text:
    William Moore, Resp’t, v. Maria Moore, App’lt.

      (Court of Appeals,

      Filed June 30, 1893.)

    Divorce—Discontinuance—Appeal.
    In an-action for divorce on the ground of adultery of the wife, in which the marriage was admitted and the answer consisted of denials of the adultery charged, the court allowed the plaintiff to discontinue on payment of taxable costs after the cause had been placed on the calendar. Held, that the granting of the application and the terms to be imposed rested in the discretion of the court, and such discretion was not reviewable in this court.

      Appeal from order of the supreme court, general term, third department, affirming order of special term allowing a discontinuance of the action on payment of taxable costs. Action for divorce on the ground of adultery on the part of defendant. The answer admitted the marriage, denied the allegations of adultery and made no countercharge. After the cause had been placed on the calendar plaintiff applied for leave to discontinue on paj'ment of costs, which was opposed by defendant, who insisted upon a trial in open court that"her character might be vindicated, and also asked that in case of a discontinuance she be allowed a-counsel fee. The application was granted by the special term. 51 St. Rep., 911.

      R. A. Parmenter, for app'lt; Arthur L. Andrews, for resp’t.

       See 53 St. Rep., 983.

   Per Curiam.

The order of the general term, which affirmed an order of the special term granting the plaintiff’s application to discontinue this action upon payment by him of the costs, is not re viewable in this court. The action was for a divorce upon the ground of adultery, and was on the circuit calendar when the order of discontinuance was made. The court had before it the moving affidavits and the opposing affidavits made by the defendant and her attorney, and it was upon their consideration, as well as of the pleadings, that the order was granted. Under the circumstances developed, it was within the discretion of the court to grant or tó refuse the plaintiff’s application. It does not ‘appear that there was any violation of any right or interests of the defendant. In fact the granting of the order of discontinuance might be regarded as a concession on the part of the plaintiff that he was unable to prove his case. There was no abuse of the discretion which rested in the court with respect to the application, and it was for it to pronounce upon the terms to be imposed upon the plaintiff as a condition of the discontinuance.

The appeal should be dismissed, with costs.

All concur.


source: Caselaw Access Project

author: O’Bbieh, J.

license: Public Domain

text:
    The People, Resp’ts, v. Theodore W. Myers, Comptroller of the City of New York, App’lt.

      (Court of Appeals,

      Filed June 30, 1893.)

    1. Taxes—County liable fob, interest upon failure to pay state tax.
    Each county becomes a debtor to the state for its quota or proportion of the state tax, payable at a specified time, and if, for any reason, it neglects or refuses to perform the obligation, it becomes chargeable with interest from the time the debt or obligation became due.
    3. Same—Question as to right to interest not raised by general exception TO VERDICT.
    When a party seeks to recover or compel the payment of a specified sum of money alleged to have fallen due before the commencement of the proceeding, and proof is given without objection as to the amount of interest that has accrued since the date when payment should have been made, and a general verdict is directed for a sum which includes interest,, to which direction an exception is taken, the question as to the right to interest is not raised. The attention of the court should he directed to the question either by objecting to the proof of interest or by requesting some specific ruling on that point.
    Appeal from judgment of the supreme court, general term, third department, affirming final judgment awarding a peremptory mandamus commanding defendant to issue revenue bonds of the city and county of New York, and negotiate the same for the purpose of raising the amount of state taxes due from said county for the fiscal year beginning October 1, 1889.

      David J. Dean, for app’lt; S. W Rosendale, Atty. Gen., for resp’ts.

       Affirming 48 St. Rep., 880.

   O’Bbieh, J.

The comptroller of the city of New York is-

authorized and required by statute to issue and negotiate revenue bonds for the purpose of raising money to pay the quota or proportion of the state tax chargeable to the city and county of New York. He is required in this way, unless the money is otherwise provided, to pay the state tax at the same time or times that the other counties of the state are or may be required to make payment by law, to wit, one-half thereof on the 15th day of April and the other half on the first day of May in each and every year Laws 1882, ch. 410, § 158.

A portion of the tax due and payable by the city and county of New York to the state treasury on May 1, 1890, was not paid, and the comptroller neglected or refused to issue revenue bonds to raise the money for its payment. The attorney-general, in behalf of the state, applied for a peremptory mandamus against the comptroller, requiring him to issue and negotiate the bonds, and out of the proceeds to draw his warrant and pay the tax. Certain allegations in the petition for the writ were put in issue, and an alternative writ was issued, to which a return was made, and upon the petition, writ and return the cause was tried. The court directed a verdict for the state for the amount of the tax unpaid on May 1, 1890, and the interest thereon from that date. Judgment having been entered on the verdict and affirmed at general term, the case comes here upon appeal, and the record presents but a single question, and that is whether the city and county of New York was properly charged with interest on the unpaid taxes from the time when they should have been paid into the state treasury. We think there was no error in the direction of the learned trial judge with respect to the interest.

Under the system for the assessment and collection of taxes that prevails in this state, the several counties represent the individual taxpayers as between them and the state. The county is responsible to the state for its quota of the state tax, and is clothed with all the powers necessary to enable it to collect the tax and pay the same into the state treasury. The powers conferred for this purpose and the duties imposed create an obligation against the county to levy, collect and pay the tax to the state at the time designated by law, and for failure to do so it is in default. Each county becomes a debtor to the state for its quota or proportion of the tax, payable at a specified time, and if, for any reason, it neglects or refuses to perform the obligation, the same consequences must follow as in the case of any other debtor who fails to meet his obligations, and that is the liability to be charged with interest from the time the debt or obligátion became due. Mayor, etc., v. Davenport, 92 N. Y., 604, 616; People v. County of New York, 5 Cow., 331.

In this respect the relations of the city and county of New York to the state are precisely the same as the other counties of the state. So that upon general principles and irrespective of any statute on the subject of interest, the appeal cannot be sustained.

By chapter 427 of the Laws of 1855, the comptroller is required to charge the several county treasurers with the amount of the state tax to be raised in their respective counties, crediting them with their fees, and to state the account between the state and the several counties, and transmit a copy of the same to the county treasurers on the first day of May in each year, requiring payment of any balance then due. This statute further provides that, in the event of default, refusal or neglect on the part of any county treasurer to pay any balance, the same shall be referred to the ■attorney-general, who shall prosecute forthwith, and the state shall be entitled to recover the balance due, with interest thereon from the first day of May in the year in which the same ought to have been paid. The comptroller of the city of New York is the fiscal officer that bears the same relations to the state with respect to the payment of the state tax as the county treasurers in the other ■counties, and he is chargeable with the same duties and obligations, so that this statute applies to him when he omits or refuses to pay the state tax when due.

It is said that interest should not have been allowed, because not claimed or demanded in the alternative writ. This objection, we think, comes too late. -The People claimed interest at the trial, because proof was given by them as to the amount and computation, and the defendant made no objection upon this or any other ground, and raised no question in any form.as to the amount or items included in the judgment. Indeed, there is but one exception in the record, and that is a general one to the direction of a verdict. When a party seeks to recover or compel the payment of a specified sum of money alleged to have fallen due before the commencement of the proceeding, and proof is given without objection as to the amount of interest that has accrued since the date when payment should have been made, and a general verdict is directed for a sum which includes interest, to which direction an exception is taken, the question as to the right to interest is not raised. The attention of the court should be directed to the question either by objecting to the proof of interest or by requesting some specific ruling or direction on the point. It is apparent from the record that the attention of the trial court was not called ■.to the question of interest at all.

The judgment should be affirmed, with costs.

All concur, except Maynard, J., not sitting.


author: Dwight, P. J.—

text:
    The People, Resp’ts, v. Benjamin F. Jewett, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Criminal law—Appeal.
    The only allegations of error which can be considered by the court on appeal from a court of special sessions, are those alleged in the affidavit upon which the appeal is allowed.
    8. Same—Special sessions—Amendment op sentence.
    Defendant was convicted of assault in a court of special sessions, and sentenced to fine and impr sonment, on Saturday night; but on Sunday, on the solicitation of defendant’s counsel, the court undertook to modify the sentence by imposing a fine of $75, without imprisonment. On Monday, learning that his action on Sunday was probably void, he gave the original certificate to the constable. Held, that the jurisdiction of the court ceased with the sentence and issue of the certificate; that the subsequent proceedings were void, but did.not affect the validity of the original judgment or the certificate issued at that time.
    Appeal by the defendant from a judgment of the court of sessions of Wyoming County, .affirming the judgment of a court of special sessions of the town of Genesee Falls, convicting the defendant of the crime of assault in the third degree.

      H. H. Relyea, for app’lt; G. W. Botsford, Dist. Att'y., for resp’ts.
   Dwight, P. J.—

Counsel for the appellant in his brief and argument in this court propounded several alleged errors which were not mentioned in the affidavit presented to the county judge upon which the appeal to the court of sessions was allowed. Code of Grim; Pro. § 751. These allegations of error could not properly have been considered by the court from whose judgment this appeal is taken, nor will they be considered here. The statute above cited requires that the affidavit of appeal must state “ the facts showing the alleged errors in the proceedings or conviction complained of,” and by provisions of the following section (752) it is only when, in the opinion of the-judge to whom the affidavit is presented, “ the question arising on the appeal should be decided by the court of sessions,” that the appeal will be allowed. Moreover, by the provisions of § 756 of the same statute, it is only to the matters stated in the affidavit ” that the magistrate or court rendering the judgment is required to make return.

Under these several provisions of statute it has been well held that it is only the grounds of error alleged in the affidavit which will be considered on the appeal so allowed. People ex rel. Baker v. Beatty, 39 Hun, 476 ; People v. McGann, 43 id. 55 ; 6 St. Rep., 541.

In this case the only allegation of facts as ground of error, contained in the affidavit, which requires to be considered, is to the effect that after the court of special sessions had sentenced the defendant to fine and- imprisonment, on the rendition of the verdict on Saturday night, the justice who held the court assumed to re-open it on the next day (Sunday) and revoked the former sentence and then sentenced the deponent to pay a fine of $75, and stand committed until paid, etc.; and then and there delivered a commitment or certificate of conviction accordingly to a constable of the town, and the errors alleged are that such, “ conviction and sentence are void and of no effect, for the reason that the court has no power to fine the defendant to exceed $>50: under §717 of the Code of Criminal Procedure, and (second) no right to sentence defendant on Sunday, and (third) no right to revoke his sentence in any manner'.”

It is quite true that the sentence and • certificate of conviction here referred to are “ void and of no effect,” for the reasons, or some of them, above stated; but because they are so void and of no effect they do not affect the valid judgment which was pronounced on Saturday and the proper certificate of conviction which was made out and signed on the same day, and was delivered to the proper officer on Monday morning.

The facts as they appear by the return and further return of the justice, are as follows: The trial of the defendant was concluded and the verdict of the jury rendered on the evening of Saturday, August 13. At that time judgment was pronounced sentencing the defendant to pay a fine of fifty dollars and to be imprisoned in the county jail for the period of thirty days, and at the same time a certificate of such conviction w&s made out and signed by the justice, but at the request of the defendant and his counsel was not delivered to the officer that night, and the defendant was permitted to go at large for the time being. That night and the next day the justice was urged by the defendant’s counsel to remit the sentence of imprisonment and instead of it to increase the amount, of the fine, which, it was promised, should be immediately paid. On Sunday the justice, induced by the persuasion of the defendant’s counsel, and his advice that it was competent and lawful to do so, assumed to modify the sentence so as to impose a fine of seventy-five dollars, without imprisonment except until the fine was paid, and to make out and sign what purported to be a new certificate of conviction and to deliver it to a constable, but with the direction not to take the defendant into custody until Monday at three o’clock in the afternoon ; this time being given, at the request of the defendant’s counsel, to enable him to raise the money with which to pay the fine of seventy-five dollars.

But on _Monday morning the justice, having learned that the whole of the action of Sunday was probably “ void and of no effect,” withdrew; the void certificate of conviction from the constable and delivered to him the valid certificate which was made out on Saturday, and the defendant was arrested thereon.

It will be seen that there is nothing in this narrative which impugns in any degree the validity and binding effect of the judgment pronounced on Saturday evening or of the certificate of such conviction made out at that time. Both were, so far as- appears by the record before us, entirely regular and valid. The defendant stood lawfully convicted of the crime with which he was charged, lawfully sentenced to a fine and imprisonment which were within the limits of the statute, and a certificate of such conviction and sentence was duly prepared and was subject to be executed whenever delivered to the proper officer.

This was the end of the jurisdiction of the court of special sessions over the case. That court, organized pro hac vice, thereupon becamq functus officio and the justice who had held it had no power to reorganize or re-open it for any purpose whatever in connection with this case. All the proceedings of Sunday were without jurisdiction and were, indeed, void and of no effect. Lattimore v. People, 10 How Pr., 336; People ex rel Cook v. Smith, 28 St. Rep., 306. The valid judgment in the case, pronounced on Saturday, was unaffected thereby and was properly affirmed by the court of sessions.

It follows that the judgment of the last named court must also be affirmed.

Judgment and conviction of the court of sessions of Wyoming county appealed from affirmed, and case remitted to that court to proceed therein.

Lewis, Macomber and Haight, JJ., concur.


author: Dwight, P. J.

text:
    The People, Resp’ts, v. Philip Mago, App’lt

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)
    Ferries—Excursion boat for picnic parties is not a ferry.
    The use of a small steam yacht in conveying passengers for hire on Sundays and holidays, when not otherwise engaged by excursion parties, from a village to private grounds used for picnic purposes, and not connected with any highway, does not constitute a maintenance of a ferry within the meaning of § 416 of the Penal Code.
    Appeal by the defendant from a judgment of conviction of the court of sessions of Brie county.

      T. C. Becker, for app’lt; Jno. Cunneen, for resp’ts.
   Dwight, P. J.

The judgment convicted the defendant of a misdemeanor, vizi: of maintaining a ferry without authority of law, under § 416 of the Penal Code. At and before the time named in the indictment and down to the time of the trial the defendant was the owner of a small steam yacht which he employed, on Sundays and holidays, mainly in conveying passengers for hire from the village of Tonawanda across the east branch or channel of the Niagara river to a place of public resort on Grant Island, known as “ Sour Springs Grove,” and back again, though he did occasionally charter his boat to take parties for the trip around the island. Sour Springs Grove was private property, comprising a house of entertainment, picnic grounds, merry-go-rounds, and a wharf at which boats might land. The wharf was not connected with any public highway, but was maintained by the proprietors for the accommodation solely of visitors to the-grove. It was at the request of the proprietors that the defendant began to run his boat to the grove, and they gave him the use of the wharf for that purpose.

The boat’s berth, when tied up, was within the mouth of Tonawanda creek, at which place, when about to run to Sour Springs, the defendant took on such passengers as offered for the trip. After leaving the mouth of the creek he steamed up the river along the water front of the village three-fourths of a mile or more, stopping at any point where he was hailed to take on a passenger, and then passed diagonally across the stream to his destination.

We are of the opinion that the prosecution of the business or enterprise thus described was not the maintenance of a ferry within the intendment of the statute, supra ; we think it lacked some of the essential elements which are included in late and authoritative definitions of a ferry. In the case of the Mayor of New York v. Starin et al., 106 N. Y., 11; 8 St. Rep., 655, Judge Earl says: “ In a general sense it [a ferry] is a highway over narrow waters ” ; and, further, “ a ferry is a continuation of the highway from one side of the water over which it passes to the other, and is for the transportation of passengers or of travellers with their teams and vehicles and such property as they may have with them.” And in the Same v. New Jersey Steamboat Co. the same judge remarks: “ There was nothing in the structure of the. defendant’s boats which deprived them of the character of ferryboats; they were adapted to carry travellers with their horses, vehicles and other property, and hence they could engage in a ferry business.”

The American and Eng. Encyc. of Law defines a ferry “ a public highway of special description, and its termini must be in.places where the public have rights, as towns or vills or highways leading to towns or vills. .The right of the grantee is in the one caso an exclusive right of carrying from town to town ; in the other of carrying from one point to another, all who are going to use the highway to the nearest town or vill to which the highway leads on the other side;” citing Huzzey v. Field, 2 Crompt., M. & R., 442. The same compendium of law also quotes the following definition and remarks from the authorities cited: “A ferry is nothing more than the continuation of a road, and, as far as regards the authority of the state and general governments, does not differ from a toll bridge.” Steamboat James Morrison, Newberry’s Admr., 251. “A ferry is a highway for all the Queen’s subjects paying toll.” Ferry Co. v. Barker, 2 Exch., 149. “ Where a stream

crosses a public highway the continuity of the highway is not broken ; it does not end" on the one side of the stream and begin again on the other, byt continues across the stream, and the public for the purpose of travel, have the same right to go on the water over the highway that they have to pass along other portions of it But as a physical obstruction intervenes it is necessary that some convenient means of transportation shall be furnished, and the simplest and most economical in many cases is a ferry.” Sullivan v. Supervisors, 58 Miss., 799. These and similar expressions of the courts seem to indicate some essential elements or characteristics of a ferry which were absent from the enterprise conducted by the defendant. His route had no connection with a highway on either side of the stream ; his boat was incapable of transporting the property of his passengers beyond what they carried on their, persons or in their picnic baskets; his landing was on private property from which any of his passengers might be excluded at the pleasure of the owners ; he ran only on Sundays and holidays, and then made the1 trip across the river only when his boat was not chartered for an excursion elsewhere. In short he never carried travelers, but only excursionists, and his boat was a pleasure boat and not a ferry boat.

We think the case, as it stands upon the evidence before us, does not make out the offense of unlawfully maintaining a ferry, and that the judgmentof conviction must be reversed and a new trial ordered.

Judgment of the court of sessions of Erie county reversed and a new trial granted.

Lewis, Macomber and Haight, JJ., concur.


author: Per Curiam.

text:
    Henrietta Fisk, Resp’t, v. James Gordon Bennett, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Service—Substituted.
    A direction in an order for substituted service that the service be made on defendant at a place other than that of his residence is a fatal error.
    Appeal from order denying motion to vacate order for substituted service.

      John Townshend, for app’lt; B. C. Chetwood, for resp’t.
   Per Curiam.

Section 435 of the Code of Civil Procedure provides: “Where a summons is issued in any court of record, an order for the service thereof upon a defendant residing within the state may be made by the court or a judge thereof * * * upon satisfactory proof * * * that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be ascertained, or, if he is within the state, that he avoids service so that personal service cannot be made.”

Section 436 provides that the order must direct that the service of the summons be made by leaving a copy thereof and of the order at the residence of the defendant, with a person of proper age, if, upon reasonable application, admittance can be obtained, and such a person found who will receive it, or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant’s residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper, addressed to him at his place of residence, in the post-office at the place where he resides. The affidavits upon which the original order was made, and upon which the motion to vacate it was heard, show that the defendant is a resident of the state of Hew York, and is temporarily sojourning in the city of Paris, France. By the order it was directed “ that said summons be served by leaving a copy thereof and of this order at Ho. 220 Broadway, in the city of Hew York, with a person of proper age, and by depositing another copy of said summons and this order in the general post-office of the city of Hew York, properly inclosed in a post-paid wrapper addressed to said James Gordon Bennett, 220 Broadway, Hew York City.” It appears by the moving affidavit, which is not disputed, that No. 220 Broadway is not, and never has been, the residence of the defendant, but that his residence is, and for many years has been, at No. 28 West Twenty-First street in said city. This direction for service upon the defendant at a place other than that of his residence, as provided by the Code, was a fatal error, for which the order must be reversed.

The order is reversed, with ten dollars-costs and printing disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., Follett and Barrett, JJ., concur.


author: Van Brunt, P. J.

text:
    Marie T. Upington, Plff, v. Michael A. Corrigan et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Judicial notice—Reasonable time to build church.
    The court may take judicial notice oí the fact that 29 years is an unreasonable time to take in which to commence building a church, unless some sufficient explanation is given, and evidence of that fact is not necessary.
    2. Deed—Condition subsequent.
    Where a conveyance is made on condition that the grantee shall erect a church on the premises, the condition is intended to follow the estate granted into whosoever hands it may come, and the premises are not relieved of such condition by the death of the grantee, although his heirs, executors and assigns are not mentioned in the condition.
    Exceptions ordered to be heard in the first instance at the general term in an action of ejectment.

      James M. Hunt, for the motion ; T. G. Barry, opposed.
   Van Brunt, P. J.

This is an action of ejectment commenced in July or August, 1891, to recover possession of certain premises for breach of conditions subsequent contained in the deed by which plaintiff’s ancestor conveyed the same. The facts conceded are as follows-: One Mary McDonough Davey, being the owner of the premises in question, conveyed the same to the Reverend John Hughes for nominal consideration, by a full covenant warranty deed, on the 19th of September, 1862. This deed, in addition to the usual covenants, contained the following:

“To have and to hold the above granted, bargained and described premises, with the appurtenances, unto thesaid party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof forever, upon the conditions following, to wit: That said party of the second part shall consecrate, or cause to be consecrated, the said property, for the purpose of erecting a church building, and shall within a reasonable time erect, or cause to be erected, such building. And reservation is hereby made by said party of the first part to appropriate, at her option, either of the ground under such building or outside thereof and within the boundaries of the property hereby conveyed, a sufficient place of interment or burial for her late husband, now deceased, family, and self, and to erect a suitable tablet or monument to their memory.”

The defendant Corrigan having succeeded to the title of Hughes, and being in possession of the premises, and none of the conditions of the deed of Davey having been complied with, this action was brought-to recover possession of the same by the plaintiff, who, with the defendant Pooler, are the only living heirs at law of Mary Davey, upon the ground that, there having been a breach of the conditions upon which the grant was made, such grant was forfeited. Upon the trial, these facts appearing, the plaintiff rested, and the court was asked to dismiss the complaint upon the grounds: First, that, as there was no allegation of forfeiture during the lifetime of Hughes, and as the condition in the deed did not name his heirs, executors, administrators or assigns, the condition could not be broken after his death; and, second, the condition not being binding upon the defendant Corrigan, no right of action for forfeiture because of the breach of condition existed against him; and, third, that the burden was on the plaintiff to prove that a reasonable time had elapsed in which to build a church, having in view the situation of the premises. These motions the court appears to have denied, but directed a verdict for the defendant upon the ground that there was no sufficient evidence to show that a reasonable time had elapsed with reference to the situation of the property and within which to build a church; and that the question of reasonable time being one of law, the court must have before it some evidence upon which to base a ruling more than the mere lapse of time. To this ruling the counsel for the plaintiff duly excepted, and this is the exception presented upon this motion.

Grant in 1862, no compliance with conditions in 1891, 29 years having elapsed, must evidence be offered to show that 29 years is an unreasonable time to take in which to construct a building? There are a large number of facts of which the court always takes judicial notice, they being those which form the common knowledge- of mankind, and which everybody takes into consideration in the ordinary affairs of life. Suppose that the condition had been that the grantee should go from Hew York to Albany within a reasonable time, and 29 years had elapsed and he had not gone, and no explanation was given of the delay, could it be argued for a moment that it would be necessary to offer evidence to show that there had been time enough to have made the journey, which we all know could have been made thousands of times during the period which had elapsed? . This is substantially the case at bar, and the court may take judicial notice of the fact, which is common knowledge, that 29 years is an unreasonable time within which to commence to build a church, unless some sufficient explanation is given.

In drawing the answer of the defendant it was thought necessary to allege as new matter the grounds upon which it was to be claimed that the delay was not unreasonable, and this new matter, we think, he should have -been called upon to prove, as for the purposes of the trial it was denied. After hearing the proofs, it could be determined whether a delay which upon its face appeared unreasonable had been excused. It is claimed, however, that the condition called for the performance of Archbishop Hughes only and, he being dead, the property was relieved of the condition’ and we are referred to the case of Emerson v. Simpson, 43 N. H.,. 475, as an authority to sustain this proposition. That case turned upon the particular language of the condition, and seems to have-but little bearing upon the case at bar. It was the evident intention in the case at bar that the condition should be annexed to-an d follow the estate granted into whosoever hands it might come, otherwise the plain object of the grant would be defeated. Such was the rule held in the case of Langley v. Chapin, 134 Mass., 82 and recognized in Rose v. Hawley, 118 N. Y., 502; 30 St. Rep., 6, and is certainly in consonance with the plain intention of the-grantor. We are of the opinion, therefore, that-the court erred in directing a verdict for the defendant; and the exceptions should be sustained, and a new trial ordered, with costs of this application, to plaintiff to abide final event.

Follett and Barrett, JJ., concur.


text:
    George P. Rowell et al., Resp’ts, v. Joseph E. Janvrin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Pleading—Amendment of complaint—Action against stockholder.
    An amendment of a complaint in an action against a stockholder of a-manufacturing company upon a liability by reason of failure to file the certificate that the capital stock had been paid in, by allowing a liability under § 14 of the act in reference to the purchase of property and the issuing of stock therefor, is erroneous, as the cause of action sought to beset, up is entirely independent of that alleged in the original complaint.
    Appeal from an order of the court at special term, granting-leave to the plaintiff to serve an amended complaint.

      Richards & Heald (Dickinson W. Richards and Austen G. Fox, of counsel), for app’lt; Carpenter & Hassett (Jonathan C. Ross, of counsel), for resp’ts.
   Per Curiam.

We are of the opinion that the court erred in-permitting the amendment of the complaint by the order appealed from. The cause of action sought to be set up by the amended complaint was entirely independent of, and had no relation to, that which had been alleged in the" original complaint. In the original complaint a liability of a stockholder was sought to be enforced because of the failure to file a certificate that the whole of the capital stock had been paid in, under §§ 10 and 11 of the manufacturers’ act. By the amended complaint a liability upon-the part of the stockholder was attempted to be set up arising from the provisions of § 14 of the same act, in reference to the purchase of property, and the issuing of stock therefor. These were distinct, independent grounds of a recovery, the” only common feature being that in eacli the defendant was sought to be charged as a stockholder. We think the court should not have ingrafted upon this action, in which the plaintiffs seemingly confess that they cannot succeed, an independent cause of action. The order appealed from should therefore be reversed, with $10 costs • and disbursements of this appeal, and the motion denied, with $10 costs.

Yah Brunt, P. J, Follett and Barrett, JJ., concur.


text:
    Gerhard Wessels et al., Resp’ts, v. Gustavus Adolphus-Boettcher, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Attachment—Affidavit.
    An affidavit which merely states that plaintiffs shipped merchandise to-defendant and advanced money to him, and that there is an account current between them upon which a certain sum is due, without stating how much merchandise was shipped or its value, or how the sum is arrived at, is insufficient to obtain an attachment, as not showing a cause of action.
    Appeal from an order of the special term denying a motion to vacate a warrant of attachment.
    The affidavit for the attachment was as follows:
    Charles T. Wessels, being duly sworn, doth depose and say that-he is one of the plaintiffs named in the above-entitled action. That-the plaintiffs at the several times hereinafter mentioned were copartners. That the above-named defendant is indebted to the-above-named plaintiffs in the sum of $4,438.09 over and above all counterclaims known to plaintiffs upon the cause of action for breach of express contract other than a contract to marry, and that the grounds for the plaintiffs’ claim are as follows, to-wit: That-plain tiffs are merchants doing business in the city of New York ; that the defendant is a merchant residing in Spanishtown, Jamaica; that plaintiffs have, from time to time, for many years last past, shipped merchandise to the defendant, and advanced money to him, and there is an account current between them ; that on September 15, 1892, there became and was due the plaintiffs from the defendant upon said account current the sum of $4,438.09 over and above all offsets and counterclaims known to the plaintiffs that no part of said sum has been paid, and the amount thereof, with interest from September 15, 1892, is wholly due and unpaid from defendant to plaintiffs, and plaintiffs have a cause of action against the defendant therefor for breach of contract; that plaintiffs are about to commence an action to recover the same; that-the summons is made out, and a copy thereof is hereunto annexed. And this deponent further says that the defendant is not a resident of the state of New York, but is a nonresident thereof, and resides in Spanishtown, Jamaica, British West Indies.

      Geo. W. McKenzie and Jason Hinman, for app’lt; Wing, Shoudy & Putnam (Joseph A. Shoudy, of counsel), for resp’ts.
   Per Curiam.

It is necessary, in an affidavit to obtain an attachment, that the plaintiff should set out in such affidavit a. good cause of action, unless a complaint accompanying the summons is made a part thereof, in which complaint a good cause of action is set forth. In the case at bar the cause of action attempted to be set out clearly does not state facts sufficient to constitute a cause of action-. There is no allegation except that of an account current. It is true that the items of such account current are stated to consist of merchandise and money advanced, but how much merchandise, what its value was, or how such value-was arrived at, or upon what basis the plaintiffs claim a recovery, are not even hinted at. Under such circumstances, no recovery can be had upon a cause of action set out in this manner. Therefore, there being before the court no proof of the existence of a cause of action, no attachment should have been issued. The order appealed, from should be reversed, with $10 costs and disbursements, and the attachment vacated, with $10 costs and disbursements.

Van Brunt, P. J., Follett and Barrett, JJ., concur.


text:
    The People ex rel. Henrietta Fisk v. The Board of Education of the City of New York.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Schools—Removal of teachers—Laws 1883, Chap. 410, § 1043.
    Section 1043 of the consolidation act, relating to the removal of teachers, applies to principals of schools, and under that section a principal may be removed on the recommendation of the city superintendent, or the other officials mentioned, without a hearing or the assignment of a cause.
    3. Same—Adoption of report.
    The committee to which the recommendation had been referred reported in favor of removal and submitted a resolution to that effect for adoption. The board by the requisite vote adopted the report, but took no direct action on the resolution. Held, that, taking the entire proceedings together, the presentation of the report embodying the resolution and the adoption of the report carried with it an adoption of the resolution itself and resulted in the removal of relator.
    Certiorari to review the action of the Board of Education in removing relator as principal of the primary department in one of the public schools.

      B. C. Chetwood, for relator; R. G. Beardslee, for resp’t.
   Per Curiam.

The relator was a principal in a public school ■of this city, and was removed from her place by a vote of three-fourths of all the members of the board of education, upon the recommendation of the city superintendent, for conduct unbecoming a teacher. Section 1042 of the New York city consolidation act of 1882 (chapter 410) provides as follows :

“Any teacher may be removed by the board of education upon the recommendation of the city superintendent, or of a majority of the trustees for the ward, or of a majority of the inspectors for the district, but only by a vote of three-fourths of all the members of said board.”

This language, as applicable to a teacher, is so plain as to admit seemingly of but one construction. It is insisted, however, by the appellant that it does not apply to principals; but a reference to §§ 1033, 1036, and 1038 of the consolidation act shows very clearly that principals are expressly included as teachers in all provisions of the statute relating to their appointment and removal. Section 1042, therefore, authorized the board of education by a three-fourths vote to remove a principal upon the recommendation of the city superintendent, and in the case of People v. Board of Education, 52 N. Y. Super. Ct., 520, it was held that such removalmay be without cause asserted or shown, or opportunity to ‘be heard against the removal. The reasoning of that case, and the authorities referred to therein, justified the conclusion reached by that court in the construction thus given to this section of the ■consolidation act, and it is needless to refer to such authorities, ór to say more than that we regard the reasoning and the conclusion there reached to be decisive of the power thus claimed for the board of education. But we do not think that it requires the citation of any authorities to establish the right of the board of education to remove any teacher upon the recommendation of the ■city superintendent without giving any hearing or assigning any cause, for the simple reason that the statute plainly says that they shall have that power. We should rest our decision upon the statute were it not that we deem it proper to correct what we regard to be an .error in the statement of counsel for appellant. In his brief he says that, “without any pretext or" reason given, Mr. Jasper again recommended her removal. The committee on teachers held a meeting six days later, without the examination of a single witness, or any opportunity to accused to produce one. The relator and her counsel were excluded, and the committee forthwith made a report recommending the removal of relator, .and to that end reporting a resolution to that effect."

The return to the writ shows—and there is nothing in the record to the contrary—that the recommendation of the superintendent was referred by the board to its committee on" teachers, and that, after its consideration by such committee, the relator was notified to attend, and did attend with her counsel, and had an opportunity to be heard and to produce witnesses and testimony in her behalf, and that it was after examining the relator herself that the committee, with thedcnowledge thus derived, and the knowledge which they had from a prior investigation of charges against the relator, all of which are fully set forth in the return, that they deemed it proper to adopt a resolution for her removal in accordance with the recommendation of the superintendent.

The only serious question upon this appeal is as to the procedure of the board in acting upon the report of the committee. The committee on teachers, in their report to the board, after reciting the facts of the recommendation for removal, and the result of their deliberations, say: “Your committee, therefore, submit for adoption the following resolution : ‘ Resolved, that Miss Henrietta Fisk, principal of primary department Ho. 71, upon the recommendation of the city superintendent of schools, be, and she is hereby, removed.’ ” In executive session the president announced for consideration this report of the committee on teachers, and the return shows that, after some time spent in consideration of the report, “ the president put the question whether the board would adopt said report, and it was decided in the affirmative,” more than three-fourths voting therefor. The appellant now insists that under the trae construction to be given to § 1042, the vote should be a direct one, and that the mere adoption of the report did not carry the resolution, and that, therefore, the resolution was not passed, and no direct vote was taken on the removal.

As to the necessity for a direct vote, we find.no language in the section which wmuld require such a procedure ; but in the other suggestion there is much force, viz., that the adoption of the report did not necessarily include the passage of the resolution, which was what was needed to determine its action.

In our opinion, however, it would be giving too forced and strained a construction to the acts of the board if, contrary, to-what appears to have been the intent and purpose, it should be held that the adoption of the report did not include the passage-of the resolution, but that the latter should have been presented and directly voted upon, or that it should have been referred to-by the president in putting the motion. • We think that no doubt arises as to what was intended, and that no different result would be reached by sending the matter back to the board, to have them vote directly upon it, "except, possibly, litigation arising out of the-question of salary, and a renewal of a controversy between the board and the relator which seemingly had extended over some-years prior to her final removal. Taking the entire proceedings-together, we think that the presentation of the report embodying the resolution, and the adoption of the -report by a three-fourths vote, carried with it an adoption of the resolution itself,, which was sufficient evidence of the action of the board, and resulted in the removal of the relator. As to the constitutional question, by simple appointment to- employment an employe does not acquire a vested right to such employment unless so given by statute. We are of opinion, therefore, that the writ should be dismissed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Henry A. Gildersleeve, Trustee, App’lt, v. G. Harry Lester, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Supplementary proceedings—Third party order—Receiver.
    While an order for the examination of a third person may be made by a. judge outside of the district in which the debtor resides, yet all proceedings subsequent to the examination must be before the judge of the district in which the debtor resided.
    Appeal from order setting aside the appointment of a receiver in proceedings supplementary to execution.

      J. W. Boothby, for app’lt; L. C. Waehner, for resp’t.
   Per Curiam.

In Baldwin v. Perry, 25 Hun, 72, it was held that the proper practice, in cases where the judgment debtor resided in a district other than the one of the judge who granted the-order, was that all proceedings subsequent to the examination should be made returnable before a judge of the district in which the debtor resided. The same rule is applicable to proceedings, for the examination of a third person. While an order for the examination of a third person may be made by a judge outside of the district in which the debtor resides, yet all proceedings subsequent to the examination must be before the judge of the district in which the debtor resided. Under this authority the order setting aside the appointment of the receiver was right, and should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Follett, JJ., concur.


author: McGown, J. Ruger, Ch. J.,

text:
    Ludwig Ruser, Resp’t, v. The Union Distillery Co., App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Attachment—Conversion .
    A levy was made under an attachment more than six months after it was • granted. The attachment was afterwards set aside on motion on the ground that no summons had been served either personally or by publication within thirty days. But the goods levied upon were not returned. Held, that the attachment was void and all acts taken thereunder were a trespass against the rights of the defendant therein, and no demand for a return of the property was necessary before suit to recover for its conversion.
    Appeal from a judgment entered upon the verdict of a jury cm the 3rd day of November, 1892, in favor of the plaintiff for one thousand eight hundred and forty-three dollars and sixty-nine cents ($1,843.69), and from an order denying defendant’s motion for a new trial.

      James A. McCreery, for resp’t; Samuel E. Duffy (S. F. Kneeland, of counsel), for app’lt.
   McGown, J.

This action was brought to recover the value of -certain property, being the stock and entire business assets of a wholesale and retail wine and liquor store, which, was taken by the sheriff under a warrant of attachment against the property of the plaintiff’s assignor, at the suit of the defendant herein.

The property in question was owned by one Henry Buser, a brother of the plaintiff herein, said Henry Buser having carried on business as a dealer in wines and liquors at No. 824 Third avenue for a long time prior to the commencement of this action.

On or about the 20th day of April, 1891, an attachment was granted by the supreme court, in an action wherein the defendant herein was plaintiff against the said Henry Buser, and the goods in question were taken by the sheriff under said attachment on the 26th day of October, 1891.

The said Henry Buser, appearing specially for the purpose, applied to the court to vacate and set aside the warrant of attachment for irregularity and on the ground that the court was without jurisdiction of the action, in this, that personal service of the summons was not made on the said Henry Buser, or service thereof by publication commenced or service thereof made without the state, within thirty days after the granting of said warrant of attachment.

The said court thereafter, at a general term thereof, by order duly made and entered on or about the 26th day of October, 1891, granted said motion, and vacated and set aside said warrant of attachment.

None of the aforesaid property, taken and carried away by the defendant, was, at any time, returned to the said Henry Ruser.

Subsequently, and' before the commencement of this action,, which was commenced on or about the 16th day of January, 1892, viz.: on or about the 8th day of December, 1891, the said Henry Ruser assigned and transferred to Ludwig Ruser, the plaintiff herein, his claim or demand and cause of action against the defendant herein, for damages for the unlawful taking away of the property hereinbefore mentioned.

On or about the 30th day of June, 1891, in another action between the same parties, another warrant of attachment against, the said property of the said Henry Ruser was granted, and a levy made thereunder by the same sheriff, and a sale of said property made by the sheriff for $638.30, which amount was applied by said sheriff upon an execution founded upon the judgment, obtained in the latter action.

It is claimed on the part of the defendant that the goods were left in the hands of the sheriff, and that no demand was ever-made for the return thereof.

That the court obtained jurisdiction under the original warrant of attachment, which had been vacated by the court at general term, by reason of the failure to serve the summons therein within-thirty days after the issuing of the attachment, as required by the provisions of, § 638 of the Code of Civil Procedure.

Section 416 of the Code provides that “A civil action is commenced by-the service of a summons; but from the time of the granting of a provisional remetí}? the court acquires jurisdiction,, and has control of all the subsequent proceedings. Nevertheless,, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act to be done after the granting of the provisional remedy.”

The act required to be done, however, was by § 638 of the Code, either the service of the summons personally or by publication. This question, however, has been finally adjudicated upon in Blossom v. Estes, 84 N. Y., 617, wherein Danforth, J., says_: “ Thus an attachment can issue only in an action, * * *" there could be no action until after the actual service of a summons. * * * Here is a plain condition on which the vitality of the attachment depended, and it has not been complied with-it was good when issued, but remained so for thirty days only,. unless within that time one or the other of the two steps were taken. The plaintiffs, however, neither served the summons personally nor by publication. At the end of that time the statutory bar fell and with it the attachment. The jurisdiction which attached upon allowance of the warrant ceased, and as to that proceeding it was as if the statute had been repealed.”

In Fischer v. Langbein, 103 N. Y., 84; 2 St. Rep., 768, the same principle was sustained.

Ruger, Ch. J.,

says, at page 90: “Void process is such as the court has no power to award, or has not acquired jurisdiction to issue in the particular case, or which does not in some material respect comply in form with the legal requisites of such process, or which loses its'vitality in consequence of noncompliance with a condition subsequent, obedience to which is rendered essential” And at page 94: “ Where the jurisdiction of the court is made to depend upon the existence of some fact, of which there is an entire absence of proof, it has no authority to act in the premises, and if it, nevertheless, proceeds and entertains jurisdiction of the proceeding, all of its acts are void and afford no justification to the parties instituting them as against parties injuriously affected thereby.”

See, also, Day v. Bach, 87 N. Y., 56, wherein it was held at page 60 that:

“There is a great difference between erroneous process and irregular (that is to say,' void) process.
“ The first stands valid and good, unless it is reversed; the latter is an absolute nullity from the beginning.”

The attachment herein was, therefore, void, and all acts taken by the defendant thereunder were acts of trespass against the plaintiff’s rights and property; and the defendant having wrongfully obtained possession of plaintiff’s property, no demand before suit brought for the return -of the property taken by the sheriff under the attachment was necessary.

It was claimed herein on the part of the defendant that the plaintiff herein, an attorney at law, after the vacating of the said warrant of attachment, for the purpose of bringing an action, and for no other purpose, purchased and took an assignment from the said Henry Ruser of the cause of áction herein, and that such transfer was in violation of the provisions of § 73 of the Code, and, therefore, absolutely null and void.

The trial justice in his charge submitted this question to the jury, and instructed them that:

“ If, from the evidence in this case, you believe that he took -an assignment of this claim for the purpose and with the intention of bringing an action upon it, your verdict must be in favor of the defendant.”

The jury, from the verdict rendered by them, passed upon this question of fact in favor of the plaintiff. "

The question of the value of the property taken was also submitted to the jury, upon the evidence produced upon the trial, who passed upon the same, and found their verdict in favor of the plaintiff for the sum of one thousand six hundred and thirty-five dollars ($1,635) as the value thereof, after a fair and impartial " submission to them by the trial j ustice of all the issues of fact raised herein.

We do not find any error committed by the trial .justice in the rulings made by him, or any merits in the exceptions taken by defendant, and think that the verdict was fully justified by the evidence.

The judgment and order appealed from must, therefore, be affirmed, with costs to the respondent.

Van Wyck, J., conm


author: Fitzsimons, J.

text:
    James Lonergan, App’lt, v. George W. Martin et al., Resp’ts.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Negligence—Injury to horses by reckless driving.
    Plaintiff, who was driving behind defendant’s team, turned out to pass them, when defendant, without warning, suddenly turned his horses against plaintiff’s, forcing them against ah engine, and ran over the hoof of one of the horses, so injuring it that it died. Held, that this entitled plaintiff to a submission of the questions of negligence to the jury, and that a dismissal was error.
    Appeal from judgment dismissing the complaint.

      Christopher Fine, for app’lt; J. Stewart Ross, for resp’ts.
   Fitzsimons, J.

The plaintiff’s testimony shows that while driving along Hudson street between Duane and Eeade streets, just in the rear of the defendants’ team and truck, he turned out for the purpose of passing by and in front of defendant, having more than enough room to do so, and which he had a right to do.

Defendant then, without warning, and when plaintiff’s horses were at his front wheel, suddenly .turned his horses against plaintiff’s horses, forcing them against an engine which was standing near the curb, held them there as if in a vice, then driving his horses ahead, his hind wheel passed over the right hind hoof of plaintiff’s horse, so injuring him as to cause his death.

This testimony certainly entitled plaintiff to have the opinion of the jury as to whether or not defendant was negligent, and he free from contributory negligence, in the management of their respective teams.

It was error for the trial justice to dismiss the complaint.

Judgment must be'reversed and a new trial ordered, with costs to appellant to abide event.

Van Wyck, J., concurs.


text:
    Morris Kohn, Resp’t, v. Isaac Jacobs, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    1. Brokers—Commissions.
    Plaintiff was employed as broker to sell certain property and showed the same to defendant, another broker, who said he had a customer who might buy. and it was agreed that in case of sale the commissions should be divined. Defendant introduced a purchaser to the owner without plaintiff’s knowledge and a sale was made. Both parties claimed the commissions, and defendant was interpleaded in this action. Held, that defendant in" his efforts to secure a purchaser acted as plaintiff’s agent, and all his acts enured to plaintiff’s benefit and the commissions belonged to the latter.
    " 2. S>ME.
    While defendant had a claim against plaintiff for half the commissions, under their contract, for which he could bring action, yet he had no right to recover in this action because of the nature of the issues.
    Appeal from judgment in favor of plaintiff, entered on verdict.

      A. & L. Levy, for app’lt; David Leventritt, for resp’t.
   Fitzsimons, J.

The plaintiff and defendant are real estate brokers. The plaintiff, as broker, had for sale premises 14 Stanton street.

He showed said premises to defendant and requested him to purchase the same. Defendant refused, but said that he had a customer who might do so. It was then agreed that if such was done that the commissions should be divided.

Defendant did induce a customer to purchase the premises mentioned.

Such purchaser was introduced to the seller by defendant, and plaintiff even did not know of the intended purchaser until just about the time the contract of sale was signed.

He certainly did nothing to effect the sale beyond showing the premises to defendant, as before stated.

Plaintiff commenced an action against the owner of said premises for the commission due the broker who made the sale, claiming that he accomplished the sale.

Defendant did likewise make a like claim against the owner, who, desiring to avoid possibly the payment of both claims, had the present defendant interpleaded as defendant.

The jury evidently believed plaintiff’s version of the transaction in question and their finding of the facts is conclusive so far as we are concerned, the only question for us to determine is, does the evidence justify the verdict.

Plaintiff apparently was engaged by the owner of the premises mentioned, to procure a purchaser.

He could not do so, but defendant could and so promised in return for any services so rendered plaintiff agreed to pay him one half the commissions earned.

In his efforts to secure a purchaser defendant acted as and was the agent, servant or assistant of plaintiff, and all his acts were done as an agent of plaintiff and consequently enured to plaintiff’s benefit.

Therefore, when one of his, defendant’s, customers became the purchaser of said premises, the commissions earned because of such sale, although the sale was made by and due to the efforts of defendant exclusively, and was not contributed to by any act or deed of plaintiff’s, were due plaintiff and defendant had in turn a claim against plaintiff for one-half of the same, because of their contract to that effect for which he may bring action, but had no right to recover herein because of the nature of the issues raised by the pleadings.

Therefore the judgment rendered must be affirmed, with costs.

We find no error.

Van Wyok, J., concurs.


author: McGown, J.

text:
    Alfred Epstein, Resp’t, v. Charles Hodgetts et al., App’lts.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    1. Attorneys—Brokerage.
    The statute limiting the amount of brokerage in procuring the loan, or forbearance of money to one-half of one per cent has no application to an attorney seeking to recover compensation for his professional services.
    2. Same.
    In an action by an attorney for services in drawing articles of copartnership, making searches, endeavoring to procure a loan of money and consultations, the court refused to charge at defendants’ request that by statute no greater compensation than one-half of one per cent could be allowed for procuring a loan of money. Held, that even if such refusal was erroneous, defendants were not harmed thereby, as in view of the evidence in relation to the other items it was apparent that the verdict included less than that amount for procuring the loan.
    Appeal from a judgment entered upon the verdict of a jury, in favor of the plaintiff, on the 24th day of February, 1893, and from an order denying defendants’ motion for a new trial.

      Epstein Brothers, for resp’t; Johnson & Johnson, for app’lts.
   McGown, J.

The action was commenced by plaintiff to recover the sum of $150 for professional services rendered by the plaintiff, an attorney and counselor at law, to defendants,. in drawing articles of copartnership between the defendants; searching the records for chattel mortgages and other liens against No. 67 Warren street; attending at the last named place on various occasions, and in endeavoring to secure a loan of $6,000 and for various consultations.

The defendant Hodgetts in his answer admits that plaintiff on or about the 10th day of December, 1892, at the request of defendants, performed certain professional services as attorney for defendants as alleged in plaintiff’s complaint.

Denies that such services were worth the sum of $150 ; denies that no part of said sum has been paid admits, that plaintiff at defendants’ request drafted certain articles of Co-partnership, and alleges that the same were of the value and a-t the stipulated price of $20 and that said sum had been fully paid ; denies, that plaintiff rendered any other services for him, and avers that before the commencement of this action he has fully paid any and all indebtedness due by him to the plaintiff.

The defendant Ackron did not appear herein.

The plaintiff testified as to the services rendered by him, and as to the value thereof, $150.

The defendant Ackron testified, in behalf of the plaintiff, as to ' the services rendered by the plaintiff.

Max Moses, an attorney, also testified as to the value of plaintiff’s services.

On the part of the defendants, the defendant Hodgetts testified as to what services had been rendered by the plaintiff; and John McGrlover and James J. Brennen, also testified, on the part of the defendants, as to the value of the services rendered by the plaintiff.

It also appeared from the evidence of the witnesses Moses and McGrlover that one per cent, $60, was a fair charge for procuring a loan of $6,000. „

The trial justice at the close of the testimony, in his charge to the jury, submitted the issues fully, fairly and impartially to them, and at the close of his charge defendants’ attorney made the following request: “I ask your honor to charge the jury, that by the statute no greater compensation than one-half of one per cent can be allowed or recovered for procuring a loan . of money.”

By the court: “Do you mean in this case? ”

Defendants’ counsel: “Yes.”

By the court: “I decline so to charge. This is good law, but

does not apply to this case.”

Declined; exception.

The defendants’ attorneys, in their brief submitted, concede that the above exception raises the main point in issue herein, and cite 1 B. S. chap. 20, title 19, art. 1, § 1, which provides that “ § 1. Ho person shall directly or indiiectly take or receive more than fifty cents for brokerage\ soliciting or procuring the loan or forbearance of one hundred dollars for one year, etc.”

This statute was passed to limit the commission of brokers for procuring loans, and has no application to an attorney seeking to recover compensation for his professional services.

Title 19 is entitled “ Of brokerage, stock-jobbing and pawnbrokers.”

Article First “ Begulations concerning brokers.”

The plaintiff herein seeks to recover for legal services rendered by him as an attorney, not for commissions earned by him as a broker.

A similar question arose in Helms v„ Goodwill, 2 Hun, 410, where defendant sought to be credited with compensation for legal services rendered. -

Smith, J., in his opinion at page 415, says: “ And in view of the case taken by the learned judge, and in respect to the theory or ground upon which he put his decision, he erred, we think, also in refusing to find and decide that the defendant was entitled to be credited in this action, for his services in trying to sell lots, whatever such services were worth.”

Conceding, however, that the trial justice erred in refusing to charge as requested such refusal did not affect the defendant adversely, and did not affect the amount of damages, and defendant has not suffered any injury thereby, and consequently' such refusal was not error.

Plaintiff claimed $150.00 as the amount of all the services rendered by him, including his services in procuring the loan.

The jury rendered their verdict for $125.

The evidence of the plaintiff and of the defendant, Ackron, was that fifty dollars was agreed upon for drawing the articles of co-partnership ; while the defendant Hodgetts testified that “ there was no charge mentioned for the agreement.”

The evidence of the plaintiff to the effect that it took him six hours to make the necessary searches, is uncontradicted; and the evidence of the plaintiff’s witness, Moses, and of defendant’s witness, McGrlover, that five dollars an hour would be a reasonable charge, making thirty dollars in all, is also uncontradicted; while the evidence of defendants’ witness,McG-lover,that “twenty-five doljars' was a fair charge for a lawyer’s day,” is also uncontradicted, and plaintiff testified that he attended on two .different days at 67 Warren street; the uncontradicted evidence thus showing that the plaintiff was entitled to the sum of $105 for his services for drawing the agreement, searching, and attending at 67 Warren street, independent of his compensation for procuring the loan.'

The jury thus, in their verdict for '$125‘, evidently allowed plaintiff only the sum of twenty dollars, or 'one-third of one per cent, for his services in procuring that loan.

The jury passed upon the issues of fact submitted upon the evidence herein, and we think the evidence justified the verdict rendered by them.

There are no merits in the exceptions taken by defendants’ attorneys to the ruling of the trial justice herein, and the judgment and order appealed from must be affirmed; with costs to the respondent.

Van' Wyok and Fitzsihons, JJ., concur.


author: Barnard, P. J.

text:
    The Kings County Bank, App’lt, v. John Courtney, Sheriff, et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Execution—Preference—Secret partnership.
    Plaintiff advised one of its debtors to form a partnership with her daughter under her own name, which was done, but the partnership' kept secret, so that others who sold to her had no knowledge thereof. Held, that the partnership was a dormant one, and that the fact of its existence did not give plaintiff a precedence over other creditors who obtained a levy by execution before it commenced proceedings by attachment which resulted in judgment against the mother and daughter as partners.
    2. Bill op sale—Given as security must be piled.
    A bill of sale given as security for loans made and to be made must be filed as a chattel mortgage ; otherwise it is void as against creditors and subsequent purchasers in good faith.
    3. Execution—Dormant.
    After the issue of execution an agreement was made between the debtor and creditor that on payment of a certain amount the execution should be withdrawn. Payment of the sheriff’s fees on the basis of half the amount specified having bqen made, the creditor’s attorneys told him to hold the levy until otherwise instructed. Held, that such direction was not a part of the settlement and was unjust to the debtor, and the execution was dormant.
    Appeal by plaintiff and defendants Phelps, Dodge & Oo. from judgment rendered in favor of defendants Thomas Wildes and the Tremont National Bank of Boston.
    Action to determine the rights of the parties as creditors of Gulia Branders to a certain fund in the hands of the sheriff.

      Norman S. Dike, for pl’ff., app’lt; Edmund Coffin, Jr., for Phelps, Dodge & Co., app’lts; W. J. Courtney, for the sheriff; John P. Hudson, for Thomas Wildes, resp’t; Henry R. Wills, for Tremont Nat. Bk., resp't.
   Barnard, P. J.

The plaintiff has no rights above the other claimants by reason of a partnership between Gulia Branders and her daughter Maria. The mother was carrying- on a business, manufacturing lead pipe, under the name of the “ Brooklyn Lead Pipe and Trip Works.” The ostensible name in which the business was carried on was “ Gk Branders, proprietor.” On the 2nd of June, 1890, Giulia Branders made a bill of sale to the plaintiff of certain of the personal property of the business. On the 7th of August, 1891, Grulia Branders entered into a partnership agreement for three years with her daughter, Maria. The agreement provided that the business should be conducted in the name of the mother as proprietor, and that the account in the bank should be kept in the mother’s name; but with a right on the part of„ the daughter to sign her mother’s name to checks with the addition of the initials of her own name. The partnership agreement was not publicly known. It was known to the plaintiff, bank, but no notice was given by the bank of the partnership between mother and daughter. It was proven also that the bank requested that the partnership be formed, which was well enough, but the keeping it secret so as to obtain an advantage over other creditors was not well done. The partnership was at least a dormant one under North v. Bloss, 30 N. Y., 374. It was not necessary for persons who sold the apparent owner, Mrs. Branders, to make her daughter a defendant with her. The bill of sale was properly found of no force as against judgment creditors. The form of the instrument is subject to the real purpose of the paper. This is found to be that the bill of sale was given as security for the loans then at its date made by the plaintiff and to be made thereafter. Chapter 279, Laws of 1833, applies to it, and it should have been filed as directed by that statute, otherwise it was void as against creditors and subsequent purchasers in good faith.

The statute of frauds against bills of sale of personal property by a vendor of goods who does not give immediate possession applies. The'bill of sale is presumed void, and there is an entire absence of proof of good faith that the paper was made in good faith and without an intent to defraud creditors. As the proof is so strong that the bill of sale was not intended as an absolute transfer of title, but was by way of mortgage, this question need not be discussed. With the partnership and the bill of 'sale in operation, the plaintiff is not entitled to precedence over these creditors, who get their levy on the property by means of execution delivered before the plaintiff commenced the proceedings by attachment which finally resulted in judgment against the mother and daughter as partners.

Phelps, Dodge & Co. issued their execution and made levy on the 17th of February, 1892.

The Tremont Bank on February 19, 1892, which subsequently matured in a judgment. The trial court has found that the execution of Phelps, Dodge & Co. became dormant and lost its precedence thereby. The case shows that after the Phelps, Dodge & Co. execution was levied, Mrs. Branders applied to that firm to take $2,000 on account and withdraw the sheriff from her works. Aii arrangement was made that $2,000 was to be paid and the execution and levy withdrawn and .released. Notice was given to the sheriff by Phelps, Dodge & Co.’s attorney on the 19th of February, 1892. The agent of Mrs. Branders who carried the letter to the sheriff gave a check to him for his fees which was unpaid. On the 20th of February, the sheriff wrote Phelps, Dodge & Co. that he had received his fees on the basis of $1,000 payment and asking for a continuation of the execution. On the 23d of February, 1892, Phelps, Dodge & Co. wrote the sheriff to hold the levy until instructed to the contrary. There was no proof of fraud beyond a general statement of her responsibility. Notes were to be given for the balance of the debt, which presumably were given. The subsequent direction to hold the levy was not a part of the settlement and was unjust as to the judgment debtor.

The execution was properly found to be dormant, and the judg ment should be affirmed, with costs.

Dykmaít, J., concurs; Pratt, J., not sitting.


author: Pratt, J.

text:
    Mary H. Oakley, App’lt, v. George W. Oakley et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Í. Dower—Conveyance prior to marriaqe.
    Defendants’ father conveyed to them certain property a short time prior to his marriage with plaintiff, and thereafter made a wdl giving to her a provision in lieu of dower, which she has accepted. In an action to set aside the conveyance so far as it barred plaintiff’s dower therein, the court found that there was no fraud in the transaction. Held, that there was no foundation for the suit at law or iu equity.

      2. Pleading—Admissions in answer.
    An admission in an answer must he taken with any explanation or qualification contained therein.
    Appeal from judgment dismissing the complaint.
    Action to set aside a deed made by one Whitson Oakley, now deceased, to defendants, his sons by a former marriage, of a livery stable, made a few days before his marriage to plaintiff, on the ground of fraud, so far as it bars plaintiff’s dower in said real estate.
    The answer admitted the making of the deed to defendants, but alleged that the property had been bought by their father to start them in business, and was always intended to be their property; denied any fraud, and set up the will of their father making provision for plaintiff in lieu of dower, which she had accepted and given a receipt therefor. The court found that there was no proof of fraud, and dismissed the complaint.

      Reuben H. Underhill, for app’lt; Benj. G. Hitchings, for resp’ts.
   Pratt, J.

There is no foundation for this suit in law or equity. It is plain that if the deceased Oakley made a valid conveyance of this property before marriage with the plaintiff, she is not entitled to dower, and equally plain that if he was seized of the property at the time of his death, she is not entitled to dower for the reason that she has accepted provisions in his will made in lieu of dower.

Perhaps this is all that is necessary to be said, but it may not be amiss to add that it did not appear, and the court has so found, that assuming that Whitson Oakley, the deceased, at one time owned the property and conveyed it to the defendants, there was any fraud or intent to defraud in the transaction. All the proof upon the trial was contained in the pleadings, and it is too well settled to require comment that if an admission in an answer is relied upon, it must be taken with any explanation or qualification contained therein.

The answer, taken as a whole, rebutted any inference of fraud on the part of deceased, and the court has so found.

In addition, the court has found that the giving of the deed by the deceased was a perfectly straightforward, legitimate transaction, ‘‘free from fraud against the plaintiff, and in pursuance of his duty and obligation to them.”

The court further found that the provision in the will was intended to be in lieu of dower, and that plaintiff accepted it with a full knowledge of the provisions in the will.

• There is not a scintilla of merit in the suit, and the judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Albert G. Howe, Resp’t, v. Edward M. Oldham, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Malicious prosecution—Assault.
    In an action for malicious prosecution there was evidence tending to show that plaintiff was commissioner of highways; that defendant drew a wagon into a brook to prevent plaintiff from building a bridge across it, and upon plaintiff attempting to remove it defendant threw him into the stream and subsequently struck him. Defendant was arrested for assault and pleaded guilty, but afterwards procured plaintiff’s arrest for an alleged assault upon himself. Held, that assuming these facts, malice was easily to be inferred, and a verdict for plaintiff would not be disturbed.
    S. Same—Advice of counsel.
    Advice of counsel could not affect even the amount of damages in such case unless the advice was based on the facts truly stated to the counsel.
    Appeal from-judgment in favor of plaintiff, entered upon a verdict in an action for malicious prosecution.

      William, D. Guthrie, Grant B. Taylor and George C. Austin, for app’lt; William D. Dickey, for resp’t.
   Barnard, P. J.

The defendant procured the arrest of the plaintiff for an assault in the third degree, committed by the plaintiff upon him. The plaintiff was acquitted. Hpon the trial it appeared that the plaintiff was a commissioner of highways of the town of Woodbury. On the 23d of May, 1892, he was working upon a road claimed to be a public highway. The defendant, for the purpose of obstructing the work, had drawn a wagon in the brook to prevent the building of a bridge over the brook. The defendant did this under a-claim that the road was nota public highway. The plaintiff put his hands on the wagon to draw it out of the way and the defendant committed an assault pn him. Plaintiff made a complaint against defendant for the assault and battery on the 24th of May, 1892. Defendant was arrested thereon and on the 2d day of June, 1892, pleaded guilty to the charge. The defendant made the complaint and procured the arrest of plaintiff on' the 2d of June, 1892. The defendant gave evidence tending to show that an assault was committed on him. If there was no assault committed then a case is made out to go to a jury, and if the jury find no assault committed, then defendant has made a false charge and thereby caused plaintiff’s arrest The jury were told that if, from the evidence, the defendant, as a reasonable man, had probable cause for the complaint, the action failed. The jury were told that if the arrest of plaintiff was made without sufficient cause, they might infer malice, and in such case give damages for the injury. Under the finding of the jury the judgment should be affirmed.

It is established by the verdict upon positive and clear proof that the defendant obstructed the plaintiff, a public officer, in his duties to the public. That when the plaintiff attempted to remove the obstruction, the defendant threw him into the stream and subsequently struck him. That the defendant falsely asserted that the plaintiff committed an assault upon him and caused the plaintiff’s arrest and trial. Assuming these facts, the malice of the defendant is easily and necessarily inferred. Heyne v. Blair, 62 N. Y., 19 ; English v. Major, 36 St. Rep., 69.

The question whether the defendant made the charge “ of his own volition ” raised no question of advice of counsel. He had admitted in his testimony that he made the complaint at the request of his employer, and so far as that affected the question of damages he had the evidence. The sole question presented to the jury was whether the complaint of defendant against plaintiff was false or not, and no advice of counsel could affect even the question of damages unless the advice was based on the facts truly stated to the counsel. The charge was not excepted to in respect to so far as it related to the assault. It is too late on appeal under the circumstances of this case to claim error. The •jury were told what an assault was, but they were also told that defendant could act on appearances, which is all that appellant now urges for error.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    The People ex rel. Thomas F. McGrath, Resp’t, v. The Board of Supervisors of Westchester Co., App’lt. The People ex rel. Jeremiah Clancy, Resp’t, v. The Board of Supervisors of Westchester Co., App’lt. The People ex rel. William H. McPherson, Resp’t, v. The Board of Supervisors of Westchester Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Constitutional law—Supebvisobs.
    Chapter 54, Laws 1892, dividing the city of Yonkers into wards and authorizing the electors of each ward to elect a supervisor, is not violative of article 3, § 18 of the constitution. That provision was designed to limit the legislative power in the manner of electing supervisors by the vote of the electors, and not intended to deprive the legislature of the power to equalize representation by giving a supervisor too a ward of a city.
    Appeals from orders of special term awarding peremptory writs of mandamus compelling the board of supervisors to recognize the respondents as supervisors of three wards in the city of Yonkers.
    The relators below, the respondents here, seek recognition as members of the board of supervisors of the county of Westchester; the relator, McGrath, as supervisor of the third ward of the city of Yonkers; the relator, Clancy, as supervisor of the fourth ward of the city of Yonkers, and the relator, McPherson, as supervisor of the fifth ward of the city of Yonkers.
    The conceded facts in the case are, that the city of Yonkers was incorporated originally in 1872, and its charter was re-enacted in 1881 by chapter 184 of the Laws of that year. The original and the new charter of 1881 gave the city but one supervisor. In 1892 the charter was amended by chapter 54, and the law applicable to this proceeding is § 4 of chapter 54 of the Laws of 1892, and reads as follows:
    “ The elective officers of the city shall be a mayor, a city judge, four justices of the peace, who shall be elected by the electors of the city, and an alderman and a supervisor for each ward, who-shall be residents of and elected by the electors of their respective wards."
    Under this law, the three political parties in thecity of Yonkers, republican, democrat and prohibition, nominated candidates for supervisor for the various wards in the city, and on March 29th an election was held, and the three relators were elected supervisors of their respective wards, and the result of the election was declared by the common council of the city, and certificates of election awarded to them. After taking the oath of office they presented themselves to the board of supervisors, and were refused admission, the supervisors deciding that the law under which they were incorporated was unconstitutional, and recognized as supervisor Jacob Bead, who had been elected at the town election in 1891, as the supervisor for the entire city. These proceedings were then instituted, and the orders directing a peremptory writ of mandamus issued, from which orders these appeals are taken.

      W H. Robertson and Wm. Romer, for app’lt; Joseph F. Daly, for resp’ts.
   Barnard, P. J.

By chapter 866, Laws of 1872, the legislature incorporated the city of Yonkers. By chapter 184, Laws of 1881, the charter was amended and passed as an entirety. Under each of these laws the city had but one supervisor. By, chapter 54, Laws of 1892, the legislature enacted that each ward of the city should have a supervisor. The relator was elected under this law, and the supervisors refused to receive him. The constitution provides that the legislature shall have no power to pass a private or local bill “'providing for the election of the members of the board of supervisors.” A supervisor is not one of the officers to be elected by the people,as provided in the constitution. Such officer could be elected by the towns and villages or of some division thereof, or appointed, as the legislature should direct. The general rule is that supervisors are elected by the people; and while additional supervisors have been provided for in cities, it is equally a general rule that they are elected by the wards or districts created therein by the legislature. The constitutional provision inserted in 1874 was designed to limit tlie legislative power in the manner of electing supervisors by the vote of the electors, and not intended to deprive the legislature of the power to equalize representation by giving a supervisor to a ward of a city. The legistors have acted on this view in numerous cases. The charter of cities has been frequently amended by creating or adding wards to cities and providing for the election of supervisors therein.

The charter- providing for one supervisor could be amended after the constitutional article was inserted without violating the same. Reed v. Schmit, 39 Hun, 223.

The judgment should be affirmed with costs.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    Daniel McCampbell, Pl’ff., v. The Cunard Steamship Co., Def’t.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Master and servant—Negligence—Insufficient appliances.
    Plaintiff, a longshoreman, was emnloyed to remove drums of soda hy means of a four wheel, flat top truck down an inclined skid from one of defendant’s vessels. While so doing one of the drums slipped, and plaintiff, to prevent its falling upon him, ran down the incline and had reached the dock, when the wheels of-the truck caught in an opening between the skid and the mouthpiece; he was thrown down and the drums fell upon him. The mouthpiece, if properly fastened to the skid, should have followed its motion and left no opening. Held, that this was the fault of the superior or his alter eyo, and not a danger which the plaintiff assumed.
    (Barnard, P. J., dissents.)
    Exceptions ordered heard at general term in the first instance after dismissal of complaint.
    Action to recover for injuries alleged to have been caused by defendant’s negligence. Plaintiff was a longshoreman, and was employed to remove drums of soda from one of defendant’s vessels. For this purpose he was furnished with a four wheel, flat top truck, upon which to bring the drums down an inclined skid from the deck of the vessel. No appliance to hold the drums on the truck was supplied except pieces of refuse wood. The slcid was smooth and had mouth-pieces at each end, which if properly fastened followed its motions. The ship was rigged for unloading by the sailors, and the longshoremen had nothing to do with it. As plaintiff was drawing a load down he discovered that the batten was slipping and the drums about to roll upon him, whereupon he started to run to the dock, and had about reached it when the wheels of the truck caught in an opening between the skid and. the mouthpiece, which was not fastened, and plaintiff was thrown down and the drums rolled upon his legs, injuring them.

      George William Hart, for pl’ff; Frank D. Sturges, for deft.
   Pratt, J.

It is clear that the truck was not a proper vehicle on which to move the drums down an inclined plane. And it is certain that the skid was placed at a dangerously steep angle.

Whether the plaintiff could recover on these grounds may be' doubtful, as it might be said that the danger was obvious and he took the risk. To a certain extent a laborer may rely on the presumed superior knowledge of his employer, and perhaps it was a fair question for the jury whether he might do so in this instance. We need not pass upon these questions, as we think another point is presented which requires a reversal.

Both witnesses testify that had the “ mouthpiece ” been properly attached to the skid so as to follow its motion the plaintiff could have escaped. The gap of some inches left between them is not shown to have existed when the plaintiff went to the work. That would vary from moment to moment as the vessel rolled. That was a danger we cannot say plaintiff accepted.

No such gap should have been permitted, and that it existed was the fault of the superior or his alter ego.

The stevedores did not rig the vessel for the work, and the Superintendent was not a fellow servant with the plaintiff.

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

Bykman, J., concurs; Barnard, P. J., dissents.


author: Vak Wyck, J.

text:
    Albertina Phillips, Resp’t, v. Isaac Ehrmann, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 26, 1893.)

    Bill of particulars—Denial of, when proper.
    A motion for a bill of particulars of the articles alleged to have been damaged, and of the particular damage to each, is properly denied where it appears that such articles have been exhibited to the defendant and to appraisers appointed by the parties, and that an appraisal was made in defendant’s presence.
    Appeal from order made by Chief Judge Clement, denying a motion made on the part of the defendant for a bill of particulars -of the plaintiff’s alleged claim for damages.
    The plaintiff’s complaint charges that she hired rooms from the defendant, and that notwithstanding his promise to make certain repairs to the roof, it was allowed to remain in a leaky condition; in consequence of its condition rain leaked in and entered the plaintiff’s apartments, by reason of which the plaintiff’s “furniture. carpets, oilcloth, mattings, rugs, table cover, lamps and shades, crockery, stoves, toilet sets, silverware, clothes, linen and sundry articles of household furniture were seriously damaged or ruined.” Plaintiff was compelled to vacate her premises * * * and seek other apartments for the remainder of the month of February, 1893, owing to the condition of the premises caused by the leakage of the roof. To her damage, $500.
    The answer denies the damage, and in his affidavit the defendant avers that he has no knowledge of the alleged damage, and asks for an order that the plaintiff deliver a bill of particulars showing the amount of damage to each article, etc.
    The plaintiff submitted an affidavit showing that a Mr. Battermann was defendant’s appraiser and that the damaged articles were shown to him and to the defendant,' and that by reason of the premises the defendant received full knowledge of the extent of the injuries sustained by the plaintiff to her property.

      Henry C. Botty, for resp’t; Fernando Solinger, for app’lt.
   Vak Wyck, J.

This is an 'appeal from an order denying a motion for a bill of particulars. The action is brought to recover damages for injuries done through defendant’s culpable fault to plaintiff’s “ furniture, carpets, oilcloths, matting, rugs, table cover, lamps and shades, crockery, stoves, toilet sets, silverware, clothing, linen and sundry articles of household goods,’’ on February 22, 1893, at 20 Graham avenue. Defendant, in asking, for a bill of particulars of the articles injured and the damage to each, alleged generally that he was ignorant of the same. On the hearing plaintiff swore that on February 22, 1893, she called defendant’s attention to the extent of the damage done, and exhibited to him all the damaged articles, and that, on the next day, she again exhibited the articles to,defendant and-Mr. Battermann, his adpraiser, and to Mr. Cohen, her appraiser, and .that these two appraisers duly examined the damaged articles and appraised the same in the presence of defendant and herself. Defendant did not deny this explicit statement of plaintiff under oath, showing conclusively that he personally has examined the articles and had them examined arid appraised by a person selected by himself, and it is hard to imagine what more information a bill of particulars would afford him. There is no valid reason for interfering with the exercise of what seems to us to have been a sound discretion in the denial of the application.

Order must be affirmed, with costs.

Osborke, J., concurs.


author: Osborne, J.

text:
    John Norris, Resp’t, v. The Brooklyn City Railroad Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 26, 1893.)

    Negligence—Street railroads—Overcrowding.
    Plaintiff while a passenger on one of defendant’s cars gave up his seat to a lady and stood with one foot in the car and the other on the platform which was crowded with passengers, some of whom stood on the guard rail outside. The platform • gave way and threw plaintiff into the-street, injuring him. It appeared that the car had been in use twelve, years; that there was an unusual number of passengers, and that the conductor did not use proper efforts to' prevent them from getting on. Held, that the court properly refused to dismiss the complaint, and left the question of. defendant’s negligence to the jury.
    Appeal from judgment in favor of plaintiff, entered on & verdict, and from order denying motion for a new trial on the minutes.

      M. L. Towns, for resp’t; Morris & Whitehouse, for app’lt.
   Osborne, J.

On the evening of January 25, 1892, plaintiff was' a passenger on a car of the Myrtle avenue branch of defendant’s lines. He boarded the car near Fulton Ferry, and after riding some distance surrendered his seat to a female passenger, and took his stand in the rear doorway, with his shoulder leaning against the door, one foot in the car and the other on the platform. As the car moved along it became greatly crowded, so that there were upwards of twenty-five passengers on the rear platform, and some five or six people, including the conductor, stood on the guard rail outside of the rear dashboard. When on Myrtle avenue, near Duffield street, the rear platform broke and went to the ground, and by reason thereof plaintiff was violently thrown to the street and sustained serious and permanent injuries. Plaintiff brought this action to recover damages for said injuries, he claiming that they were caused by the negligence of the defendant in that the platform was weak and insecure, and that defendant permitted said platform to become overcrowded and unable to sustain the weight imposed upon it. Plaintiff had a verdict, and from the judgment entered thereon and the order denying a motion for a new trial, this appeal is taken.

The one point presented on this appeal by the learned counsel for the appellant is on the exception taken to the denial of the motion to dismiss the complaint, and the ground urged is that plaintiff failed to establish negligence on the part of the defendant.

It appeared on the trial that the car in question was one of a large number built by the defendant, and that it had been in use over twelve years; it also appeared that on the night in question there was an unusually large number of persons seeking passage on defendant’s cars, owing to the Elevated Railway Company having temporarily stopped the running of its cars.

The case was submitted to the jury by the learned trial judge, and they were left to decide whether the platform was insecure, > and defendant knew it to be insecure, or could have known it by the exercise of proper care, and also as to whether defendant was negligent in its conductor permitting'' so large a number of persons to ride upon the platform.

We think that-the learned trial judge pursued the proper course in submitting this case to the jury. It plainly appeared that the defendant undertook to carry more passengers on the car in question than could sit and stand within the car, and that both platforms and steps were filled to their utmost capacity; no proper effort seems to have been made by the conductor to prevent this excess of passengers from getting on the car, while it appears that he. was diligent in collecting fares from every one on the car. In the case of Lehr v. Steinway & H. P. R. R. Co., 118 N. Y., 556; 30 St. Rep., 1, the plaintiff was injured by being pushed off a crowded platform, and, in that case, the court said: “The court would not have been justified in non-suiting the plaintiff and holding, as a matter of law, that the exercise of a reasonable foresight would not have led the defendant to anticipate that overcrowding this car and its platforms might render accidents like the one which befell the plaintiff probable. Whether the defendant was negligent in carrying so many passengers was a question of fact for the jury.”

We think that the law, as expounded by the court of appeals in the case just cited, made it the duty of the learned trial judge to submit this case to the jury, and that the motion to dismiss the complaint was properly denied.

The judgment and order appealed from should be affirmed, with costs.

Yan Wyok, J., concurs.