANSON MARSH, Deceased, Respondent, v. MORITZ SALOMON, EMANUEL SALOMON and CHARLES SALOMON, Appellants.
    Appeal from a judgment entered on the verdict of a jury, rendered at Circuit, and from an order denying a motion for a new trial.
    Action for money laid out and expended, and charges and commissions incurred and earned by the respondent’s intestate, while acting, as was alleged, as broker for the defendants in the sale and purchase of gold. The court, after reviewing the evidence, concluded that no error had been committed on the trial, and affirmed the judgment and order.

      E. L. Fancher, for the appellants.

      A. J. Requier, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Judgment and order affirmed.


text:
    THOMAS D. PENFIELD, Respondent, v. SARAH JAMES AND OTHERS.
    This is an appeal from an order made by Justice Donohue, on the 19th day of December, 1874, requiring Charles A. Seavey to complete his purchase on a sale made in this action, under the judgment of foreclosure herein.' The purchase by Seavey was at a second sale ordered in consequence of the failure of first buyer to complete his purchase.
    The court was of opinion that most of the points and objections raised by Seavey had already been decided on an appeal taken by the first purchaser, and affirmed the order with ten dollars costs and disbursements. [The decision of the appeal taken by the first purchaser will be found ante, page 69.]

      Isaac L. Egbert, for the appellant.

      Cyrus Lawton, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    THOMAS KENWORTHY, Respondent, v. JOHN D. PHYFE AND OTHERS, APPELLANTS.
    Appeal from an order, made at the Special Term, denying a motion to amend the answer.
    The General Term held, that, upon the. facts .of the case, it would not be in furtherance of justice to grant the amendment, and affirmed the order.

      Geo. W. Denton, for the appellants.

      Lockwood & Crosby, for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs besides disbursements.


text:
    GEORGE A. CROFUTT, Respondent, v. ARMSTEAD C. HENRY, Appellant.
    Appeal from an order made at the Special Term denying a motion to set aside an inquest.
    The General Term was of the opinion that the papers read on the hearing failed to disclose any defense to the action, and affirmed the order.'

      Wm. A. Boyd, for the appellant.

      Samuel H. Randall, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., concurred.

Order affirmed, with ten dollars costs besides disbursements.


text:
    ZACHARIAH DEDERICK and others, Respondents, v. E. A. McALLESTER, Appellant.
    . Appeal from a judgment in favor of the plaintiffs, entered on a verdict directed by the court.
    The General Term was of the opinion that the evidence was such as to authorize the judge to direct a verdict, and affirmed the judgment.

      Steele & Boyd, for the appellant.

      John A. Mapes, for the respondents.
   Opinion by

Davis, P. J.

Daniels and Lawrence, JJ., concurred.

Judgment affirmed.


text:
    EUGENE MIANNAY, Respondent, v. JOSIAH FLETCHER AND OTHERS, APPELLANTS.
    Appeal from a j udgment in favor of the plaintiff, entered upon the report of a referee.
    The General Term held, that the findings of the referee were justified by the evidence,, and affirmed the judgment.

      J. K. Hayward, for the appellants.

      D. R. Jaques, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


text:
    THE PACIFIC MAIL STEAMSHIP COMPANY, Appellant, v. RICHARD B. IRWIN, Respondent.
    Appeal from an order made at Special Term, denying motion to strike out an answer as irrelevant, etc. The decision below was affirmed at General Term, the court being of opinion that the allegations which -it was asked to strike out, were material, and properly in the answer.

      H. S. Bennett, for the appellant.

      W. H. Scott, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs besides disbursements.


text:
    MARVIN J. MERCHANT and another, Appellants, v. MILO M. BELDING and others, Respondents.
    Appeal from a judgment recovered on the report of a referee. The question in the case was one of fact as to plaintiffs’ employment by defendants.'
    The General Term held, that the referee was fully warranted by the evidence in taking the view which he did of the plaintiffs’ case. He held them not entitled to recover, and the judgment entered upon his report was affirmed.

      Francis C. Bowen, for the appellants.

      W. B. Putney, for the respondents.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


text:
    THE AMERICAN NATIONAL BANK, Respondent, v. JOHN Z. WESTERVELT, Jr., Impleaded, etc., Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The only question presented by this appeal was whether or not the referee erred in rejecting a counter-claim set up by the defendant. The General Term held, that the evidence was not sufficient to establish the claim, and affirmed the report.

      Hayward & Crawford, for the appellant.

      Moody B. Smith, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


text:
    CAROLINE M. CAMPBELL, Administratrix, etc., Respondent, v. WILLIAM HOGE, Impleaded, etc., Appellant.
    Appeal from an order of reference, made at the Special Term. The General Term held, that the action, as stated in the complaint, was referable, and affirmed the order. ( Welsh v. Darragh, 52 N. Y., 590.)

      John E. Burrill, for the appellant.

      George H. Forster, for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


text:
    FREDERICKE E. KUSE, Administratrix, etc., Respondent, v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.
    Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The only exception insisted on upon this appeal was that the court should have dismissed the complaint. The General Term held, that the evidence was such as to require a submission of the case to the j ury, and affirmed the order.

      Calvin G. Child, for the appellant.

      D. R. Jaques for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.


text:
    BERNHARD MAYER, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.
    The General Term, at the October term, in 1874, overruled a demurrer to the complaint in this action, the opinion being reported in 9 Supreme Court Reports (2 Hun), 306. The General Term held, that no new questions were presented upon this appeal, and adopted the former opinion as a sound exposition of the law.

      D. J. Dean, for the appellant.

      Neville & Andrews, for the respondent.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Judgment affirmed.


text:
    In the Matter of the Petition of HENRY BAINBRIDGE and others, Executors, to have Revived and Continued an Action commenced and pending between RICHARD BAINBRIDGE, Plaintiff, and CHAS. F. LIVERMORE and others, Defendants.

      Revival of action.

    Appeal by defendants from an order made at Special Term, granting leave to revive, etc. . The application was not made until several years after the death of the party, the plaintiff being under a stay of proceedings.
    The court held, that the revival of an action by the representatives .of a deceased plaintiff, was not a proceeding contemplated by, or embraced within the prohibition of a stay of proceedings. • That it could not be regarded as a proceeding other than to prevent the abatement of the action. That the authorities required the motion to revive to be made within the year, under section 121 of the Code. (Allen v. Walter, 10 Abb., 379; Matter of Bornsdorff v. Lord, 41 Barb., 211; Coon v. Knapp, 13 How. Pr., 175; Gordon v. Sterling, id., 405 ; Greene v. Bates, 7 id., 296.)

      E. P. Wheeler, for the appellant.

      Robert Sewell, for the respondents.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars costs besides disbursements.


author: Boardman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. THE CITY OF ALBANY, THE ALBANY AND GREENBUSH BRIDGE COMPANY and another, Appellants.

      Right of city to dispose of its property—when court of equity will interfere — Ferry franchises — sale of, by municipal corpoiation.

    Although a city, in a certain sense, holds all its property, franchises and powers in trust for its inhabitants, yet such property may be sold and conveyed by it, except where the property has been conveyed to it in trust for a specific purpose within its proper province, in which case a court of equity will interfere to prevent a misappropriation of the fund or a misuse of the property.
    All property of a private nature belonging to a corporation, upon which no specific trust is imposed, may be sold by the corporation; but property of a public nature, such as streets, etc., so long as they are held for the public-use, cannot be sold.
    Where the legislature has granted to a city the exclusive right to establish and control the ferries therein, and a ferry has been established and for a long time maintained at a particular point therein, the city may, at its pleasure, sell and convey the real estate owned by it in connection with such ferry to any person, provided the public be not cut off, by the sale, from the means of intercommunication.
    Appeal from an order made at the Special Term, granting an injunction restraining the city of Albany from conveying to the Albany and Greenbush Bridge Company what is known as the south ferry property, and the real estate connected therewith, and restraining the bridge company from taking or using the said premises for the purposes of erecting a bridge over the Hudson river át that point.

      A. J. Colvin and A. J. Parker, for the City of Albany and the Albany and Greenbush Bridge Company, appellants.

      Grenville Tremain, for the Mayor of Albany.

      H. Smith and W. P. Prentice, for the respondents.
    The granting and continuing of injunctions rests in the discretion of the court, to be governed by the nature and circumstances of the case. When granted upon a thorough examination of the whole case, pendente lite, where immediate relief is necessary to prevent irreparable injury, and its continuance involves nothing of importance except delay until the case can be tried and its issues upon important questions decided, the action of the court below will not be reviewed. (Vandewater v. Kelsey, 1 N. Y., 533 ; Selden v. Vermilye, id., 534; Paul v. Munger, 47 id., 469.) And this is the case, even though the answer deny the equities of the complaint. (Roberts v. Anderson, 2 Johns. Ch., 202; Carpenter v. Danforth, 19 Abb., 225 ; Attorney-General v. Cohoes Co., 6 Paige, 133; Malcolm v. Miller, 6 How. Pr., 456 ; Dubois v. Budlong, 15 Abb., 445; Litchfield v. Pelton, 6 Barb., 187.) The power to grant the injunction in the first place cannot be denied. (Attorney-General, etc., of N. Y. v. The Mayor, etc., 3 Duer, 119; People v. Sturtevant, 2 N. Y., 263; People v. Mayor, etc., 9 Abb., 253; People v. Vanderbilt, 26 N. Y., 287; Lawrence v. Mayor, 2 Barb., 577; Benson v. Mayor, 10 id., 223.) The right of the plaintiffs to maintain this suit and seek this remedy, cannot be questioned. (The People v. The Mayor, 32 Barb., 102; The People v. The Mayor, 10 Abb. Pr., 144; Bensen v. The Mayor, 10 Barb., 223; The People v. The Canal Board, 55 N. Y., 390; The People v. Vanderbilt, 38 Barb., 282.) The corporation of the city of Albany has not the right to sell the “ south ferry property ” to the Albany and Greenbush Bridge Company. (People v. Kerr, 27 N. Y., 189; Davis et al. v. The Mayor, etc., of N. Y. et al., 14 id., 506; Kellinger v. Forty-second St., etc., R. R. Co., 50 id., 208.) The charter (see title 1, § 3, and title 3, § 13 ; Laws of 1870, p. 159) gives only the power “ to establish, license and regulate all ferries,” and not to destroy a ferry in existence before the act was passed. No additional powers in the common council are to be inferred. This ferry is held for the public use, and the only rights the city of Albany has over it are as of a trust publici juris, not for the people of the city alone, but for the people of the whole State, and as an agent. (People v. Kerr, 27 N. Y., 181; Davis and ors. v. Mayor, etc., of New York, 14 id., 506 ; People v. Vanderbilt, 38 Barb., 282; Kellinger v. Forty-second Street, etc., R. R., 50 N. Y., 208, and cases above cited.)
   Boardman, J.:

By an act of the legislature (chap. 269, Laws of 1872) the Albany and Greenbush Bridge Company was constituted a body corporate, with power to build a bridge across the Hudson at Albany, at some point to be determined by commissioners in the act named. By this act the bridge company was authorized to take and hold the necessary real estate for that purpose. The bridge company was duly organized under said act, the capital stock subscribed, and, in the fall of 1874, the site of said proposed bridge was located opposite the south ferry property. This south ferry property had long been owned by the city of Albany, and used in connection with a ferry at that point between Albany and Greenbush. In October, 1874, such proceedings were had by and between the bridge company and the city, that the common council of the city passed a resolution for the sale of this south ferry property- to the bridge company, for the sum of $23,500. This resolution was vetoed by the mayor, but was, on the seventh of December thereafter, passed over the mayor’s veto. In connection with the resolution for the sale as finally passed, provisions, conditions, contracts and penalties were imposed, or to be imposed, in connection with the sale and conveyance of the property, upon the bridge company, to obviate, as far as was thought practicable, any danger of obstruction to the navigation of the river. These resolutions and provisions were acceded to by the bridge company, and made a part of the contract for the purchase of the real estate.

At this stage of the business this action was commenced, and soon after the injunction was procured. The principal, if not the only, reason assigned for granting the order, was this: That the city owned the south ferry real estate, in connection with the ferry, by such a title, and under such trusts, that a sale thereof, or of such real estate, was impossible, illegal, and in violation of the trust; that the ferry franchise and property belonged to the city, and was and is inalienable by the city without legislative sanction.

Upon this appeal, we are called upon to decide whether this view taken by the learned judge at Special Term is correct, or whether, on the contrary, the city has not the right, power and authority to sell the real estate in the same manner and with the like effect with any other lands owned by it. We think the court at Special Term was right in saying that was the only subject in dispute. The right of the legislature to pass the act of 1872 is conceded. The right of the Albany and Greenbush Bridge Company to erect a bridge between Albany and Greenbush, under and by virtue of that act, must also be conceded. The location of the bridge cannot be a subject of controversy. If the city cannot sell this real estate, and the bridge company cannot acquire title thereto, the location at that point is settled and rendered impossible; but "if title can be made, the location at that point may be sustained, so far as any ■ determination of this appeal can affect it. Nor is it of any importance whether any location of the bridge has yet been made. The effort to purchase is with the intent to locate at that point. For that purpose, the company has the right to acquire real estate; and this court cannot adjudge, upon this application, that the company cannot, -within the act of the legislature, purchase this property, for the reason that it is not necessary. Equally foreign from our present consideration are the possible or even probable consequences to result to commercial and business interests from the erection of a bridge at the proposed locality. We have no power to enjoin the building of a bridge sanctioned by the legislature, nor have we any control over its location, except as other interests and rights are visibly and wrongfully affected. Divested of these extraneous matters, there remain to be decided two questions only: Has the city the right to sell and convey to the bridge company the real estate, known as the south ferry property, for the uses and purposes contemplated by said company ? If it has not that right, can the people of the State of New York maintain this action to restrain the city, or are they proper parties plaintiff in this action ? The plaintiffs claim that the city has not the power of sale, because it holds the property in trust, and such sale would be in violation of such trust. Neither the complaint nor any of the moving papers assert the existence of any such trust, or claim relief" by reason of any threatened breach of trust on the part of the city or its officers. Does such a trust as will prevent this sale exist ? In a certain sense the city holds all its property, franchises and powers in trust for the inhabitants. But it is not contended that property so held may not be sold and conveyed as effectually as by an individual. But where the property is conveyed to the-municipal corporation in trust for a specific purpose within the proper province of a corporation, equity will assert its jurisdiction to prevent a misappropriation of the fund or a misuse of the property. Is this real estate held by such a title? By the Dongan charter, power was given to Albany to establish, etc., all ferries? etc., “ necessary, needful and convenient for the inhabitants of said city and the parts adjacent, and for travelers there.” The franchise thus given is not exclusive. Afterward the legislature of the State of New York, in which the power alone existed, gave to the city the exclusive right to establish and control ferries. (Laws of 1826, p. 201, § 48 ; 1842, p. 361; Laws of 1870, p. 159, § 3.)

By these acts, the city of Albany has acquired not merely a legislative power, but a proprietary right. (Aikin v. Western R. R. Co., 20 N. Y., 370.) If the city was thus the absolute owner of this franchise and property by legislative grant, it could sell and convey such corporate estate at its pleasure. (Costar v. Brush, 25 Wend., 628.) It was held as its city hall, or jail, or other property, and was in no sense a trust estate inalienable. All property of a private nature belonging to a corporation may be sold. The right of sale, if not expressed in its charter, will be implied. The right to hold such property carries with it the right by implication to sell; but.property of a public nature, such as streets, squares and parks, so long as they are held for the public use, cannot be sold. Doubtless the same rule would apply to a ferry franchise if the public were, -by its sale, to be shut off from the means of inter-communication. In the present case the real estate in question is private property, kept for profit in connection with the ferry franchise. The location of the ferry is in the discretion of the city. It need not necessarily be in its present location. If its site is removed to another point, this real estate is no longer necessary for the city, and may be sold. Should a bridge be erected near this ferry, so as to render it worthless and incapable of being run with profit, it cannot reasonably be contended that the city would not have the right to convert this real estate to other uses, or to sell it. The same would be true if the city removed the ferry to some other point. The real estate is not therefore any part of the ferry franchise ; nor is it held by any inalienable title arising from the terms of the grant, or the uses for which it was granted or is used. If the city has the power to convey, the location of the bridge at that point is not in itself objectionable. As the ferry is for the public use and convenience, so will the bridge be. Experience is fast demonstrating that bridges are better and more useful than ferries. The rights of trade, commerce and travel by the course of the river, are to be recognized and protected ; but such rights are not superior to those of trade and travel across the river, and each must yield something of its best interests to the necessities of the other.

Having concluded that the south ferry real estate was alienable by the city, and that the contemplated sale was not illegal or in violation of any trust or duty by the city of Albany, it will necessarily follow that this action cannot be maintained. Hence, it becomes unnecessary to consider the right of the people to bring this action.

If any injury shall arise by the wrongful dissolution of this injunction, it will fall most heavily upon the bridge company, if it shall proceed to expend its money in the erection of a bridge before the final termination of this action. ' As this decision is not final and conclusive, the bridge company will act at its peril in the further prosecution of its enterprise. Such consequences are a suificient guarantee against any reckless or indiscreet conduct upon its part.

I think the order of the Special Term granting the injunction should be reversed, with ten dollars costs and expenses of printing, to be paid by the plaintiff to appellants, and the motion for an injunction denied with ten dollars costs.

Present—Learned, P. J., Boardman and James, JJ.

Ordered accordingly.


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    THE TOWN OF PIERREPONT, Respondent, v. WILLIAM D. LOVELASS and others, Appellants.

      Service of subpcenas — expense of, cannot be included in costs.

    The expenses incurred by a party in serving subpoenas upon witnesses, cannot be allowed by the clerk as a necessary disbursement, under section 311 of the Code.
    Appeal from an order made at the Special Term, denying a motion of defendant for a retaxation of costs, and for the striking therefrom the sum of $55.66, charged and allowed the plaintiff for serving subpcenas upon witnesses.

      Parker & McIntyre, for the appellants.

      Sawyer & Russell, for the respondent.
   Boardman, J.:

The clerk was wrong in allowing the plaintiff the expenses incurred in serving subpcenas upon witnesses. The necessary disbursements, under section 31.1 of the Code, are not intended to cover ordinary disbursements of the parties to suits, but only such as are incident to the regular proceedings in the action. (Case v. Price, 17 How., 348.) It has been held that the “ fees allowed by law” are those, only, given by 2 Revised Statutes, 634, etc. (Dewitt v. Swift, 3 How., 280; 6 Leg. Obs., 314; Moore v. Cockroft, 9 How., 479), or the Code. No allowance was given by the Revised Statutes for such services (Rogers v. Rogers, 2 Paige, 460, 464), nor does the Code make any such specific allowance. But, by section 303, certain allowances are authorized by way of indemnity for the expenses in the action.”

I think the practice of the profession is hostile to such an allowance. I find no authority for it. On th e con trary, th ere is a uniform current of opinions recognizing such charges as improper. (Burnett v. Westfall, 15 How., 430, where the point is directly decided at Special Term; Wheeler v. Lozee, 12 id., 446, where it is inferentially decided; Voorhies’ Code, 1864, p.615 ; 3 Wait’s Pr., 5Q4; Wait’s Code., 622; 2 Whittaker Pr., 948; Howard’s Code, 518; 2 N. Y. Pr. [Tif. & Sm.], 436; 2 Til. & Shearm. Pr., 630.)

In hostility to this view, I do not find a single case or text writer since the Code. Tillinghast and Shearman (supra), while recognizing the law as stated, think it wrong, and that at least twelve and one-half cents should be allowed for each witness subpoenaed, in analogy to the old chancery practice, citing 2 Paige, 458, and 6 Paige, 110.

The court has power, by extra allowances in proper cases, to reimburse a party to some extent for extraordinary expenditures. Full indemnity is not contemplated, nor are the allowances of costs fixed by the Code upon any such idea.

I think it better to rely upon the power undoubtedly possessed by the courts, than to adopt a rule which might, and in many cases would, lead to intolerable consequences. The process of subpoenaing witnesses falls naturally into the hands of the party, or his agents and servants. Hot infrequently the same persons who serve the process, ascertain and decide whether the witness is necessary or not. Hor is there any principle upon which banks, railroads, insurance companies, or other corporations, should be an exception to the rule. If allowed at all, it would be as compensation of time and labor. An individual is as well entitled to such compensation as an officer or the agent of the corporation.

I think the order of the Special Term should be reversed, with ten dollars costs and printing fees, and that the motion for readjustment, and for striking out as herein stated, should be granted.

Present — Learned, P. J., and Boardman, J.

Ordered accordingly.


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    NATHANIEL ENGLISH, Plaintiff, v. THE PRESIDENT, Etc., OF THE DELAWARE AND HUDSON CANAL COMPANY, Defendant.

      Removal of passenger from railroad cm' — Evidence of attempt to avoid payment of fa/re on other occasions — Right to resist conducto).

    In an action brought for the recovery of damages, alleged to have been sustained by the plaintiff by being improperly removed from defendant’s cars after having paid his fare, evidence going to show that on other occasions plaintiff had done acts showing an attenipt to avoid payment of his fare, is properly rejected.
    A charge that plaintiff had a right to resist the conductor’s attempt to put him off the car, if he was rightfully there, held, proper

    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict for plaintiff.
    The action was for damages caused to plaintiff by his being illegally ejected from defendant’s cars, upon a claim of non-payment of fare.
    The defendant claimed, among other things, that the evidence of a witness, named Martin, as to the credibility of the plaintiff, was improperly admitted, as he was not shown, as defendant claimed, to have had knowledge of his reputation, or to have lived in the neighborhood of the plaintiff.

      O. W. Chapman, for the plaintiff.

      J. G. Runkle, for the defendant.

       See, upon this point, Townsend v. N. Y. C. and H. R. R. R. Co. (56 N. Y., 301). — Rep.

   Boardman, J.:

By the verdict of the jury it is established that the plaintiff had once paid his fare when it was a second time demanded, and that, as a consequence, his ejection from the cars was wrongful. It is also determined that the action of the conductor was within his authority, and in the line of his duty, as he claimed the facts to be. The amount of damages is also fixed by the verdict. None of these questions can properly come before us upon this motion for a new trial. Nothing but the exceptions taken upon the trial is. here for review. (3 Wait’s Pr., 433, and cases cited.)

The exceptions may be briefly disposed of. Defendant offered to show that plaintiff, on other occasions, had done things which would justify the jury in imputing to him a motive to avoid payment of fare. If, on this occasion, he had paid his fare, he was entitled to his passage, whatever his past conduct may have been.

Martin’s evidence as to plaintiff’s character was admissible for what it was worth. The distance Martin lived from plaintiff, the degree of acquaintance with plaintiff, and with the community in which plaintiff lived, were elements in the value of Martin’s estimate of character, but do not affect its admissibility.

There was no error in the charge that plaintiff had the right to resist the conductor’s attempt to remove him from the car, if rightfully there. The conductor was in the wrong, and plaintiff had a right to resist such wrong. Whatever consequences followed such resistance, are chargeable to defendant, so long as the conductor was engaged in putting plaintiff off the cars. Especially is this true when the attempt to put him off was while the cars were still in motion. Self preservation was a sufficient justification of extreme resistance. (Sanford v. Eighth Av. R. R., 23 N. Y., 343; Hamilton v. Third Av. R. R., 35 Supr. Ct. R., 118.)

The charge of the learned judge was eminently fair, and as favorable to defendant as could be properly demanded.

The facts have been determined by the jury, and cannot be reviewed upon this motion. No error appears in the rulings or charge of the court.

The motion for a new trial must therefore be denied, and judgment ordered for the plaintiff on the verdict, with costs.

James, J., concurred.

Judgment affirmed, with costs.


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    RICHARD F. HARRISON, Appellant, v. JAMES L. CLARK, Respondent.

      Justice of the peace—jurisdiction of—liability of for issuing warrant on defective affidavit.

    The defendant, a justice of the peace, issued a civil warrant for the arrest of the plaintiff, upon an affidavit which failed to state that plaintiff was a resident of the county and not a freeholder, when in fact he was a resident of the county and a freeholder. Held, that the justice acted judicially in passing upon the sufficiency of the affidavit, and that he was not liable to an action for false imprisonment for causing the arrest of the plaintiff.
    Appeal from a judgment dismissing the complaint in an action for false imprisonment, brought against the defendant, a justice of the peace; for issuing a civil warrant upon a defective affidavit.

      A. X. Parker, for the appellant.

      Sawyer & Russell, for the respondent.
   Boardman, J.:

The defendant, as a justice'of the peace, had jurisdiction to issue process against the plaintiff. As justice he had jurisdiction of the subject-matter for which his process issued. An affidavit was presented containing most of the facts necessary to justify the issuing of a civil warrant. But it was deficient in not stating that Harrison was a resident of St. Lawrence county, and not a freeholder. In fact Harrison was a resident of the county, but he was a freeholder, so that he was not within the statute authorizing a civil warrant. Upon such affidavit the warrant was issued, and Harrison constructively arrested. Upon the hearing before the defendant, after one adjournment, plaintiff was discharged. The plaintiff now brings this action against the justice for false imprisonment. Upon the trial the complaint was dismissed, upon the ground that defendant acted judicially in issuing the warrant upon such affidavit. Upon the authority of Rogers v. Mulliner (6 Wend., 597), the dismissal of the complaint would be justified, upon the principle that defendant was acting ministerially in issuing a process within his jurisdiction at the request of a party, so long as such act was in good faith. That was a civil warrant issued without any oath whatever. In this case the warrant was applied for on the affidavit of Mary A. Stone.

But I prefer to sustain this judgment upon the ground that the defendant, acting as a court of limited powers, had jurisdiction of the subject-matter involved, and the right to issue process against/ Harrison. The affidavit being presented to him, he was called upon to determine and decide as to the appropriate process. In so doing he acted judicially, and if he erred, his proceedings were voidable, but not void. (Horton v. Auchmoody, 7 Wend., 200; Stewart v. Hawley, 21 id., 554; Lewis v. Rose, 6 Lans., 206.) That he was acting judicially in passing upon the sufficiency of the affidavit, is shown by the cases of Stewart v. Brown (16 Barb., 367, 369); Harman v. Brotherson (1 Denio, 537); Payne v. Barnes (5 Barb., 465, 467). Even in cases where the affidavit, as to the essential facts, was upon information and belief, the officer will acquire jurisdiction. (Campbell v. Ewalt, 7 How., 399 ; Harman v. Brotherson, supra.)

I am aware of cases which hold that the officer does not acquire jurisdiction where the preliminary papers are not such as to authorize the issuing of process. While such cases are just as to others than the justice, I think a different rule should and does apply to him when acting in good faith, and when such action is founded upon a judicial determination as to the sufficiency of the affidavits, bonds ór other papers presented to him as the basis of his action.' I am the more willing to accept such conclusion in this ■ case, since the plaintiff was not restrained of his liberty or controlled in his movements, except voluntarily to attend before the justice, and suffered little beyond nominal damages by reason of defendant’s action.

I think the judgment should be affirmed.

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed, with costs.


author: Learned, P. J.:

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    CALVIN GRAVES, Surviving Executor, etc., v. RENSSELAER WATERMAN, Administrator, etc., Appellant, and HELEN STEWART, Administratrix, etc., Respondent.

      Trustee — may purchase from cestui que trust.

    There is no rule of law which prevents a trustee from purchasing from a cestui que trust his interest in the trust estate. But the courts will examine all such transactions with care, in order to see that no undue advantage has been taken of the cestui que trust.

    Appeal from a judgment in favor of the defendant Helen Stewart, administratrix, etc., entered on the report of a referee.
    This is an action of interpleader, brought by the surviving executor of Chandler Root, deceased, to determine which of the two defendants is entitled to that residuary share of the estate of Chandler Root, which, by his will, was given to Erastus C. Root, deceased. One of the defendants, Helen Stewart, is the administratrix of Erastus C. Root, deceased, and claims as such administratrix. The other defendant, Rensselaer Waterman, is administrator of Mary Ann Root, deceased, and claims, as such administrator, by virtue of a certain assignment, made by Erastus C. Root to said Mary Ann Root, who was his mother.
    By the will of Chandler Root, after the payment of certain legacies, so much of the estate as would produce $600 per annum for the widow during her life, was to be set apart. At her death this principal sum was to go equally to his heirs. All the residue of his estate was to be divided equally among his children, when the youngest should arrive at twenty-five. That event took place May, 1873, and Mary Ann Root had died in February, 1871. Erastus C. Root was one of the five children, and it is his share of the residue (including that set apart for the widow’s income) which is in dispute.
    After Erastus ' 0. Root had become of age, and in 1857, he received his specific legacy, under the will, of $4,000; went into business and became insolvent. Afterward, in 1858, he returned to the house of his mother, Mary Ann Root, and she boarded and clothed him, and furnished him with necessary spending money till the fall of 1869. He then went to New York city to attend medical lectures, and Mary Ann Root furnished the necessary moneys from her own funds. After his return to his mother’s house from attending said lectures, and on the 26th day. of March, 1860, he executed, at her request, under hand and seal, a writing, assigning to her all his right, title and interest, which he had as heir at law, devisee or legatee of Chandler Root. The consideration, as expressed therein, was one dollar, and the aid and assistance furnished him by her in boarding expenses, while endeavoring to qualify himself to practice medicine. The instrument was duly acknowledged and delivered March 27, 1860, and was recorded in the clerk’s office, January 14, 1861. He continued to board with his mother till the fall of 1860, and she paid his expenses. He then went again to New York to attend medical lectures, and his mother furnished him money to pay his expenses. About November, 1861, the said Mary Ann Root, from her own means, furnished him with from $300 to $400, to purchase g,n outfit as second lieutenant in the army.-
    At the time when he made the assignment, he was indebted to sundry persons, which debts have not been paid. He died in the spring of 1866. His widow married again, and was appointed his administratrix, September 13, 1869.
    Mary Ann Root was an executrix of the will of Chandler Root, and there were three executors. She did not attend personally tó any of the duties of receiving, investing and disbursing the moneys and funds of the estate.
    This case was tried before a referee, who reported in favor of Helen Stewart, administratrix. Rensselaer Waterman, the administrator of Mary Ann Root, appeals.

      Samuel A. Bowen, for the appellant.

      H. Sturges, for the respondent.
   Learned, P. J.:

. The first claim of the administratrix of Erastus C. Root, is, that the assignment was void, because it was made to hinder, delay and defraud creditors. The referee does not so find ; and there was no evidence of such actual intention. Although no consideration passed at the time of executing the assignment, yet the assignee, Mrs. Root, had supported the assignor for two years, and had paid his expenses in attending medical lectures. It is not shown how much she had paid. But we cannot assume that it was so inadequate as to indicate fraud. The assignment was’ public. Creditors seem to have made no attack on its validity for the six years, from its execution till the death of Erastus C. Root. And it must be remembered that the share which was assigned, was not payable until the death of Mrs. Root, so that its value, estimated at the time of the assignment, was much less than it now is.

Second. It is suggested that Erastus C. Root was entitled to his support from the estate under the third clause of the will. But a fair construction of the whole is, that the support was only till he was of age. The widow, as guardian, was to educate and support the children while under lawful age.” A legacy of $4,000 to each child was to be paid to the sons as they came of age. It is reasonable to understand that the claim for support was then to cease.

Third. But the real ground of the claim made by the administratrix, and that upon which the referee has decided in her favor, is, that the assignment was void, because it was “ such a dealing with the property in trust as is forbidden by law.” The administratrix urges that Mary Ann Root was a trustee, and that a trustee may not deal with the subject of the trust. This is undoubtedly a well settled rule. Its meaning is, that a. trustee, holding trust property, cannot, by any transaction with himself, change that property into his own. He cannot make a bargain with himself. This principle is thoroughly explained, and numerous cases are cited, in Gardner v. Ogden (22 N. Y., 327). The trustee, by making what purports to be a sale of the trust property to himself, does not change the character in which he holds the property. And so if, as trustee, with trust moneys, he buys from himself, the sale is invalid. And the principle is so well settled, that the courts will not inquire, at the instance of the trustee, whether the bargain may not, in fact, have been beneficial to the cestui que trust but will hold it to be void.

But that rule does not apply to the transaction in question. Mary Ann Root, as executrix, did not attempt to sell to herself, in her own right, any trust property. Nor did she, in her own right, attempt to buy from herself, as executrix, any trust funds. If she had, as executrix, sold and transferred to herself in her own right, a part, of the whole, of the securities which she held, that would have been a transaction within the rule ; and at the instance of Erastus C. Root, the cestui que trust, it could have been declared void.

A single consideration will show the distinction. In all' these' instances, where dealing with trust property by a trustee has been held void, it has been done on the application of the cestui que trust. If he chooses to affirm the transaction, he may; and he can thus hold the trustee to the attempted bargain. Now in the present instance, Erastus C. Root was the very party with whom the transaction was had. He affirmed it when it was made. His executrix cannot disaffirm.

But furthermore: a purchase by a trustee from his cestui que trust, of the latter’s interest in the trust property, is not in the least within the rule above mentioned, or within its reason. It is not a buying from himself. It is not a dealing with the trust property. It is a dealing simply with the cestui que trust. The rule is often said to rest on the inconsistency of permitting the same person to be both buyer and seller. That inconsistency does not exist in a case like this. We may put this in another light. Could not Mary Ann Root have paid Erastus C. Root his share, at that time, if she had chosen so to do ? And if she had done this, would the transaction have been affected, by her taking an assignment to herself of his interest ? For we must notice that the claim of the administratrix is not that Mary Ann Root did not pay enough to her son ; but that she could not buy at any price. The rule on which the administratrix insists, correctly stated, is not that the trustee shall not deal with the cestui que trust, but that he shall not deal with the trust property. The distinction may be illustrated by reference to the case of Gardner v. Ogden. In that case the plaintiff had made the defendant his agent to sell land. The agent (or rather his clerk, who of course stood in the same position) negotiated a sale to this clerk. The plaintiff did not know that if was his agent’s clerk who was making the purchase, and the sale was declared void. But let us suppose that the agent, operil/y and i/n his own name, had made an offer to the plaintiff for the land, and the plaintiff, knowing that it was his agent who made the offer, had accepted it, would such a sale have been held void ? Clearly not. It would have lacked the very element which made the actual transaction in that case objectionable.

Fourth. But there is another principle applicable to this present case, which the court below may have confounded with that above discussed. That principle is, that a court of equity will scrutinize carefully all transactions between persons standing in' a confidential relation, one to the other. And, therefore, the circumstances under which this assignment was made, may be examined in order to see whether undue advantage was taken. Now, on this point it is important to observe, that no claim of this sort was made by the administratrix. Her position seems to have rested solely on the alleged illegality of the transaction. Nor is there any evidence to lead to the conclusion that Mary Ann Root took advantage of her son in obtaining this assignment. He was a man of full age; capable, so far as appears, of taking care of himself. She was his mother, apparently desirous to aid him in his troubles. She continued to supply his expenses after the assignment, and, furthermore, purchased his outfit in the army, so that there was no apparent intention to do him wrong. Indeed, it would seem probable that, in fact, he received the full value of his interest. Twelve years after the assignment, his interest in the estate is found to be about $3,700. If we deduct interest for that period, its value at the time of the assignment would be not more than half that amount. He seems to have received about two years’ board and clothing and the expenses of medical lectures, before the assignment, and other board and expenses afterward, besides the outfit of $300 to $400. Under all the circumstances, therefore, there is no reason to set aside the assignment on the ground of actual fraud or imposition.

The judgment should be reversed, so that after the payment of costs to all parties out of the fund, including costs of appeal, the balance should be paid to the defendant Rensselaer Waterman, administrator.

Present — Learned, P. J., Boardman and James, JJ.

Ordered accordingly.


text:
    EVERT EVERTSEN, Respondent, v. THE NATIONAL BANK OF NEWPORT, Appellant.

      Coupons — same as bank bills — right of bona fide purchaser of stolen coupons.

    Coupons separated from their'bonds are, in law, regarded as bank bills, and a bona fide purchaser, in the usual course of business, for full value, without notice, will be protected, although the coupons were overdue when sold, and were stolen by the party disposing of them to the purchaser.
    Appeal from a judgment entered upon the report of a referee in favor of plaintiff.
    The defendant purchased from its customers coupons of railroad bonds due April 1, 1871, and sent them by express for collection. They were stolen from the express company and sold to the plaintiff, a banker, in the ordinary course of his business, without notice of the theft, on April 3, 1871. The defendant stopped payment of the coupons. Upon suit being brought by plaintiff against the railroad company, the money was paid into court, and the defendant was substituted in place of the railroad company.

      A. M. Mills, for the appellant.
    The plaintiff is not a loona fide holder of negotiable commercial paper, and so entitled to be protected as against the true. owner of the coupons. It is only he who purchases innocently, in the course of trade for a valuable consideration, commercial paper not overdue, that is protected. (3 Kent’s Com., 78; Farrington v. Park Bank, 34 Barb., 645.) A recent case decided in the Supreme Court of the United States settles this question. (Vermilyea v. The Adams Ex. Co., 11 Alb. Law Jour., 189, March 20th, 1875.) These coupons are sui generis ; they are not money, nor promissory notes, nor independent instruments, but only the detached parts of an entire contract certifying that certain money is due by virtue of that contract. (Clarke v. City of Janesville, 1 Bissell, 98.)
    N. C. Moak, for the respondent.
    Bonds issued by a corporation under its seal are negotiable securities and pass by delivery. (Brainard v. N. Y., etc., 25 N. Y., 496; Lindsley v. Diefendorf,
      43 How. Pr., 357; Blake v. Board of Suprs., 61 Barb., 149; Moran v. Comrs., 2 Black, 722; Mercer County v. Hackett, 1 Wall., 83; Gilpeke v. Dubuque, id., 176; Clapp v. Cedar County, 5 Iowa, 15; Ring v. Johnson County, 6 id., 265 ; Matter of Imperial, etc., L. R. [11 Eq.], 478, 486, 495; 7 Am. Law Rev., 71; Huidekoper v. Buchanan County, 1 Cent. Law Jour., 177.) And a lis pendens will not prevent a bona fide purchaser from obtaining a good title thereto. (Lindsley v. Diefendorf, 43 How., 357; Durant v. Iowa City, 1 Woolw. C. C., 69, 83; Leitch v. Wills, 48 N. Y., 585.) The coupons issued with such bonds, after being detached, are treated and regarded as bank bills and currency, and may be sued though the owner be not the holder of the bond. (Spooner v. Holmes, 102 Mass., 507; 6 Alb. Law Jour., 235; Nat. Ex. Bank v. Hartford, etc., 8 R. I., 375 ; City of Memphis v. Brown, 5 Am. Law Times, 433, and numerous cases cited; 7 Am. Law Rev., 71; Sewell v. Brainard, 38 Vt., 364; Miller v. R. and W. R. R. Co. et al., 40 id., 399; Wohey v. Pole, 4 Barn. & Ald., 1; Matter of Imperial, etc., L. R. [11 Eq.], 478, 486, 495 ; Durant v. Iowa City, 1 Woolw. C. C., 69, 72; Murray v. Lardner, 2 Wall., 110 ; 1 Am. Lead. Cas. [5th ed.], 407, 410; Langston v. South Carolina R. R., 2 S. C. [N. S.], 248 ; Commonwealth v. Emigrant Industrial, etc., 98 Mass., 12; Haven v. The Grand Junction R. R. Co., 109 id., 88; City of Lexington v. Butler, 14 Wall., 82; McCoy v. Washington County, 3 Wall. Jr., 381.) One who takes a stolen bank bill in good faith obtains a valid title thereto. (Raphael v. The Governor, etc., 17 C. B. [84 Eng. C. L.], 161; Miller v. Race, 1 Burr., 462; 1 Smith’s Lead. Cas. [7th Am. ed.] ; Spooner v. Holmes, 102 Mass., 503 ; Worcester, etc., v. Dorchester, etc., 10 Cush., 488; Smith’s Man. Com. Law, 256 [1st Am. ed., 306] ; Anon., 1 Salk., 126; Snow v. Leatham, 2 C. & P. [12 Eng. C. L.], 314.) The rule of caweat emptor does not apply to the holder of a bank bill which has- been stolen, unless it be shown he did not take it in good faith and for valuable consideration; his knowledge of suspicious circumstances is immaterial, unless amounting to proof of want of good faith. (Worcester County Bank v. Dorchester, etc., 10 Cush., 488; Wyer v. Dorchester, etc., 11 id., 51.) The jury has found that the defendant took these coupons in good faith, without gross negligence, and as agent of his employer. He thus acquired a lawful possession of them which was no evidence of a conversion. (Spooner v. Holmes, 102 Mass., 507; Clapp v. Cedar County, 5 Iowa, 15; Ring v. Johnson County, 6 id., 265.) The purchaser is not bound to make a close or critical, inspection, though the bonds carry on their face circumstances leading to a.suspicion of want of title in the seller. (Birdsall v. Russell, 29 N. Y., 220; reversing 1 Robt., 538; Dutchess Co. Ins. Co. v. Hatchfield, 4 N. Y. S. C., 158; 1 Hun, 675 ; 47 How., 330; Commonwealth v. Emigrant Industrial, etc., 98 Mass., 12.) Negligence on the part of the purchaser is not sufficient to prevent his becoming a purchaser in good faith. There must be proof of fraud in fact or actual bad faith. (Seybel v. National, etc., 54 N. Y., 288; Welch v. Sage, 47 id., 143; Magee v. Badger, 34 id., 247; Belmont Bank v. Hoge, 35 id., 65; Head v. Smith, 44 How. Pr., 478; Leavitt v. Dabney, 7 Robt., 350, 353; Murray v. Lardner, 3 Wall., 111; Bank of Bengal v. McLeod, 7 Moore P. C., 35; Bank of Bengal v. Fagan, id., 61; Goodman v. Simonds, 20 How. [U. S.], 366; Spooner v. Holmes, 102 Mass., 503; Hamilton v. Vought, 34 N. J. Law, 187; Phelan v. Moss, 67 Penn. St., 59; 5 Am., 402; see, also, note 5 Am., 266, and cases there cited; 1 Smith’s Lead. Oas. [7th Am. ed.], 809, 820.) These coupons were payable at a particular time, the first of April. This being so the payees were entitled to three days’ grace. (Brown v. Newell, 8 N. Y., 190.) They were clearly promissory notes within our statute. (1 R. S., 768, §§1-5; 1 Edm. St., 721; Woodward v. Genet, 2 Hilt., 527, and numerous authorities there cited.) So “ due A B $325, payable on demand,” is a promissory note, though not negotiable. (Kimball v. Huntington, 10 Wend., 675; Luqueer v. Prosser, 1 Hill, 356; Bruce v. Westcott, 3 Barb., 376.) Should the coupons be held to be promissory notes or I. O. U.’s, the purchaser thereof, on the third day of grace, like the purchaser of such a note or I. O. U., would obtain a valid title as a bona fide purchaser. (Edw. on Prom. Notes [1st ed.], 525; Oathout v. Ballard, 41 Barb., 33.) A negotiable note is not dishonored in the hands of a bona fide holder for value, who takes it without notice of a defect in the consideration, within business hours, on the last day of grace. (Crosby v. Grant, 36 N. H., 273, 278.) The days of grace on negotiable notes constitute a part of the original contract; and the negotiability of the note is as unrestricted, during those days, as before their commencement. (Savings Bank v. Bates, 8 Conn., 505, 511, 512 ; Hogan v. Cuyler, 8 Cow., 203; Bank of Utica v. Wager, 2 Cow., 166; Osborne v. Moncure, 3 Wend., 170; McGraw v. Walker, 2 Hilt., 405; Gerkins v. Tompkins, 12 Barb., 280.)
   Boardman, J.:

If coupons separated from their bonds are in law to be considered as representatives of money, and subject to the same rules as bank bills and other negotiable instruments payable in money to bearer, this judgment is correct. It is no longer to be doubted that a bona fide purchaser of government or corporation bonds for the payment of money, negotiable by delivery, will be protected in his title, even against the true owner, if they were purchased in the ordinary course of business. (Seybel v. Nat. Currency Bank, 54 N. Y., 288, and cases cited.) I think it is about as well settled that ordinary coupons like those in suit aré negotiable promises for the payment of money, after they are detached from the bonds, and are in law treated and regarded as bank bills, currency, or the original bonds. (Murray v. Lardner, 2 Wall., 110; Spooner v. Holmes, 102 Mass., 503; Nat. Exch. Bank v. Hartford R. R. Co., 8 R. I., 375; Commonwealth v. Emigrant Industrial Savings Bank, 98 Mass., 12; Clark v. Iowa City, 20 Wall., 585.) Coupons are substantially a minute repetition of what is contained in more concise terms in the bond. They are attached to the bond to be separated therefrom at the convenience of the holder, and to be thereafter negotiated as money, or the representative of money, by simple delivery. Such is in fact the use made of them. They are purchased by banks and bankers as foreign bank notes or gold are purchased. No reason can be seen why a distinction is justifiable.

The referee has found that plaintiff was a purchaser in good faith, in the usual course of business, for full value, of these coupons, and that he had no notice that the seller was not the owner. The evidence abundantly sustains such findings. This, it seems to me, disposes of the whole case.

There was no error prejudicial to the defendant in the admission of the evidence of the manner in which these coupons are treated and considered in commercial circles. The fact proved stood admitted by the pleadings. But upon the face of the instruments, the law declared their character to be just what was testified to. In no way was it possible that such evidence, if illegal, could harm the defendant.

The judgment should be affirmed, with costs.

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed, with costs.


author: Boardman, J.: James, J.: Learned, P. J.:

text:
    TOWN OF PIERREPONT, Respondent, v. WILLIAM D. LOVELASS and others, Appellants.

      Capacity of plaintiff to sue — objection waived if not tahen by answer or dem/wrrw — Bridge maintained by town — damages to — Illegal act — responsibility for, cannot be avoided by contracting with otlm'parties to do it.

    An objection to the capacity of a plaintiff to maintain an action, if not taken by demurrer or answer, is waived.
    When a town acquires by legislative sanction, from a turnpike company, the right to maintain a bridge, such right becomes an easement, the property of the town, and the town may maintain an action to recover damages for injury caused to such bridge.
    A person cannot, by contracting with others to do an act of which the natural consequence is unlawful damage to another, shield himself from responsibility therefor.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover damages alleged to have been caused by the negligence of the defendants in running saw-logs down the Racket river, whereby the plaintiff’s bridge over said river was carried away.
    The referee, among other things, found that, on the 10th day of April 1810, by chapter 124 of the Session Laws of that year, the legislature of the State of New York incorporated certain persons by the name of “ The President and Directors of the St. Lawrence Turnpike Road Company.” The object of the corporation, as declared by said act, was the making of a turnpike from a point on the State road along the south side of Black river to the town of Malone, Franklin county. The act was amended by chapter 53 of the Laws of 1811, and again by chapter 158 of the Laws of 1812. The road constructed by said corporation was known as the “ Russell turnpike,” and crossed the Racket river, in the township now known as Pierrepont, near the western line of the town of Parishville. The town of Pierrepont was organized in 1818.
    The preamble of chapter 154 of the Laws of 1822, recites that the said corporation, “ under their corporate seal, do consent and agree to relinquish all that part of a turnpike road passing through the county of St. Lawrence, * * * and all that part of said turnpike road leading through the county of St. Lawrence is given up to the inhabitants of the several towns in the said county of St. Lawrence , for a public highway.” And the act provides “ that the commissioners of highways of the several towns in said county of-St. Lawrence, through which the said turnpike road passes,” shall lay the same out into highway districts “ and assess and apportion the labor and money on roads and bridges in the same manner as if said turnpike road had been legally laid out by commissioners of highways; ” and the second section of that act released the corporation “ from all laws relating to that section of said turnpike road within the county of St. Lawrence.”
    It did not appear by the evidence at what time a bridge was first erected across the Racket river at the point of its intersection with the turnpike road, but for more than forty years previous to the 5th day of May, 1867, a bridge had been maintained at such place by the town, connecting the parts of said highway separated by the river, and forming a part of said highway. During that period the town had constructed at this point four or five different bridges, one of which was built about 1838, one in 1849, one in 1853, and one in 1861. They were all built on the same location, the position of the abutments and piers not having been changed, except that in 1853 the eastern abutment was placed about half its width further down the stream. The latter bridge stood till the 5th day of May, 1867, when it was carried away and destroyed by logs of defendant’s being carried down the river and against the bridge, certain parties being employed under contract with defendant to drive such logs down the river.
    On the 10th of April, 1850, the legislature (chap. 264) passed an act declaring the Racket river “ a public highway for the purpose of floating logs and lumber from its mouth, in the town of Massena, to the foot of Racket lake, in the county of Hamilton.” The act provided no compensation to riparian owners.

      Parker & McIntyre, for the appellants.

      Sawyer & Russell, for the respondent.
   Boardman, J.:

Various reasons are urged why this judgment should be reversed. I will proceed to notice them in their order.

First'. It is alleged that the town was not the o.wner of the bridge destroyed, in such a legal sense as to enable it to maintain this action in the name of the “ Town of Pierrepont.”

The complaint says plaintiff was the owner of the bridge. The answer contains a general denial. In no other way is the right of plaintiff to maintain this action in its present form questioned. By reference to sections 144 and 148 of the Code, it would seem that any objection to the capacity of plaintiff to maintain this action was waived, inasmuch as the defendants neither demurred nor set up by answer any such defense. (Fulton Fire Ins. Co. v. Baldwin, 37 N. Y., 648.) The defendants, having waived any objections to the rights of the plaintiff to maintain this action, are concluded thereby, and if a' cause of action has been established by the evidence upon the trial, the plaintiff may recover. (Seaton v. Davis, 1 N. Y. S. C., 91; Wright v. Wright, 54 N. Y., 437.) Aside from this answer to the objection, the referee has found that the town was the owner of the bridge destroyed, and had capacity to maintain the action. Such conclusion is sustained, I think, by the evidence and the law. The town takes in its name, by virtue of any conveyance of lands within its limits, in any manner for the use or benefit of the inhabitants of such town. (1 R. S. [Edm. ed.], 310, § 3; 2 Wend., 109.) The turnpike company owned this highway and the right to maintain a bridge across the Racket, as a part of such highway, at the place where this bridge stood. By chapter 154 of the Laws of 1822, it is alleged that the turnpike company released this road to the inhabitants of the town, whereby the town became the owner, not in the ordinary manner, but by succession to the rights of the turnpike company. The fact that the highway was laid out in districts, and was managed by the commissioners of highways, does not affect the question of title in plaintiff. So far as the bridge in question is concerned, it was maintained by the whole town, from taxes levied upon all its inhabitants, as a matter of convenience. In this view it becomes unnecessary to determine whether the commissioners of highways or other town officers can, in ordinary cases, bring such an action as this, or whether it must be brought in the name of the town. The town acquired the right to maintain this bridge of the turnpike company, with the legislative sanction. The right thus acquired becomes an easement, and is the property of the town; and, in my judgment, the referee was correct in holding that the town could maintain the action.

Second. There is no evidence in the case from which we can say} as a conclusion of law, that the plaintiff was guilty of contributory negligence. The referee finds that there was none.. The overseer of highways has no care over or duties in respect to bridges. Notice to him was not notice to the town. (Bush v. Trustees of Geneva, 3 N. Y. S. C., 409; Bartlett v. Crozier, 17 Johns., 439, 447.)

Third. The'referee has found that the bridge was properly constructed. This is claimed to be error. If the defendants had no right to run logs down the river as a public highway, they are not in a situation to raise such a question. They would be wrongdoers, and, however defective plaintiff’s structure, the defendants would be liable for any injury to it. The plaintiff was only bound to protect its bridge against dangers legally threatening its existence. But the evidence sustains the findings of the referee. The bridge was well constructed, of proper dimensions, and of suitable materials, heighth and strength. It had proved sufficient for many years. It would be extravagant for the court, upon the evidence, to hold that the bridge was so negligently constructed as to deprive plaintiff of its recovery in this action.

Fourth. After the logs were placed by defendants upon the ice in the river, they employed certain persons to run them down the river when the spring freshets came, contracting to pay five cents per log for the service. Defendants claim these parties " (Snell and Douglass) thereby became contractors and alone liable for any damage done by the negligent or careless running of the logs. What Snell and Douglass agreed to do, was, to run such logs as defendants had or should put into the river. The defendants were to set the logs afloat. After they were afloat, Snell and Douglass were to run them ; that is, they and their men were to remain behind to pick up and keep in the channel stranded logs, and break up and forward any jams that might occur. Snell and Douglass were in no proper sense contractors. They were laborers for hire no less than if they had been paid by the day for the work. The payment by the piece secured greater fidelity and industry, but did not change the character of their employment. If, however, Snell and Douglass can be deemed contractors, I do not think the defendants would be relieved of responsibility for their negligence. The act which they were employed to do was unlawful, since, as we shall see, Racket river was not a public highway. (Congreve v. Smith, 18 N. Y., 79.) They were employed by defendants to do such act. The dangers arising therefrom were the natural consequences of the thing to be done. It was the duty of the defendants to provide against or prevent such consequences. By simply contracting with others to do the dangerous- act, the defendants do not relieve themselves from its consequences. (Creed v. Hartmann, 29 N. Y., 591; Storrs v. City of Utica, 17 id., 105.) Besides, these defendants put the logs in the river; this was the primary source of the mischief, without which the injury would not have happened. The natural action of the water might, and probably did, produce the injury, independently of the action of Snell and Douglass. The large mass of the 200,000 logs, doubtless was carried down by the force of the current alone. Thus, defendants’ conduct led directly, we might say, in view of the result, necessarily to the injury. For such direct act defendants are liable (Jones v. Chantry, 4 N. Y. S. C., 63), even though other acts set in motion by them concurred in the result. (Pollett v. Long, 56 N. Y., 200.)

Fifth. In the case of Morgan v. King (35 N. Y., 454), the court declared the law, making the Racket river a public highway, unconstitutional, and held upon the facts then before the court, that such river, above Potsdatn, was not in fact a public highway, and was not the subject of a public easement. The facts proved in that case, so far as we can judge from the report, were not essentially different from those here given in evidence. Applying the law of that case to the facts before us now, and it is evident that decision is conclusive. But the defendants insist that the town is not a riparian owner, and is not, therefore, in a situation to urge the invalidity of the law, declaring the river a public highway, for want of compensation to owners of the adjacent soil. Such claim is founded on the erroneous assumption that the town had no vested right to use the banks and bed of the river to maintain the bridge. For over forty years the town has maintained such a bridge at the same point. If necessary, a dedication might be presumed, since an easement may be so acquired. But we have already seen that the plaintiff acquired a vested right from the turnpike company in 1822. As a consequence the acts of 1850 and 1851 were void, so far as they affected the plaintiff in the absence of compensation, and the defendants took no rights by said acts as against the plaintiff’s prior rights. The findings of the referee in his exhaustive and elaborate report, and the law applicable to the case, make it quite conclusive that the Racket river, at and above the point where this bridge was, is not a public highway, much less a navigable 'stream.

It is unnecessary to consider in detail the exceptions taken upon the trial. Many of them are sufficiently answered in the previous discussion.

The offer to show that a square headed pier was of an improper form, was properly rejected, because it was an opinion upon a state of facts which any person, however inexperienced, was equally competent to form; it was not a question for experts; and for the further reason that plaintiff’s counsel had admitted, as appears by the case, that an “A ” shaped pier would shunt” off logs better than a square end pier. Whatever force could have come from the evidence, had therefore been conceded, and did not require proof.

The offer to show that there was no other existing outlet to market for lumber growing in the valley of the Racket, and that there were large quantities above this bridge, was properly rejected. It may be that “necessity knows no■ law,” still, necessity does not ordinarily exempt parties from the consequences of their acts. It is not necessary that parties should buy logs or land where there is no means of reaching or removing the timber except by trespassing upon the rights of others. So far as such evidence tended to justify the making of the Backet a public highway, it is answered by the other facts in the case, showing that it is not and cannot be made such under our laws.

The trial of this case has apparently been conducted with great care, labor and skill; the report of the referee bears evidence of his industry and faithfulness in the discharge of his duties; and the result to my mind is just and proper. After a careful consideration of the learned arguments of counsel upon this appeal, I, can see no good reason why a new trial should be had. The judgment should be affirmed, with costs.

James, J.:

I concur with Justice Boardman in the result, and in all of his opinion except that portion which holds that the Backet river is not a highway; from that I dissent. I am of the opinion that the reverse is the law, notwithstanding the case of Morgan v. King (35 N. Y., 454).

Learned, P. J.:

I agree with the result of my brother Boardman’s opinion; but I do not think it necessary to pass on the question, whether or not the Backet river is a public highway, so far as concerns the right to float logs.

It is found by the referee that the bridge was of reasonable form and sufficient strength, with reference' to any reasonable use of the channel in' floating logs and lumber, and that the destruction of the bridge was caused by the negligence of the parties in charge of the drive; that no men were sent ahead to prevent jams. The defendants put the logs in the river, and, by not taking precautions against jams, caused the injury. They were liable for their negligent acts.

Judgment affirmed, with costs.