author: Yan Brunt, P. J.

text:
    William R. Laidlaw, Resp’t, v. Russell Sage, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    1. Appeal—Charge.
    It is error, on the second trial of cause, for the trial court to read to the jury a part of the opinion of the appellate court, where it states a different proposition from that laid down as the law by the general term.
    2, Assault and battery—Intentional act.
    A person who intentionally, and not from sudden impulse, places another between himself and impending danger, is liable for the injury to him.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Edward G. James, for app’lt; N'oah Davis, for resp’t.
   Yan Brunt, P. J.

None of the objections to the judgment and order appealed from which appear upon the brief of the counsel for the appellant need any further consideration than such points received upon the previous appeal in this case; but an examination of the record discloses questions which have been raised during the progress of the trial which resulted in the judgment and order appealed from, and which, although not noticed upon this appeal by the counsel for the appellant, or called to the attention of the court, would undoubtedly be discovered by him in ample time to present the same to the court of appeals in case they should not be considered by this court upon this appeal. An examination of the record shows that the learned judge who presided at the trial seems to have fallen into fatal error in some of the propositions charged, and in the refusal to charge others which were requested ; the former error arising, at least to some extent, because of the reading of portions ‘ of the opinion of the general term to the jury, without having regard to that which in the opinion had preceded the extract read. Upon the previous appeal we had endeavored to define the theory upon which a recovery for the plaintiff might be sustained ; and we showed that, from the evidence which was then in the record, the jury might find that the defendant, when in conversation with Norcross, after receiving the demand for money and the threat of action in consequence of its refusal,*had refrained from giving an answer to such demand, and had, with the intention of protecting himself, gone to the table at which the plaintiff was standing, and, with the deliberately formed purpose of using the plaintiff as a screen from the anticipated danger, of all of which the plaintiff was entirely ignoraut, had placed the plaintiff between himself and Norcross, and, when he had thus shielded himself, that he gave the answer to Norcross which precipitated the catastrophe ; and we held that, if the jury found such to be the fact, a wrong had been done to the plaintiff, and that, the plaintiff having been injured, it was incumbent on the defendant to show that no part of such injury had nesulted from the wrong which he had committed towards him. We endeavored to show that the jury might find that the act upon the part of the defendant was not an instinctive act of self-preservation, he knowing himself to be in deadly peril, but rather the reasoning calculation of a deliberate man, who takes in the whole situation, and then, with reason and forethought, puts a human buffer between himself and anticipated injury.

It is undoubtedly true that the learned court, in the first part of its charge, substantially followed the position taken by the general term, and enunciated correctly the principles which were to govern the jury in their consideration of the evidence. But the court subsequently charged as follows: “That brings the case down to this: That, by the decision of the general term of this court, the burden of proof has been cast upon the defendant to show that the injuries of Laidlaw would have been as serious as they were if he had not been interfered with; and, in order that there may be no misunderstanding with reference to that, I will read another extract from the opinion of the general term : ‘We fail to conceive why the burden of proof is not upon the defendant, rather than upon the plaintiff, to show that, without defendant’s acts, the plaintiff would have been equally injured; and it seems to us that that is where the fallacy of the defendant’s argument lies,’ ”—thus substantially charging that the general term had. held that the plaintiff was entitled to a recovery unless the defendant should show that the plaintiff’s injuries would have been as serious as they were if he had not been interfered with. The error into which the learned court fell was in inadvertently taking the extract in question from the opinion, without considering that which had gone before. The opinion read: “ The whole groundwork of the respondent’s argument is that the motion to dismiss was properly granted, because it was incumbent upon the plaintiff to establish that, without Sage’s act, he would not have been injured ; thus completely turning around the question as to the burden of proof. If ,Sage had been acting innocently, if it could not be found from the evidence that he intentionally placed this man between himself and the expected danger, this rule might apply; but where his very act of placing the plaintiff in the position mentioned may have been a wrong towards the plaintiff, and may have been done by defendant with the intent of shielding himself from injury, if so done, we fail to conceive,” etc., as read in the charge,—clearly a different proposition from that read to the j ury as the law laid down by the general term. In view of this charge the defendant’s counsel, at the close of the case, requested the court to charge that if the jury find from the evidence that the defendant did take the plaintiff and use him as a shield, but that this action was involuntary, or such as would instinctively result from a sudden and irresistible impulse in the presence of a terrible danger, he is not liable to the plaintiff for the consequences of it.” The court: “I will not charge it exactly in those words. I will charge it that the essence of the liability must be a voluntary act.” The proposition requested to be charged the defendant was entitled to have submitted to the jury; and, in view of the previous statement to which attention has been called in reference to this matter, it may have resulted in serious prejudice to the defendant. The essence of the liability is not entirely whether the act of Sage was voluntary or not. An instinctive act may be voluntary. An aot done upon the spur of the moment, in anticipation of impending evil, may be voluntary. But such acts are not the result of an intent based upon reasoning; and upon the previous appeal, therefore, we held that, according to the testimony of - the plaintiff, the jury might find that the act of Sage in placing the plaintiff between himself and anticipated danger was not an instinctive act, but rather proceeded ‘from calculation and design. We considered it manifest-that the jury might have come to this conclusion, because the defendant expressly refrained from giving the answer which he had reason to believe would precipitate the catastrophe until he had placed himself, as he supposed, in a place of comparative safety, behind the plaintiff. It would seem, therefore, that in refusing this request, as already stated, material prej udice was suffered by the defendant. There are other exceptions taken to the charge, which also present matters for serious consideration; but, in view of the conelusion at which we have arrived in respect to the request to which attention has been called, it is not necessary to consider the same. The judgment and order appealed from must be reversed, and a new trial ordered, with cost to the appellant to abide the event. All concur.


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    In the Matter of Cassius A. Hamilton et al.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    Election of officers—Registry list.
    Upon an application under § 37, chap. 680 of 1892, to have name of voter stricken from the registry list, the judge can only compel the hoard of inspectors to perform its ministerial duty, and cannot pass upon the right of such person to he registered and to vote.
    Appeal from orders compelling the board of inspectors to strike out certain names from registry of voters.

      Everett Caldwell, for app’lts ; Henry A. Peclcham,, for resp’ts.
   Mayham, P. J.

On the 4th day of November, 1892, a justice of this court made four separate orders, each separately relating to one of the four persons whose names were ordered to be stricken from the registry of voters, which orders were, with the exception of the name stricken from the registry, in the following form:

“ In the Supreme Court.

“In the Matter of the Registration of Cassius A. Hamilton in the First Election District in the Town of Canton, as a voter.

“Application having been made to me for an order directing the name of Cassius A. Hamilton to be stricken from the list or register of voters of the first election district of the town of Canton, in the county of St. Lawrence, for the general election to be held November 8, 1892 :. Upon reading the duly verified application of Nelson L. Robinson, and the affidavits of Nelson L. Robinson and Isaac M. Atwood, the certificate of the board of inspectors of said election district as to the proceedings in said matter before it, said proceedings and annual catalogue of St. Lawrence University for 1891-92 in support thereof, and that affidavits of Cassius A. Hamilton, George R. Hardie, Charles Y. Fullington, Fred Birney, Van Ornum, Frank N. Cleveland, James H. Christie, and after hearing Henry A. Peckham, Esq., for Ledyard P. Hale, Esq., opposing such application, I do hereby order and direct Frank N. Cleveland and Benjamin F. Cleflin and Sylvester N. Judd, constituting the board of inspectors for the registry of voters in and for said election district for said election, to strike from such list or register of voters in and for said election district for said election the name of Cassius A. Hamilton.”

From such orders each of the persons whose names were stricken from the registration of voters appeals, and as all of the appeals involve the same question they have been argued together. The learned judge who granted the orders from which the appeals are taken wrote no opinion ; and we have no means, further than we may gather from the statute under which the application to him was made, of determining what his construction of § 37 of chapter 680 of the Laws of 1892 was. The manifest effect, however, of the orders made by him, was to establish the doctrine that a judge, upon a summary application under the provisions of that section, may determine the right of the citizen to register and vote, upon the facts and law, without regard to the question of conformance on his part, or on the part of the board of registration, with the formal requirement of the statute regulating the registration of voters. As the board of registration act only ministerially in receiving and registering the name of the voter, and must therefore register all who conform in their application for registration to the formal requirements of law, People ex rel. Stapleton v. Bell, 119 N. Y. 175; 28 St. Rep. 960, and must refuse registration to any who may fail in such conformation, it is only when such board fail in the discharge of such ministerial duty that the judge, under the provisions of the act of 1892, supra, •can compel by order the performance of such ministerial duty. The orders of the judge from which these appeals were taken went much further in their effects, and assumed to pass upon the legal right of these appellants to be registered and to vote; and, while it may have correctly determined that question, its effect •was too far reaching in its consequences to be determined in so summary a manner, and we do not think that that question was properly before the judge for determination. In People v. Bell, supra, it was held that a board of inspectors of election has no discretionary power to reject the vote of a person who, upon the application of the statutory test, has shown himself to be a qualified voter, and that the lawfulness of a vote cannot be determined until it has been received, and the elector’s right cannot be annulled without a trial. Tested by this rule, we think the orders of the judge directing the inspectors to strike these'names from the list of registry of voters were erroneous, and must be reversed.

Orders reversed, with ten dollars costs and printing disbursements. Putnam, J., concurs in the result.


text:
    Isaac M. Van Patten, Resp’t, v. Schenectady Street Railway Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    1. Evidence—Force.
    Positive testimony that the gong of a street car was sounded, as it approached a crossing, prevails over the testimony of a person that he did not hear it.
    2. Railroad—Street—Duty.
    It is the duty of a street railway company to use all the care and caution that a proper regard for the safety of the traveler on the highway will require, consistent with the proper enjoyment of its franchise and the right to operate successfully its road.
    •3. Negligence—Contributory.
    Plaintiff was held to have failed to prove freedom from contributory negligence.

      Appeal from a judgment, entered on' a verdict in favor of plaintiff.

      De Remer & Angle, for app’lt; John D. Miller, for resp’t.
   Mayham, P. J.

The plaintiff, while crossing the railroad track of the defendant’s railroad, with his horse and wagon, was hit by a motor car, and sustained injury to himself, his horse and wagon, harness and servant, who was riding with him, for which he brought this action. The action was prosecuted upon the theory that the injury was produced by the negligence of the defendant’s servants in running the motor. The defendant denies any negligence oh its part, and alleges the contributory negligence of the plaintiff. The track of the defendant’s railroad runs up Kruise avenue until the intersection of that street with Campbell avenue, when the track curves into and extends up the latter avenue. On Kruise avenue there are two wagon tracks, one on either side of the railroad track. On the evening of the accident, the plaintiff was at about 8:30 o’clock driving up Kruise avenue, on the right hand side of the railroad; and at the curve of the railroad track, at the junction of these two avenues, the plaintiff, while attempting to cross the railroad track, was struck by a motor, and injured. Two grounds of negligence are charged by the plaintiff against the defendant: (1) The rate of speed at which the motor was running at the time of the collision; (2) the failure to make the proper warnings and signals at the crossing at which the plaintiff was hit.

The evidence does not disclose that the motor in question was running at an unusual, excessive or dangerous rate of speed; upon the whole evidence, not to exceed four or five miles an hour. Nor. does a fair "construction of the evidence justify the finding that the defendant was guilty of negligence in not giving suitable warning of the approaching of the motor to the junction of Kruise and Campbell avenues. There seems to be no statutory requirement that the defendant shall give a warning or maintain a flagman at that point. At the same time, it was doubtless the duty of the defendant to use all the care and caution that a proper regard for the safety of the traveler on the public highway would require, consistent with the proper enjoyment by the defendant of its franchise and the right to successfully operate its road. It is true that the plaintiff testifies that he heard no bell sounded on the approaching motor; but the defendant proves by several witnesses that a gong was sounded on the car from above the junction on Campbell avenue until the time of the collision. This is established by the positive, affirmative evidence, and, if untrue, the witnesses who testified to it must have committed deliberate perjury ; while the evidence of the plaintiff that he heard no bell is of a negative character, and admits of the construction that the bell might have been sounded, and he not have heard it, without charging him with intentional or willful falsehood. Under such circumstances, we do not think the evidence justified the finding by the jury that the defendant was guilty of negligence in running its motor, for which it can be held liable. But if that was such a disputed question of fact that this court should not, on appeal, interfere with the verdict of the jury, still we think that the plaintiff failed to prove freedom from contributory negligence. He was familiar with this crossing. The railroad track was visible for a sufficient distance up Campbell avenue from the crossing to have enabled the plaintiff to have seen the approaching motor car before the collision, if he had looked and listened. It is true that, at the immediate point of crossing, there was a building whichj hid the railroad track from, one passing up Kruise avenue; but that fact called upon the plaintiff for greater caution, and seemed to make it his duty, to have looked up Campbell avenue, when he was in a position to have done so, for a distance of 200 feet before reaching the White House; and, if he had done so, he must have seen the approaching motor in time to have stopped his horse, which was on a slow walk, and could easily have been controlled, and thus the accident averted.

The principles which govern this class of cases are too familiar to require citation of authorities. The plaintiff must prove negligence on the part of the defendant, and freedom from contributory negligence on his own part. Upon the evidence in this casé, we think he failed in both particulars, and that the learned judge erred in denying the motion of the defendant to dismiss the complaint, and also the motion to set aside the verdict on defendant’s motion.

The judgment must be reversed, and a new trial granted; cost to abide the event. All concur.


text:
    The People ex rel. Ferdinand W. Chase, App’lt, v. Edward Wemple, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    1. Taxes—Salk—Redemption.
    The right to redeem is absolute on complying with the statutory requirements.
    2. Evidence—Taxes.
    The application for redemption and the affidavits in support thereof are admissible in evidence in a proceeding to redeem
    3. Appeal—Findings.
    The findings of fact by comptroller, in proceeding to redeem, are conclusive unless clearly against the weight of evidence.
    Certiorari to review action of the comptroller in allowing a redemption of land from a sale thereof for taxes.

      Weeds, Smith & Conway (T. F. Conway, of counsel), for relator; Beckwith, Botsford & Beckwith ((7. Id. Beckwith, of counsel), for resp’t.
   Mayham, P. J.

On the 28th of March, 1893, a writ of certiorari was sued out of the supreme court, on the petition of Ferdinand W.'Chase, directed to Frank Campbell, comptroller,- and Edward Wemple, late comptroller, of the state of New York. To this writ separate returns were made by the comptroller and late comptroller, and such returns, together with the petition, disclosed that in the years 1871, 1877, and 1881 the tract of land in controversy was sold for unpaid taxes,, and at each sale was bid in by the state, and a- conveyance therefor was duly executed by the comptroller to the state; that about the 80th of March, 1882, the state of New York, by letters patent, granted and conveyed all of its interest in such'lands, and soon thereafter assigned to the relator the certificate of sale for 1881, and the relator thereupon entered into possession of the land so conveyed to him. About the 15th day of June, 1889, Charlotte G. Hall caused an application in her behalf to be made to Edward Wemple, then comptroller of the state, to redeem the lot of land in question from such tax sales, on the ground that the same, or some portion thereof was actually occupied at the expiration of the time to redeem from such sale, and that notice had not been served on such occupant: and the relator appeared before the comptroller, by his counsel, in opposition to such motion to redeem. Pending the application for redemption, and before the same was determined, Charlotte Hall commenced an action of ejectment against the relator to recover the possession of this land.

It is insisted on the part of the relator, and there is some proof in support of that contention, that pending that action, and before the determination of the motion for the redemption of this land was made, there was an understanding or agreement with the comptroller or his deputy that, as the ejectment suit would determine effectually the right of Hall to redeem, no action would be taken on this application to redeem until the determination of that action ; and the petitioner alleges in his petition that, relying upon such understanding, he submitted no affidavits to the comptroller in opposition to the motion to redeem. The case discloses that that action was tried December, 1890, and resulted in the determination by the trial court against the plaintiff, and in favor of the relator herein, and judgment was entered accordingly on the 18th day of September, 1891, and that no determination of the motion to redeem these lands was made by Comptroller Wemple during his term of office, but that his successor, Comptroller Campbell, on the 28th day of November, 1892, granted such application to redeem, on the ground that lot No. 181 was actually occupied on September 23,1873, October 18, 1879, and November 23,1883. After procuring the allowance of such redemption, Charlotte G. Hall moved for a new trial of the action of ejectment, under § 1525 of the Code of Civil Procedure, which motion was granted February 23, 1893. The return of Comptroller Wemple discloses that, after the judgment in favor of the relator in the ejectment case, one of relator’s attorneys informed the deputy comptroller •of the judgment in favor of the relator in that action, and that the deputy informed such attorney that such judgment'was practically conclusive against the rights of the applicant to redeem. The return of Comptroller Campbell shows that he entered upon the duties of his office January 1,1892 ; that he found pending in his office the application of Mourol Hall, dated June 15,1889, to redeem lot No. 181 from the tax sales of 1871, 1877, and 1881, upon the ground that the land was occupied at the expiration of the two years allowed by law for redemption from each of said sales, and that notice had not been served upon the occupant, and that in support of such application there were on file with the same four affidavits to establish the facts upon which the application was grounded, and no affidavits were on file or submitted by the relator, Chase, in opposition to such motion, and that no proof was submitted by Hall that notice had been given to Chase of the application to the comptroller to redeem, nor did the comptroller give him any such notice. The return also shows that Comptroller Campbell, on his ow n motion, and without notice from him to either party, on the 28th of November, 1892, made an order allowing the redemption as aslced for by the application. Upon these facts the relator asks upon this certiorari, that the order of the comptroller allowing a redemption of these lands be set aside.

Charlotte G. Hall, who made the application in this case to redeem, through her father, Mourol Hall, as her attorney, claims to be owner of this lot through a deed from the original patentee thereof. The case does not disclose that she had any notice of the talks or understanding between Comptroller Wemple or his deputy as to the effect of the ejectment action upon these proceedings, nor was Comptroller Campbell informed of the same. The right of Miss Hall to redeem, upon these tax sales, through an application to the comptroller, is purely a statutory right, and the powers and duties of the comptroller, upon an application to redeetn, are all regulated by statute; and, while it is true that the party claiming rights under such a statutory proceeding must show that the requirements of the statute have been strictly complied with, it is equally true that when, by a strict compliance with the requirements of the statute, rights have been established and fixed, the courts, when applied to for that purpose, must protect the party in the enjoyment of such rights. Nor do we think that in a strict statutory proceeding, of this character, the court can look beyond the plain requirements of the statute for the purpose of subserving some supposed equities that'may seem to exist in favor of one or the other of the parties, not embraced within the letter or spirit of the statute. The comptroller having jurisdiction of the parties and subject matter of these proceedings to redeem expressly conferred on him by statute, we are not permitted to look beyond the proceedings taken by and before him, in determining the validity of his acts. Section 74 of chapter 427 of the Laws of 1855, as amended by § 1 of chapter 556 of the Laws of 1890, provides as follows: “In all cases of tax sales heretofore made by the comptroller, where the land sold was in the actual occupancy of any person at the expiration of two years * * * shall become absolute,” etc. This amended section is a qualification of the provision of the act of 1855, under which a redemption of tax sale was allowed, and a redemption can now be made only in the manner indicated by § 74 of that act, as amended by the Laws of. 1890. The limitation of time for making an application seems to be made to depend upon the purchaser under a tax sale serving the notice specified in § 68 of chapter 427 of the Laws of 1855, and it requires the service of that notice to set that statute of limitation running; ánd a party having a right to redeem may do so at any time within six years allowed for the redemption thereof, and if the purchaser, or person claiming under him, shall have failed to serve notice of such sale on the occupant or occupants thereof, and to file evidence of such service in the comptroller’s office, as provided by § 63 of this act, and the occupant or any other person shall fail' to file in the comptroller’s office, within one year after this act shall take effect, a written notice of such occupancy, together with an application for the redemption of such lands, and to' furnish the comptroller satisfactory evidence of the occupancy, required, and make such redemption, within two years after this act shall take effect, then the tax sale, and any conveyance made after filing in the comptroller’s office of the evidence of the service of the notice that the sale and conveyance will become absolute, and the occupant and all others interested in the land be forever barred, unless the same is redeemed according to the provisions of that section. In this case it does not appear to be claimed that any such notice was actually given, or any'proof of the service of such notice was filed in the office of the comptroller. So far as appears, the only thing before Comptroller Campbell, at the time of ordering this redemption, was the timely application for the same, the undisputed evidence of occupancy within the time which authorized the granting of an application to redeerii, and the proofs that no notice of the sale and conveyance had been given by the purchaser to the party in possession, and no proof of the same filed in the comptroller’s office as required by § 68 of chaper 427 of the Laws of 1855. Under such circumstances it became the duty of the comptroller to act, and it would seem that, by chapter 463 of the Laws of 1892, he was required to take action on the application on or before the 1st day of December, 1892.

But it is urged by the relator that the evidence of occupancy at the time claimed in the motion to redeem was too slight, and that the comptroller erred in allowing a redemption on the same. The proof was made in the application, and was supported by the affidavits of four apparently disinterested affiants. Evidence in that form was admissible, and it was the duty of the comptroller to pass upon its sufficiency. It was a question of fact, for him to find upon the proofs, whether or not this lot was occupied, and, upon evidence satisfactory to him, he found that fact in favor of the applicant; and this court in reviewing his action and dstermination, ought not, unless his determination is either entirely unsupported by evidence, or against the clear weight of evidence to reverse his decision upon the facts. People ex rel. Wallkill V. R. R. Co. v. Keator, 17 Abb. N. C. 369; People v. Zoll, 97 N. Y. 203. The relator had notice of the original application to redeem, and an opportunity to controvert before the comptroller the truth of the fact of occupancy of these lands, or of any other fact material to the question of redemption; but without any fault of the applicant, or her knowledge, or that of Comptroller Campbell, he claims to havé relied upon some suggestion by the deputy comptroller that a pending action of ejectment would, when tried, determine the rights of the parties. Under such circumstances it can hardly be said that the comptroller, by allowing this redemption, was, by an ex parte action or proceeding, depriving the citizen of his property, within the case of Ostrander v. Darling, 53 Hun, 190; 25 St. Rep. 72. It is true that loss and inconvenience may result to a purchaser against whom a redemption is allowed, and yet until all chance of redemption has been removed, by the giving of the notice required by statute, and the lapse of time that bars redemption, the purchaser’s title must be regarded as inchoate, to such an extent that a prudent man would not take the hazard of making valuable and expensive improvements until his title had become perfect; and, on the other hand, the penalties and requirements on redeeming are so severe, under the provisions of § 68 of chapter 427 of the Laws of 1855, that a party incurring the same should not be deprived of the fruits of his redemption, except it be shown that his redemption falls short of the legal requirements to effect a redemption. In this case we fail to see any defect in the acts of the comptroller in allowing this redemption which calls for its reversal. The order of the comptroller must be affirmed and the writ quashed, with $50 costs and disbursements against the relator.


text:
    The People ex rel. Ferdinand Chase, App’lt, v. Frank Campbell, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    Weeds, Smith S Conway (T. F. Conway, of counsel), for app’lt; Beelcwith, Botsford & Beckwith (f?. H. Beckwith, of counsel), for resp’t.
   Mayham, P. J.

In the case of People ex rel. Chase v. Wemple, 62 St. Rep. 380; 30 N. Y. Supp. 503, relating to the order of the comptroller allowing a redemption of this tax on the land in question, we had occasion to examine the validity of the action of the comptroller in allowing such redemption, and reached a conclusion sustaining the order of the comptroller. So long as that decision remains unreversed, we see no ground upon which to reverse the decision of the comptroller refusing to vacate his order allowing a redemption in this case. If his original order allowing a redemption was correct, it follows that his refusal to vacate it was not error. Certiorari quashed, with $50 costs and disbursements.


author: Parker, J.

text:
    National Mahaiwe Bank, Resp’t, v. Elizabeth T. Hand, as Executrix, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Dama&es—Landlord and tenant.
    The measure of damages for a breach of the covenant to keep the demised premises insured for the benefit of the lessor is the cost of effecting the insurance.

      Appeal from a judgment, entered on a verdict in favor of . plaintiff.

      George 0. Holt, for app’lt; J. F. Harrison, for resp’t.
   Parker, J.

Defendant’s testator entered into an agreement with plaintiff on the 16th day of March, 1889, by which certain premises were leased to him for a period of years, with the right to purchase upon compliance with the conditions named. In addition to the stipulated sum to be paid as rent, the lessee further covenanted “ to keep in force insurance on said property, for the benefit of said bank, in the sum of ten thousand dollars, in such companies as said bank shall approve, and also to pay all taxes assessed on said premises and property for the year 1889, and thereafter in the event of his purchasing said property as aforesaid.” In August following, the mill buildings were destroyed by fire, and the plaintiff, ascertaining that the lessee had not taken out a policy of fire insurance in its name or for its benefit, •commenced this action. Upon the trial, and immediately after plaintiff’s counsel had opened the case to the jury, “defendant’s counsel admitted that the plaintiff was a national bank, organized under the laws of the United States, and doing business at Great Barrington, in the state of Massachusetts; that on or about March 16, 1889, the plaintiff and Allen F. Hand entered into an agreement, a copy of which is annexed to the-complaint; that the said Allen F. Hand entered into and took possession of the lands and property described' in the said contract, being certain premises known as the Berkshire Paper mill property in the village of Mill River, Berkshire county, Mass.; that the •said paper mill was destroyed by fire on or about August 14, 1889; that there was no fire insurance existing upon the mill at the time the mill was burned; and that, for the purpose of this case, the mill property was worth ten thousand dollars ($10,000), and that interest on $10,000 from August 14, 1889, to the date of the trial was $2,833.33, and the plaintiff’s total claim $12,833.33. Plaintiff thereupon rested.” Defendant’s counsel then put in evidence a policy of insurance upon the premises in question in the sum of $10,000, covering the explosion of steam boilers, which he contended was a liberal compliance with his client’s covenant to keep the property insured in the sum of $10,000. He rested his case at this point, and moved for a dismissal of the complaint on the grounds,'—First, that the policy introduced was incompliance with the terms of the covenant for insurance ; and, second, that, Hand having failed to insure against • fire, it was the duty of plaintiff to effect insurance and charge Hand with its cost, and that a measure of damages was the cost of such insurance. Under the pleadings and the evidence as it then stood, we think defendant’s counsel was right in his contention that the cost of effecting the insurance constituted the proper measure of damages. The question has not often been brought to the attention of the courts. Indeed, the investigations of counsel, and such as we have been able to make, have produced one case, only, in which the question as to the measure of damages has been discussed. That case differs somewhat from the one under consideration, but the reasoning employed is entirely applicable. In Dood v. Jones, 137 Mass. 322, a contract for the sale of a house and lot contained a promise that the grantor would assign a policy of insurance then in full force and effect. The property was conveyed to the grantee, but the policy was not assigned, although its assignment was requested. The purchaser did not procure any insurance, and the house was injured by fire. The purchaser then attempted to recover from his grantor such a sum as he would have been entitled to recover upon the policy of insurance had it been assigned, alleging that, by reason of' the grantor’s failure to perform his contract in such respects, the policy became void. The trial court held that plaintiff was only entitled to recover for the cost of procuring insurance for the unexpired term of the polic}^. The court, in its opinion, said: “The agreement was not a contract of insurance, but of sale; an^ the measure of damages for the breach of it was the value of the thing sold. A sum that would procure a similar policy, and thus place the plaintiff in the position she would have been in had there been no breach of the contract, would indemnify her, and she cannot elect to go without insurance, and hold the defendant as insurer. Damages resulting from the burning of the building are not the direct and natural consequence of the breach of the defendant’s contract, and could not have been contemplated by the parties as included in it. The natural consequence of the failure of the defendant to perform his contract would be that the plaintiff'would procure another policy of insurance, and she cannot charge the defendant with the consequences of her neglect to do that.”

The argument in that case is applicable to this one. Hand’s contract was not one of insurance, but of leasing. The agreement does not contemplate that he should become the insurer of the property,—that the lessor should look to him in case of loss by fire to the extent of $10,000,—but rather that for the use of the premises he should pay the taxes, whatever sum should be assessed against the property, and the insurance premiums necessary to keep in force a $10,000 policy no matter what the expense of it should be, and in addition, should pay a fixed sum to the lessor, which thus became to it net rent. Under this contract of leasing the lessor had the right to demand of the lessee that he at once comply with his agreement respecting insurance, and, in case of his neglect or refusal to perform, it was the right of the lessor to procure insurance, and charge the lessee with the cost of it. This is a matter of every day practice, as between mortgagor and mortgagee, under stipulations similar in character. If this position be well taken, it follows that defendant was entitled to a dismissal of the complaint, for, when he had rested, there was no proof whatever tending to show what would have been the cost of obtaining the stipulated insurance. The plaintiff 'thereupon moved the court “to open the case in order to show that the president of the bank was informed by Mr. Hand that a fire policy had been obtained, and was in force, and that the bank relied upon Mr. Hand’s statement that he liad taken out a fire policy, and that the bank did not know differently until'after the mill burned.” ' The object which the plaintiff had in view is readily apparent. Under the evidence as it then stood,—and it was as broad as the complaint,—argument had been made to the trial court that plaintiff was not. entitled to recover any other sum as damages than the cost of insurance. Impressed, doubtless, with the force of the. argument, he sought to introduce a new element,—one not pleaded; and, without asking an amendment of the complaint, the court was implored to open the case, and admit testimony not embraced within the issues. The complaint alleged the making of the contract, its breach by the defendant, and injury to the plaintiff, and demanded damages to the full’extent of the injury. But its request was to be permitted to prove something in addition to that which it had alleged,—facts which it apparently regarded as essential to support a recovery in the amount demanded in the complaint. It asked, in effect, permission to prove that it had. not taken out insurance, and charged defendant with the cost, as it might have done, because defendant’s testator deceived it; that he misled the plaintiff by telling its president that lie had taken out insurance; that plaintiff relied fully upon such insurance, and therefore, believing that such a policy was in full force, omitted to take the steps which it otherwise would have taken for its protection. Such an issue the defendant had not been invited by the pleadings to meet upon the trial, and he promptly made objection to the evidence, on the ground that it was not within the pleadings. Objection was also taken when the president.of the .plaintiff was first called as a witness, and thereafter during his testimony ; but the objections were overruled, and the exceptions taken thereto present error which calls for a reversal of the judgment. The judgment should be reversed, and a new trial granted, with costs to the appellant, to abide the event. All concur.


text:
    Gilbert Newton, Resp’t, v. Central Vermont Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

      1. Negligence—Question eor jury.
    It is a question of fact for the jury whether failure to have in place a chain across the end of the rear platform of a passenger car, is negligence. ’ .' "
    2. Same.
    Whether the sudden jerking of a car in a mixed train, while it is slowing up at a station, is the result of negligence, is also a question for the jury.
    3. Same.
    So, whether the intoxication of a passenger, who is injured by falling from a car platform, contributed to his injury, is a question for the jury.
    4. Same—Contributory
    It is not negligence for a passenger to leave his seat in a car, after the conductor has called the name of the station.

      “ Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Louis Ilasbrouch, for app’lt; Badger & Lde, for resp’t.
   Mayham, P. J.

The plaintiff was a passenger on one of the defendant’s passenger cars, for which he held a passenger ticket from Marion to Bombay, two stations on defendant’s railroad. As the train approached Bombay the conductor announced the name of the station, and the train slowed up, and the plaintiff, with other passengers, started for the door of the car to alight. On reaching the door, the evidence tends to prove that the coach was suddenly jerked, and the plaintiff precipitated across the platform between the ends of the guard rails, between the ends of which the chain which is usually extended from the end of one railing or guard to the other was at that time unhooked, and plaintiff fell between the passenger car on which he was riding, and a freight car which was hauled in that train, and was injured.

Two questions are presented in this, as in most appeals of this character: First. Did the plaintiff, on the trial, prove any negligent act or omission on the part of the defendant for which the jury were justified in finding it liable to the plaintiff for the injury complained of? Second. Did the plaintiff, by the proof, establish his freedom from contributory negligence ? The evidence relied upon by the plaintiff to establish negligence of the defendant was the proof that no chain or bar was placed between the ends of the guard or railing on the outer edge of the platform across the passage-way from one car to another, to prevent the plaintiff and other passengers from falling between the cars in case of any sudden, and unexpected movement of this passenger coach while passengers were on the platform for the purpose of alighting from the train. It is a well known fact that passenger coaches, where no other means of protection are provided to prevent passengers from falling between cars through the space between the railings or guards at the-outer edge of the platform, have chains, which may be extended from one rail to the other, thus forming barriers, as a prevention against such accidents. We think that the failure of the defendant to have in place such barriers at the time of this accident was a fact from which the jury might impute negligence to the defendant. Fiero v. N. Y. C. & H. R. Railroad Co., 71 Hun, 213; 54 St. Rep. 373. It was, we think, a question of fact for the jury, under the circumstances of this case, and their determination upon that question should not be disturbed on this appeal!

It is also insisted that there was a sudden jerk or movement of the cars after the conductor had invited the passengers to alight by calling out the name of the station, which precipitated this accident, for which the defendant is responsible. On the part of the defendant it is insisted that that movement was necessarily incident to the movement of a mixed train composed of freight and passenger cars, such as the train in question, and that the defendant is not responsible for such unavoidable incident in this case. That, too, we think, under the circumstances of this case, was a question for the jufy, and was properly left to them for determination. The jury having found for the plaintiff, there is sufficient evidence in the case to uphold their verdict. Curry v. Gleason,, 71 Hun, 613; 54 St. Rep. 88; Millott v. N. Y. & N. E. R. R. Co., 46 St. Rep. 145; 19 N. Y. Supp. 122.

But it is insisted on the part of the defendant that the plaintiff failed to establish freedom from contributory negligence, and that the evidence of the intoxication of the plaintiff was of itself proof of contributory negligence, which should preclude him from a recovery in this case. That question having been submitted to the jury under proper instructions from the court, we do not see how their determination can be disturbed on this appeal. We cannot hold that the bare fact of intoxication, as proved upon this trial, is evidence of negligence per,- se, which contributed to the accident ; and we think it was properly submitted to the jury by the learned trial judge, for them to determine whether or not it con-ti’ibuted to the injury complained of.

It is also urged that as the plaintiff left his seat while the train was in motion, he, by that act, was guilty of contributory negligence. It has been frequently held that an attempt to board or alight from a moving train is negligence per se. But the evidence' in this case only discloses that the plaintiff arose from his seat, and was moving towards the door, but was not alighting from the car. We cannot hold that what he did in this case in moving towards the door of the car after the name of the station was announced by the conductor was, as a matter of law, such negligence as would preclude a recovery.

It is also insisted that the judge erred in his charge to the jury, and that for that this judgment should be reversed. The only exception taken by the defendant to the charge was to his refusal to charge, as requested by the defendant, on the question of plaintiff’s intoxication. We think the judge’s refusal to charge as requested, and his qualification of such refusal, were both correct. The judgment should, upon all the questions raised, be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Sarah Russell, Resp’t, v. George Willette, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.

    Conversion—When lies.
    Possession of land and crops grown thereon is sufficient to entitle the person in possession-to maintain trover for such crops.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Burke & Scanlon (Charles A. Burke, of counsel), for app’lt; Kellas & Munsill (John P. Kellas, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff prosecuted this action to recover the value of a quantity of bay which she alleges that the defendant had wrongfully converted to his own use. The answer of the defendant denied the conversion, and sot up title in the defendant, alleging that the hay was the product of land owned by his principal, and that he took the hay by virtue of authority from the owner of such land. The evidence disclosed that the plaintiff for many years had been in the possession of the land from which the hay was cut, and was so in the possession at the time of cutting and gathering the bay. We do not deem it necessary in tb is case to discuss the question of the title to this land on this appeal. It is by no means clear that the plaintiff was not, by virtue of the trust deed under which she took possession of this land entitled to retain the possession of the same, as that trust was coupled with the duty of supporting the cestui que trust.. But we do not decide that point. It is enough for the purpose of this action that the plaintiff was in possession of this land, and the hay for which the action was brought. If the defendant’s principal has a better title, she must assert it in an action of ejectment, when she can be fully indemnified for mesne profits. We see no error either in the rulings of the trial judge on the receipt of or rejection of evidence, or in his direction to the jury, or refusal to set aside their verdict.

The judgment is affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Mary E. Ward, Resp’t, v. George B. Boyce, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    Constitutional law—Dun process.
    Where no process, or notice of any kind of the proceedings pending, was ever served upon the defendant, by publication or otherwise, the judgment entered therein is without due process of law. ■
    Appeal from a judgment entered on a decision of the court without a jury.

      Potter & Lillie, for app’lt; O. F. & P. B. Davis, for resp’t.
   Per Curiam.

We have carefully examined the facts of this case, the authorities cited by the learned counsel for the respective parties, and the very able opinion of the learned trial judge, and have reached the conclusion that the j udgment should be affirmed upon that opinion.

Judgment affirmed, with costs.

The opinion of Mr. Justice Kellogg, at circuit, is as follows :

The complaint in this action is upon a promissory note for the sum of $150 made by the defendant, payable to the plaintiff or her order. The answer, in. substance, alleges, as a bar to the recovery on the part of plaintiff, a judgment rendered before a justice *of the peace in the state of Yermont, in an action there brought by one Alonzo Herrick against M. Eugene Ward, the husband of this plaintiff, and wherein it is claimed that the justice determined that the note in question was-not the property of the plaintiff in this action, but the property of her said husband, M. Eugene Ward. The record of that proceeding before the justice shows that M. Eugene Ward, at the. time of the commencement of the action, and at the time of the rendition of the judgment, was a resident of Granville, in the county of Washington, and state of New York; that the plaintiff in that action, Alonzo Herrick, was a resident of Poultney, in the county of Rutland, and state of Yermont. The record further shows that no process, or notice of any kind of the proceedings pending before the said justice, was ever given to the defendant, M. Eugene Ward ; that no summons was published, and no personal notice to the defendant is shown. On the contrary, it is shown that the entire proceedings before the said justice were taken while the defendant, M. Eugene Ward, was wholly ignorant that any such proceedings were pending. The record of such proceedings further shows that the justice rendered a judgment against the said defendant for the sum of $172.45 damages, and costs, $4.34. The record of the proceedings further shows that the defendant in this action, George B. Boyce, was a resident of the state of Yermont; that an attachment or trustee process was issued by the said justice, and served upon the said George B. Boyce, in the said state of Yermont, on the 26th day of September, 1893, attaching whatever of indebtedness was owing by the said George B. Boyce to M. Eugene Ward. And thereafter, on the 9th day of October, 1893, the said George B. Boyce appeared in said court and filed an affidavit whereby he disclosed to the said court that on the 4th day of September, 1893, he made the note in question in this action, and says: “ At said defendant’s place, in Granville, N. Y., I purchased several head of cattle for the price of $200} paying $50 down. Mrs. Mary E. Ward claimed to own the cattle, and the sale to me was made in her name, although her husband [the defendant in that action] was present. I gave to Mrs. Ward my note, payable to her, for $150, payable one day from date. Said note is unpaid.” He also discloses in said affidavit that no other property of any kind of the defendant’s was in his possession, and he further asks that the said Mary E. Ward be cited to appear as claimant. The record further shows that these proceedings were then adjourned until November 27, 1893, and a citation was issued, and the officers were directed to serve the same, not less than six days before the 27th of November, 1893, upon Mary E. Ward, in substance requiring her to come in and make contest as to the ownership of the said note. The proceedings further show that such citation was served upon Mary E. Ward at Montpelier, in the state of Yermont, on the 21st day of November, 1893, personally, and that she did not appear or make any contest before the said justice touching the said note or its ownership. The record further shows that upon default of appearance of said Mary E. Ward the said justice, on the 27th day of November, 1893, rendered a judgment against the maker of the said note, G-eorge B. Boyce, in favor of the said Alonzo Herrick, a creditor of this plaintiff’s husband, for the amount of said note, $150, and interest. It appears by the papers that, prior to the rendition of such judgment against the defendant herein by the said justice, this action had been brought in the county of Washington and state of New York, and personal service of summons and complaint herein had been made upon George B. Boyce, to wit, on the 24th day of October, 1893 ; and the record of the proceedings before the said justice does not disclose this fact, or that the said George. B. Boyce made known the fact of the pendency of this action to the said justice, or asked to have a stay of the proceedings before the said justice until the determination of this action pending in the supreme court in Washington county, in the state of New York.

The facts in this case present something more than can be found in the facts of any reported case to which my attention has been directed. It not only discloses the fact that the justices’ courts in the state of Vermont assume the right to render judgments against debtors, residents of the state of New York, without giving them any notice whatever ^ of the proceedings before them, either by publication, or by personal service within or without the state, but discloses that such justices assume the additional power of determining as to third parties, residents in the state of New York, any controversy respecting the claims of said third persons touching property which may be attached in the state of Vermont by the process of such justices in actions against others, and the right to bring in such parties, and exercise the powers of a court of equity in determining as to such ownership, and as to any fraud which may have been practiced in acquiring a title to such property, all in the same action. To a practitioner in the state of New Yofk, these powers of a justice of the peace in the state of Vermont appear to be largely in excess of the powers vested in the supreme court of this state, either equitable or legal, in'a single action; but without passing upon the question of whether the legislature of the state of Vermont may or may not vest such functions, all in a single action, in a justice of the peace within its jurisdiction, it seems to me that these proceedings before the justice are fatally defective. It is obvious that unless a judgment could have been rendered in that proceeding before the justice in the town of Poultney which would have been a valid judgment against the party trusteed, namely, George B. Boyce, that the action there must wholly fail; that there could have been no lawful determination of the question as to whether the plaintiff in this action, Mary E. Ward, was in fact the owner of said note. On the assumption, then, that the indebtedness of George B. Boyme was an indebtedness running to M. Eugene Ward, the husband of this plaintiff, and not to this plaintiff herself, the judgment there would be no protection to George B. Boyce in any action commenced in the state of New York against George B. Boyce in the name of M. Eugene Ward. The facts in this case are exactly the facts in Martin v. Central Vt. Railroad Co., 50 Hun, 347; 20 St. Rep. 375, in which the court distinctly holds that such a judgment is void by reason of the fourteenth amendment to the constitution of the United States, which says: “Nor shall any state deprive any person of life, liberty or property* without due process of law.” In this case, as in that, no notice whatever was given to M. Eugene Ward, the alleged debtor, of tbe proceedings before the justice. In this case, as in that, the notice of attachment was served upon M. Eugene Ward by the delivery of a copy to the party trusteed, namely, George B. Boyce. In this case, as in that, no notice whatever of the pending proceedings was given to M. Eugene Ward, the alleged debtor. All the facts, indeed, are similar in all particulars to the facts set forth in the case reported. Little, if anything, can be added to the clear discussion of the subject entered into in the opinion of Learned, P. J., and Landon, J., as reported in that action. It is, therefore, unnecessary to here discuss the subject. A simple reference to that case and the opinions therein written is sufficient. The case of Martin v. Cent. Vt. Railroad Co., has not been reversed, or the principles therein enunciated in any manner overruled, so far as I have been able to discover. In fact, this case has been several times since quoted and approved, and must be taken to be the law until some higher court shall decide otherwise. In Douglass v. Phœnix Ins. Co., 138 N. Y. 218; 52 St. Rep. 164, Justice Andrews uses this language: Real and personal property may be subjected to seizure and sale for the payment of debts of the owner, according to the laws of the state or sovereignty where the property is, having regard to the fundamental condition that due process of law shall precede the appropriation. * * * There must be notice, and an opportunity to be heard, either actual or constructive, in such way and form as the law may prescribe.” I have not entered into the question because it does not seem necessary, as to where the situs of the negotiable promissory note sued upon in this action actually was at the time of the pretended attachment by the justice’s process in Yermont. The note was executed in the state of New York. It is dated in the state of New York. The payee, the plaintiff in this action, was then residing, and resides now, in the state of New York. Whether, under such circumstances, any process issued out of a court in the state of Yermont could reach this note, is a very serious question. Referring to this question, the language of Justice Andrews, in Douglass v. Phœnix Ins. Co., 138 N. Y. 219; 52 St. Rep. 164, is applicable, namely: It is at least doubtful whether this qualification of the general rule applies to negotioble instruments, or other written obligations of a resident debtor, held by and in possession of his non-resident creditor.” In fact, the case of Osgood v. Maguire, 61 N. Y. 524, is authority against the proposition that the situs of negotiable paper can ever be determined by the laws of a state to be at the residence of the debtor, where the owner of such paper resides in another state, and such paper is made payable in such other state. This seems to me to dispose of the whole contention on the part of the defendant, for if the judgment was void rendered by the justice in Poultney, Vt., which is set up in the answer as a bar to this action, so far as such judgment relates to M. Eugene Ward, certainly the equitable part of such judgment, determining that this note belongs to the said M. Eugene Ward, and not the plaint-iff herein, is also void. The plaintiff makes many objections to the record of these proceedings, other than the one to which I have referred. I. have not, however, given attention to such objections, nor have I passed upon them, fpr the reason that upon the merits, and on the grounds stated, I find that in no event can the Yermónt judgment be a defense in this action.


text:
    In the Matter of Tiffany & Company.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    1. Certiorari-Comptroller.
    A writ of certiorari may be issued to the comptroller to review a decision of his predecessor, without making the latter a party.
    2. Taxes—Corporation—Constitutional law.
    Chapter 542 of 1880, as amended by chap. 353 of 1889, imposing a franchise tax on corporations, is constitutional.
    3. Same.
    A manufacturing corporation, which does business partly in another state, is taxable here on all its capital employed in this state, including that used in manufacturing here.
    Application to review the determination of the comptroller in the matter of a tax.

      Charles E. Miller, for Tiffany & Co.; N. W. Norton, for resp’t Campbell; Theodore E. Hancock, atty.-gen. (John W. Hogan, of counsel), for resp’t Roberts.
   Mayham, P. J.

This is a certiorari sued out by the People, on the petition of the attorney general, to review the determination of the comptroller made on the readjustment of a tax levied by the comptroller against Tiffany & Co., a manufacturing corporation incorporated under chapter 40' of the Laws of 1848, and as such exempted from taxation under chapter 542 of the Laws of 1880, and the various acts amendatory thereof and supplemental thereto, prior to the enactment of chapter 353 of the Laws of 1889. Under the last mentioned act, Prank Campbell, late comptroller, during his term of office, assessed such corporation, and on a readjustment of such tax, on the application of the corporation, fixed the aggregate tax for the years 1889, 1890 and 1891 at the sum of $6,000, and determined. that the corporation was exempt from taxation prior to that time, under the aet of 1880.

We have at this term determined that this corporation is liable to be taxed for the three years above designated. People ex- rel. Tiffany v. Campbell, 61 St. Rep. 811; 30 N. Y. Supp. 70. The certiorari now under consideration seeks to increase the amount of tax, as fixed by the comptroller on such readjustment, from $6,000 to $36,000, on the ground that the late comptroller erred in settling the amount of the same. Ye shall not repeat here the considerations which led us to hold this corporation taxable under the provisions of chapter 353 of the Laws of 1889, but regard that determination as an authority in support of the right of the comptroller to impose a tax in this case.

It is objected by Tiffany & Co. that Frank Campbell, the late comptroller, is a necessary and proper party to this certiorari, as it was his determination that is being reviewed, and that no proper determination can be had without an opportunity is given him to be heard by his answer. This contention is made under the provision of § 2136 of the Code of Civil Procedure, which provides as follows: “A writ of certiorari may be issued to and a return to a writ of certiorari may be made by an officer whose term of office has expired. Such an officer may be punished for a failure to make a return to the writ as required thereby, or to make a further return, as required by an order for that purpose.”

The writ in this case runs to the comptroller, and is answered by him in his official character, the incumbent of the office having changed between the time of making the assessment and that of suing out the writ. Section 2129 of the Code of Civil Procedure provides that: “The writ must be directed to the body or officer whose determination is to be reviewed; or to any other person having the custody of the record, or other papers to be certified, or to both if necessary * * *.”

The office of comptroller of the state is a continuous office, and while the term in office of a particular incumbent may and does, by the tenure fixed by law, expire as to such incumbent, the office nevertheless devolves on his successor, and is perpetual, and such successor succeeds to the records and papers of the office. The writ of certiorari was therefore properly directed to the comptroller of the state, under the section of the Code last quoted ; and it is elementary that those records are the best evidence of the acts and decisions of the comptroller during a former term of the incumbency of that office, and although this writ may in some cases issue to au officer whose term of office has expired, as provided in § 2136 of the Code, we do not think it applies to a case of this kind. Section 20, added by chapter 463 of the Laws of 1889 to chapter 361 of Laws of 1881, authorizes the attorney general to review by certiorari the action of the comptroller in any revision or resettlement of a tax, and, if the revision or resettlement be found erroneous, the court, by that section, is authorized to correct and restate such account. The acting comptroller, being the custodian of the records of his predecessor, can, without any aid from his predecessor, answer to the writ from the records of his office ; and we can see no reason, under such circumstances, for making such predecessor a party to the writ. We cannot assume, as is suggested by the counsel for Tiffany & Co. by their brief, that there will be collusion between the attorney general and an incoming comptroller to discredit the acts of their predecessors.

It is also objected in the preliminary objection of Tiffany & Co. to this writ that the act under which this tax is imposed is in violation of the state and federal constitutions. We do not think that that is any longer an open question. People v. Home Ins. Co., 92 N. Y. 328; People v. Horn Silver Min. Co., 105 N.Y. 76; 6 St. Rep. 495,—establish its constitutionality under the state constitution; and Home Ins. Co. v. State, 134 U. S. 594, holds that the act of 1880 does not violate any provision of the federal constitution.

This brings us to the consideration of this certiorari upon the merits. Was the tax, as assessed by the comptroller, sufficient in amount, under the evidence ? The comptroller assumed as the basis of his computation that the company was liable to taxation for the amount of its capital employed in its business in the state, outside of its manufacturing business, for the years 1889, 1890f and 1891, but exempted from taxation its .capital employed in its manufacturing business in the state for those years. The attorney general insists that he should have imposed the tax for those years upon its whole capital employed in the state, as it had not been wholly engaged in carrying on manufacturing business within this state. There is great force in the contention of the attorney general upon this point, and we are inclined to hold that he is correct. The real question, therefore, for the comptroller to determine, after reaching the conclusion that this corporation was taxable, was as to the amount of tax to be imposed. That determination must be based upon the amount of capital employed in this state by the corporation during the years for which the tax could be imposed, and including the amount employed in manufacturing within the state. The amount of tax assessed and levied by the comptroller was erroneous, and must be set aside, and the comptroller must be ordered and directed to levy and impose the tax upon the basis of all the capital employed by the corporation in this state during the three years for which this tax was levied. As this controversy arises between state officers, no costs are allowed to either party.

Putnam, J., concurs; Herrick, J., not acting.


author: Hatch, J. White, J.

text:
    The People ex rel. Henry J. Warren, App’lt, v. August Beck, as Sheriff, etc., Resp’t.

      (Buffalo Superior Court, General Term,

      Filed October 8, 1894.)

    Constitutional law—Day’s labok.
    Chap. 105 of 1891, which forbids a contractor for city work, in the city of Buffalo, from accepting more than eight hours for a day’s work, except in cases of necessity, is constitutional.
    Appeal from an order vacating an order granting a .writ of habeas corpus.

      Frank P. Perkins and John G. Milburn, for app’lt; Daniel J. Kenefick, for resp’t.
   Hatch, J.

When this case was before the general term of the supreme court on an appeal from the judgment of conviction, that court reached the conclusion that the statute in question was a valid exercise of legislative power. People v. Warren, 77 Hun, 120; 59 St. Rep. 857. I concur in that opinion, and would not now deem it necessary to add anything further to the discussion did not my associate take a radically different view of the question involved. I do not understand that the views expressed by the supreme court respecting the obligations and rights of employer and employee and the relation of each to the state are questioned. But the claim is that such rules have been misapplied. It was decided in U. S. v. Martin, 94 U. S. 400, that the government had the right to determine the number of hours which should constitute a day’s labor for its. employees,' and that a statute which fixed the number of hours was to be regarded as' forming the basis for all labor contracts made with the government, and constituted a direction by the government, as principal, to its agents. The statute then under consideration did not prohibit a contract for more hours of service in a day, and it was held that such was not its intention; that no change in the law respecting the rights of parties to contract was contemplated, and that a contract for more hours of service than the statutory period was valid. The importance of the decision, as applied to the facts here, is the recognition of the right that the government has the power to determine what hours, for it, shall constitute a day’s labor. The principle did not need an authority to support it, but it was made more sure of application by judicial recognition. If the government has the power of determination in this regard* then it must follow that it lias also the power to make its determination effective, and provide by penalty the enforcement of the law. This is the ordinary and frequent exercise of governmental power. Consequently all agents of the government become subject to the penalty if they infringe the law. Does this many wise interfere with the laborer? Is his right above the conceded power of government in this respect ? His right is the right to offer his labor in the market equally with every other laborer of his class, and no more. If he offer it to the government, he knows what terms the government has prescribed; and if he is not willing to accede to those terms he may not be compelled thereto. But where does the power reside, or did it ever reside, in' the law, which will compel the government to change its terms to compliance with what the laborer demands ? His right is presently, at the place where he offers his labor, but it is subject to the rights of the party, at the same time and place, to whom the labor is offered. It seems to follow, therefore, that between the government and the laborer a law which prescribes the hours that shall constitute a day’s work, and prohibits by penalty its violation, infringes upon no right possessed by either.

It is said that defendant is an independent contractor, and consequently the rules we have invoked have no application to the case. If this were conceded, it might not be possible to answer the claim. But the assertion itself, as I view the facts, if far' from being true. In the sense that the defendant is doing work for the city of Buffalo under a contract to furnish all material and labor in making a public improvement for a given sum, it is the fact; but that it is relieved from the obligations, imposed by the statute upon the city of Buffalo, and assumed by it, is not true as matter of law. Had the city itself performed this work, it would have been within the rule we have announced, and subject to the obligations imposed by the law. How can the defendant plead exemption from such statute, when it has voluntarily, in terms, incorporated it in its contract, and agreed to be bound by and carry out its terms? The city said to the defendant, and to all other contractors, when it invited bids for the performance of the work: “ The statute is one of the conditions which must be complied with, and ail obligation which must be assumed by the contracting party.” The defendant was not obliged to bid. The conditions imposed applied equally to all who should bid. The act of bidding was with full knowledge and voluntary. Under these conditions defendant made its bid, and, when awarded the contract, voluntarily executed the same, and assumed the obligations imposed upon the city by the statute. How can it be said that he was an independent contractor, freed of obligations ? He was an independent contractor, but he is not independent of the obligations imposed by the contract. He has chosen to substitute himself in the place and stead of the city in this regard, and therefore becomes subject to the same obligations and duties which the law imposed upon it. Defendant, by bidding and accepting the contract, became the recipient of all the benefits which accrued therefrom, and he should not now be heard in repudiation of lawful obligations assumed thereby. It is said in Bertholf v. O'Reilly. 74 N. Y. 517: “ A party cannot object upon constitutional grounds to a liability which he has voluntarily assumed, in consideration of a benefit conferred; and one may renounce even a constitutional provision made for his own benefit.”

The reasoning of this case, in principle, is decisive of the claim that defendant is relieved by reason of his independent character. I see no reason for departing from the result reached by the supreme court.

The order appealed from should therefore be affirmed.

White, J.

(dissenting).—The Barber Asphalt Paving Company is a West Virginia corporation, engaged in the business of paving streets in the city of Buffalo, under contracts with it, and the relator is the superintendent of the paving company. In the fall of 1893 the paving company was paving Delaware avenue, one of the public streets of the city, under a contract with the city, which, in compliance with the charter, contained a provision that the company should employ only citizens of the United States, or those who had legally applied for citizenship, and were permanent residents of the city of Buffalo, as laborers in paving said street; and, further, that it (the company) should not accept more than eight hours as a day’s work to be performed by its laborers within nine consecutive' hours; and, further still, that it would not employ any man or set of men for more than eight hours in twenty-four consecutive hours, except in case of necessity. The relator hired and discharged the laborers of the company. During the progress of the work he hired one Brown to work, and Brown did work for the company as a laborer for more than eight hours in nine consecutive hours, and for more than eight hours in twenty-four consecutive hours, to wit, for ten hours in twenty-four consecutive hours, and not in case of necessity. The relator and Brown were both citizens of the United States, and permanent residents of the city of Buffalo. It is for thus employing Brown that the relator has been adjudged to be guilty of a crime, and is now suffering imprisonment. As the charter prescribes no penalty for its violation, § 155 of the Penal Code, as the respondent claims, characterizes the offense as a misdemeanor. The sole question presented for our consideration is whether or not the provision of the charter above referred to conflicts with our national and state constitutions. The constitution of the United States provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; and our state constitution provides that no member of this state shall be deprived of any of the rights or privileges secured to citizens thereof, unless by the law of the land or the judgment of his peers. Neither instrument defines in terms all the privileges and immunities possessed by citizens, nor will the courts attempt to define them in any general way, but will deal with each case on a consideration of its particular facts when it is presented. Conner v. Elliott, 18 How. 591; 2 Story, Const. p. 685. The rights and privileges thus guaranteed, but not defined, therefore, are not created by, but exist independent of, constitutional law. The provision that no member of the state shall be deprived of such a right or privilege, except by the law of the land or the judgment of his peers, means only that it cannot be taken from him, nor be declared forfeited, without a proceeding for that purpose, conducted in accordance with the forms and methods and by the means prescribed for the enforcement of law. No such right can be taken from a member of the state by legislation alone. People ex rel. King v. Gallagher, 93 N. Y. 438. “The .property which every man Las in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength arid dexterity in what manner he thinks proper without injury to his neighbor is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. * * * I hold that the liberty of pursuit, the right to follow any of the ordinary callings of life, is one of the privileges of a citizen of the United’ States of which he cannot be deprived without invading his right, to liberty within the meaning of the constitution.” Such is the language of Justice Field, of the United States supreme court, in the case of Butchers' Union Slaughterhouse Co. v. Crescent City Live Stock Landing Co., 111 U. S. 746. In the case of U. S. v. Martin, 94 U. S. 400, cited in the opinion which prevails in disposing of this appeal, Mr. Justice Hunt, of- the same court, says, in substance, that except in certain business, and persons subject to the police power of the state, principals are entitled to employ whom they will on terms agreeable to the parties. The police power in the state is nothing, more or less than the right of the state to protect its members from harm, and to promote the welfare of the community, even though the exercise of that power may involve the destruction of private rights. It is by virtue of this police power that the legislature assumes to regulate the hours of labor of those engaged in operating railroad trains and street cars, of women and children in certain industries, and the like, and to regulate and control business operations to the end that the health, morals and safety of the community may be promoted. The respondent invokes this power in support of the legislation which we are now considering, but, in my judgment, no fact is or can be stated proving that labor such as Brown performed for the relator for more than eight hours of the twenty-four each day has ever endangered, or will ever endanger, the health, safety or welfare of the community, or of those engaged in such labor. On the contrary, observation and experience assure us that it is one of the “ ordinary callings of life,” and “innocuous” in itself.

We think it is common knowledge that the great mass of our citizens who represent the bone and sinew, the intelligence and patriotism, of the nation, labor more than eight hours a day in the “ordinary callings of life;” that the great majority cherish the privilege so to labor as above all price, and may rightfully regard any abridgment of it as an infringement of their right. If the business of laying pavements in our streets can be said to be nocuous, or that, if it' is not regulated and controlled by the legislature, the lives, health or welfare of those engaged in it, or the welfare in general of society, will be endangered thereby, it will be exceedingly difficult to name any calling of life that should not be thus regulated and controlled. With equal propriety such legislation may be extended to all classes of workers, and for all practical purposes that includes our entire population. If the case at bar is subject to the police power of the state, there would seem to be no valid reason why toilers in all fields of productive labor, manual and intellectual, without discrimination, should not be subject to and controlled by the same power. Honest toil in an “ordinary calling of life,” like that of laying pavement in the open air, will never endanger the life, health, or morals of the community. On the contrary, they will be promoted by it. A desire to profit by laboring to the extent of one’s ability induces the cultivation of thrift, prudence, sobriety, economy, foresight, intelligence, and morality, and those virtues distinguish the great mass of workers in our country. Neither disease, ignorance, crime, nor the necessity for bread at the hands of the state among those who labor comes as a rule from that liberty by virtue of which every member of the state is permitted to exercise all his faculities to their full extent in competition with his fellows in all fields of honest labor without let or hindrance. Legislation such as we are now considering tends to create a class of statutory laboréis, so to speak, in which the standard of ability to earn money shall be uniform, and measured by that of the weakest, most ignorant, debased, and inefficient one in the class. It is said that the men who are the greatest users of capital, the men in whom superior intellect and will are united, come from labor’s own ranks, and that, as a consequence, capital is forever changing hands. The legislation in question conflicts with the operation of that wholesome natural law. It can be enforced only by sacrificing the freedom of the laborer. To put forth effort for the accomplishment of useful ends and the happiness of himself is the mission and destiny of man. As man, and independent of the accidents of birth, it was intended that he should be, and he is, compelled by the law of necessity, which is the law of his being, to utilize and exercise his' faculties and powers to procure shelter, food, and raiment: and it is only by a continuous struggle, and in consequence of repeated failures and mistakes, that he can hope to become what he was designed to be, namely, an intelligent, self-reliant, and morally responsible being. It cannot be expected tha,t all men, even of the class particularly affected by the provision of our charter in question here, will advance with equal rapidity in the social scale. Different degrees of intelligence, strength, cleverness, and honesty must distinguish them. Preventing the exercise of his ability to the utmost by any member of the class for his own benefit and advancement, by pains and penalties, is a crime against labor. Possibly, in the absence of legislation-like that under consideration, some of the individuals sought tobe benefited will be deprived wholly or in part of an opportunity to labor; possibly emigration of the whole or a portion of those individuals to other fields of usefulness may become a necessity; possibly immigration of the inefficient and incapable from other lands will decrease. But better all of these things than that the people themselves shall violate the organic law of their existence as a nation to the prejudice of its worthy citizens.

In considering this case upon its merits I am not unmindful of the fact that our supreme co.urt has held the legislation in question to be constitutional, but the conviction is so strong in my mind that the conclusion reached by that court is at variance with controlling decisions of other courts whose opinions, like its own, are universally respected, that I have ventured, at the risk of being charged with rashness, to record my convictions in the premises. Nor am I unmindful of the fact that law is founded largely upon precedents, and that ordinarily, when a rule has been once deli berately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; but I am clearly of the opinion that whenever the court is satisfied that its own or the decision of a co-ordinate court is erroneous, it should not hesitate to correct the decision which it deems erroneous, and especially, as in this case, when no right of person or property can be prejudiced thereby. In its opinion in this case the supreme court asserts with great force and clearness in a general way the right of the citizen to labor without interference on the part of the state, but says that the city of Buffalo has debarred itself, and all independent contractors with it, of the right to accept more than eight hours as a day’s work, by virtue of the provisions in its charter, and that a violation of those provisions by such independent contractor makes him a criminal According to that opinion, the reason why those provisions of the charter are valid, and thus make a criminal of the contractor, is because—“By means of the statute in question the hours of employment of laborers on contract work for the city of Buffalo are fixed on the part of the city, and it remains for the laborer seeking employment to accept or refuse those terms. If he insists upon working more than eight hours a day, he may seek other employment, either for the whole or for the excess of his time. His liberty of choice is not interfered with, nor his right to labor infringed.”

The sense of the statement is that, because a laborer is not compelled to work in the field referred to at all, unless he voluntarily chooses to do so, his liberty of choice is not interfered with, nor his right to labor infringed. The conclusion reached does not seem to me to logically follow the premises upon which it is based. By the charter the contractor is prohibited, on pain of fine and imprisonment, from accepting more than eight hours as a day’s work ; and the laborer is prohibited, under a like penalty, from working-more than eight hours a daju In exercising their liberty of choice, Brown worked, and the relator accepted, more than eight hours a day as a day’s work; and it is in consequence of having exercised their liberty of choice that the statute has been violated, and the relator is imprisoned. How, then, can it be said that the liberty of choice has not been interfered with? To say that Brown was at liberty to find work in other fields does not, as it seems to me, meet the case. His right is to labor in fields of his choice, so long as his employer chooses to employ him there, and he does not interfere with -the equal right of others. The statement of the case by the supreme court itself makes it plain to my mind that the liberty of choice as to the relator and Brown is interfered with by these provisions in the charter. The only authority relied upon by the supreme court as a precedent for its decision is chapter 352 of the Laws of the United States passed in 1892, and the case of U. S. v. Ollinger, 55 Fed. 959. It says the provisions of that statute are precisely similar to the provisions of the charter which we are considering. Ollinger took from the government a contract to construct two stone barges, and in building the barges he permitted and required his laborers and mechanics engaged in building them to work more than eight hours a day. An information for violation of the statute was laid against him, and the court held that he was not subject to the provisions of the statute, for the reason that he was an independent contractor with the government, and that the statute was intended to apply only to persons owing a duty to the government in the execution of the work under the contract. In the case at bar, the relator, or his principal, the Barber-Asphalt Paving Company, was an independent contractor, owing-no duty to the city of Buffalo except to. perform its contract according to its terms, and in its own way, and free from dictation or control by the city or any of its officials. The rights of the paving company, notwithstanding it was a foreign corporation, are the same as those of a resident citizen. Santa Clara Co. v. Southern Pac. R. Co., 118 U. S. 394. On principal, then, -as it seems to me, the Ollinger Case, in so far as it is applicable to the case in hand, supports the contention of the appellant. The facts in the twocases are quite as similay as the statutes under which they arose. In each case the work was being done by an independent contractor—in the one case for the United States government and in the other for the city of Buffalo. That the paving-company was an independent contractor with the city does not seem to be open to question now. Its duties and obligations were measured by the terms of its contract. Of course, it was not independent of the obligations imposed by the contract, but, if these obligations were in violation of constitutional law, the}*were without force. The contention of the appellant is that, those obligations being illegal and without force, a disregard of them by the relator would not constitute a crime, and I think that contention is sound. The right in question here is inalienable wherever it exists. While it is perfectly true that any man may ordinarily waive the benefit of a provision of law in his favor, it is equally true that there are certain provisions of law in his favor that he cannot waive or barter away, and among them is the “right of pursuit,” as it is called. People v. Gillson, 109 N. Y. 389; 16 St. Rep. 185. In the case at bar the supreme court did not rest its decision upon the police power of the state to control labor dangerous to its welfare, but squarely upon the assumption that the charter does not in terms interfere with the laborer’s liberty of choice, nor infringe his rights to labor for an independent contractor with the city of Buffalo. That question, of course, must be determined by a construction of the language used in the charter. I think it will bear only such a construction as we have already indicated; and, assuming that it is not a case for the exercise of the police power of the state, it seems clear to me that the cases of People v. Marx, 99 N. Y. 386, and Jacob's Case, 98 N. Y. 107, and others like them, are germane to a discussion of the case at bar. In my opinion, those provisions in the charter of the city of Buffalo which forbid the acceptance by an inde pendent contractor with the city of more than 8 hours of work in 24 consecutive hours at the hands of his laborera in the business of constructing pavements in public streets, they and he being citizens of the United States and members of this state, are in conflict with our state constitution, and void. The order appealed from should be reversed, and, as only a question of law is raised by the writ of habeas corpus and the. return thereto, the relator should be discharged from imprisonment


text:
    Alonzo L. Tuska, Resp’t, v. George B. Wood et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Venue—Change—Affidavit.
    An affidavit to change the place of trial for the convenience of witnesses, which merely states that the affiant expects to prove certain facts by the witnesses named, is insufficient.

      Appeal from an order denying a motion to change the place of trial.

      0. A. Andrews, for app’lts; Vincent Bosemon, for resp’t.
   Per Curiam.

In view of the conflict as to the number of witnesses respectfully to be produced upon the trial, and the bearing that their testimony would have upon the issues, it cannot be said that, in determining that the convenience of witnesses would not be served by a change of place of trial, the judge at special term was guilty of a misuse of his discretion. Apart, however, from this, we think that the affidavits upon which the' motion itself was. based are clearly insufficient, within the case of Thurfjell v. Witherbee, 70 Hun, 401, 402; 54 St. Rep. 96, wherein it is said: “ Affidavits to change the place of trial, which state that the moving party can prove material facts by the persons named, are held to be sufficient; but affidavits stating that the moving party ‘ expects’ to prove such facts are insufficient, unless the affidavits disclose grounds showing that the facts can probably be established by the persons designated. This may be done by positive averments made by the party, or by affidavits of the proposed .witnesses.”

The order appealed from is therefore affirmed, with f 10 costs and disbursements.