author: Van Brunt, P. J.:

text:
    EMANUEL BERGMAN, Respondent, v. SOLOMON B. NOBLE and Others, Appellants.

      Execution against the person of a judgment debtor — void unless am execution against Ms property has been issued — Code of Civil Procedure, sees. 1372 and 1489 — evidence.

    Upon the trial of this action, brought to recover damages for false imprisonment it appeared that on September 2, 1885, the appellants, as the attorneys for their co-defendants, entered a judgment in a Justice’s Court in Queens county against the plaintiff, a resident of the county of New York, for $112.50 damages for injuries to personal property, which judgment was thereafter docketed in the office of the clerk of Queens county. An execution against the judgment debtor’s property was thereafter issued to the sheriff of Queens county, which was returned unsatisfied, but the judgment was never docketed in the office of the clerk of New York county, nor was an execution against the property of the debtor ever issued to or returned from that county. On January 16, 1886, the appellants issued an execution against the person of the plaintiff to the sheriff of Queens county, under which he was arrested.

      Held, that as the judgment, although originally recovered in a Justice’s Court, had been filed and docketed in the office of the county clerk, it became a judgment of the County Court and should have been enforced accordingly.
    That as no execution had been issued against the property of the debtor to the county in which he resided, as required by sections 1372 and 1489 of the Code of Civil Procedure, the execution issued against his person was void and afforded no justification to the parties issuing the same.

      Fischer v. Langbein (103 N. Y., 84) followed; Marks v. Townsend (97 id., 590) distinguished.

      Upon, the trial the plaintiff was asked and allowed, against the defendants’ objections, to state that before his arrest he did not know that any judgment had been recovered against him.

      Held, that as this evidence tended to aggravate the damages, the court erred in excluding evidence offered by the defendants to show that the judgment had been obtained after a trial.
    Appeal from a judgment in favor of tbe plaintiff entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of the justice before whom tbe action was. tried.

      George W. Stephens, for the appellants.

      Theodore Connolly, for the respondent.
   Van Brunt, P. J.:

Tbe principal question presented upon tbis apjDeal is was tbe execution under wbicb tbe plaintiff was arrested a void or simply a voidable process. If tbe execution was void it afforded no protection to a party acting under it, and it was not necessary to set it aside before bringing action; but if tbe writ was irregular only, and not absolutely void, no action lies until it bas been set aside; but wben set aside it ceases to be a protection for acts done under it while in force. (Day v. Bach, 87 N. Y., 56.)

Tbe facts out of wbicb tbe above question arose seem to be about as follows : On September 2, 1885, tbe appellants, as tbe attorneys for tbeir co-defendants, entered a judgment in a Justice’s Court in Queens county against tbe plaintiff for $112.50 damages, for injuries to personal property. At that time, and ever thereafter, tbe judgment-debtor (plaintiff herein) was a resident of tbe county of New Y ork. Tbe judgment was docketed in tbe office of tbe clerk of Queens county, and an execution against tbe judgment debtor’s property was thereupon issued to tbe sheriff of Queens county, wbicb was returned unsatisfied. Tbe judgment was never docketed in tbe office of tbe clerk of New York county. No execution against tbe property of tbe judgment' debtor (plaintiff herein) bas ever been issued to or returned from tbe county of New York. On January 16, 1886, the appellants issued an execution against the person of tbe plaintiff to tbe sheriff of Queens county, notwithstanding tbe fact that no execution against bis property had ever been issued to the county of New York, the county in wbicb be resided and resides.

Under sucb execution, the plaintiff was arrested by the sheriff of Queens county on March 9,1886= He was taken from his business in Eavenswood by a deputy, in whose company he was marched to Long Island City, where he was detained upwards of three hours, and then secured his liberty by depositing with the sheriff the sum of $130 as indemnity to the sheriff for permitting his escape. Thereupon plaintiff brought this action, which resulted in a verdict for $1,000 damages. The provisions of the Code regulating the issuance of executions against the person seem to be sections 1372 and 1489; which sections are as follows :

“See. 1372. An execution against the person must substantially require the sheriff to arrest the judgment debtor, and commit him to the jail of the county, until he pays the judgment, or is discharged according to law. Except where it may be issued, without the previous issuing and return of an execution against property, it must recite the issuing and return of such an execution specifying the county to which it was issued.”
“Sec. 1489. Unless the judgment debtor is actually confined» without having been admitted to the liberties of the jail, by virtue of ,an excution against his person, issued in another action, or of an order of arrest or a surrender by his bail, in the same action, an execution against his person cannot be issued until an execution against his property has been returned wholly or partially unsatisfied. If he is a resident of the State, the execution against his property must have been issued to the county where he resides.”

The provisions of section 1489 seem to be explicit as to the form of procedure which must be adopted before the extreme remedy of imprisonment can be resorted to. All the possibilities of collecting the judgment out of the property of the judgment debtor must be exhausted before resort can be had to this extreme action; but in order that parties should in a proper case be in no danger because they have recourse to this extreme remedy, the Code has distinctly provided what shall be evidence of the fact that the remedy against the judgment debtor’s property has been exhausted, viz., the issuance and return of an execution against the judgment debtor’s, property to the county where he resides. The provision in section 1372 as to the form of an execution, only serves to accentuate this view as it is provided that the execution against the person must recite the issuing and return of an execution against the property, specifying the county to which it was issued. We have, therefore, the explicit direction of the Code as to what is a condition precedent to the right to issue an execution against the person, and where such condition precedent does not exist, there is no jurisdiction to issue the process, and it is consequently void.

In the case of Fischer v. Langbein, (103 N. Y., 84) the distinction between void and voidable process is considered, and the distinction is thus stated:

“ 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 requisities of such process, or which loses its vitality in consequence of non-compliance with a condition subsequent, obedience to which is rendered essential. Irregular process is such as a court has general jurisdiction to issue, but which is unauthorized in the particular ease by reason of the existence or non-existence of some fact- or circumstance rendering it improper in such a case. In all cases Where a court has acquired jurisdiction in an action or proceeding, its order made or judgment rendered therein, is valid and enforceable and affords protection to all persons acting under it, although it may be afterwards set aside or reversed as erroneous. (Simpson v. Hornbeck, 3 Lans., 53.)
“ Errors committed by a court upom the hearing of an action or proceeding which it is authorized to hear, but not affecting any jurisdictional fact, do not invalidate its orders or authorize a party to treat them as void, but can be taken advantage of only by appeal or motion in the original action.” * * *
“The rule to be deduced from these authorities seems to be .that when a court is called upon to adjudicate upon doubtful questions of law or determine as to inferences to be drawn from circumstances, reasonably susceptible of different interpretations or meanings, and calling for the exercise of the judicial functions in their determination, its decision thereon does not rfender an order or process based upon it, although afterward vacated or set aside as erroneous, void, or subject tbe party procuring it to an action for damages thereby inflicted. ’Where tbe jurisdiction of tbe court is made to depend upon tbe 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, ail of its acts are void and afford no justification to the parties instituting them as against parties injuriously affected thereby. But if the facts presented to the court call upon it for the exercise of judgment and reason upon evidence which might in its consideration affect different minds differently, a judicial question is presented which, however decided, does not render either, party or the court making it, liable for the consequence of its action.”

Applying the above principles to the case at bar, jurisdiction to issue execution against the person depending upon the fact that a proper execution against the property shall have first been issued, and there being an entire absence of proof of this fact, the execution issued against the person was void, and afforded no justification to the parties issuing the same as against a “party injuriously affected thereby.

It is true that in the case of Marks v. Townsend, (97 N. Y., 590) Justice Earl, in his opinion, would seem to indicate that this omission was' a mere irregularity before tbe Code; but under the stringent and well-defined rules regulating the issuance of process of this character, the omission complained of in the case at bar amounts to much more than an irregularity.

The claim that section 1489 of the Code above referred to has no application to the execution issued mentioned in the case at bar, because such section does not apply to a judgment recovered in a Justice’s Court, might be well founded if the execution under which the plaintiff was arrested had been issued out of a Justice’s Court; but that execution was issued out of the County Court upon a judgment of the County Court, and the rules applicable to the issuance of such execution must determine the validity of the process. We say that the execution was issued upon a judgment of the County Court, because, although the judgment was originally recovered in a Justice’s Court by the filing of the transcript in the office of the cleric of the county, it became a judgment of the County Court and must be enforced accordingly. (Code Civil Pro., § 3017.) If tbe judgment is to be deemed, because of tbe filing of tbe transcript, a judgment of tbe County Court and is to be enforced accordingly, it became subject to all tbe rules applicable to tbe enforcement of judgments in County Courts.

There, however, seems to be an error in tbe admission of evidence, which is fatal. The plaintiff was asked: “ Before your arrest, did you know of this judgment against you ? ” This question was objected to, but the objection was overruled and the witness answered: “No, sir; I did not know there was a judgment against me.” This evidence was offered, undoubtedly, to aggravate the damage alleged to have been suffered by the plaintiff because of his arrest. It certainly had that tendency. The inference which would naturally be drawn from that answer was that the plaintiff had received no notice whatever of the claim made, which resulted In the judgment, and that he had been arrested, having no reason to suspect that any proceedings were pending against him. To meet this evidence and to rebut the inferences necessarily arising therefrom, the defendants offered to show that the judgment had been obtained after a trial, which evidence was excluded and exceptions taken. This was error. Proof of this kind would have completely met much that necessarily suggested itself from the evidence of the plaintiff that he did not know that there was a judgment against him. In fact, it might, with force, be urged that this evidence would have directly contradicted the testimony of the plaintiff as to his ignorance of the existence of the judgment.

We think, especially in view of the magnitude of the verdict, that this evidence was not only calculated to, but did harm the defendants in exciting a prejudice which should and probably would not have existed, had the evidence that, although the judgment may have been actually entered without the plaintiff’s knowledge, he knew of the suit and of the trial thereof been laid before the jury. For this error, we think that the judgment must be reversed and a new trial ordered, with costs to appellants to abide event.

Daniels and Bartlett, JJ., concurred.

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


source: Caselaw Access Project

license: Public Domain

text:
    CHARLES H. DWINELLE, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Railroad company— when not liable for the acts of a porter employed by a sleeping-ear company.

    Tile plaintiff having purchased of the defendant railroad a ticket, and from a porter in charge of a drawing-room car a section therein, for a continuous passage from Geneva to New York, went to bed after having given both tickets to the porter at the-latter’s direction. On awakening in the morning he found that the car was standing on a side track at Utica, having been stopped there on account of a washout. On the afternoon of that day, after the ticket purchased from the defendant had been returned to the plaintiff, the porter accompanied him and his wife, carrying their baggage, to a temporary train which was to run to the washout, around which the passengers were to walk to take another train for New York. As the porter was leaving the train, after the plaintiff’s wife had obtained a seat and the baggage had been deposited, the plaintiff asked for his sleeping-car ticket. The porter refused to give it to him or to go to the office, but agreed to show him the sleeping-car conductor; and after walking some distance from the train, and when near a group of men, said, “ there is the conductor.” As they passed the plaintiff asked him to tell the conductor that he was entitled to a section to New York, and on the porter replying that was none of his business, said, touching him lightly on the arm, “ You must not leave me without giving me some satisfaction in this business; ” thereupon the porter whirled around and, saying, “Take your hand off me or I’ll hit you,” struck him.

      Reid, that as the porter was not, at the time of the assault, engaged in the.business of the transportation of the plaintiff, he was not acting as a servant of the defendant so as to make it liable for his acts.

      Thorpe v. New Yorh Central and Hudson Riser Railroad Company (76 N. Y., 408) distinguished.
    Appeal from a judgment, entered in pursuance of an order dismissing tbe complaint.
    On the 12th day of August, 1885, the plaintiff purchased of the defendant, paying therefor the regular fare, a ticket from Geneva to New York, and entered a sleeping car attached to one of the defendant’s trains which was called the Norwood. He then purchased and paid for to the porter, who was in sole charge of a section in that car, and received from the porter, a ticket showing that he had purchased said section for a continuous passage from Geneva to New York. He then went to bed, having first given up his tickets to the porter, at the porter’s direction. The train was due in New York tbe next morning. Upon awakening tbe next morning tbe plaintiff found that tbe train bad been run upon a side track and detained at Utica all nigbt by reason of a washout on tbe defendant’s track. Tbe plaintiff’s raib-oad ticket bad been returned to him in tbe morning, and at about noon be was informed, as be believes by tbe porter, that it was intended to make up a temporary train and run down to tbe washout, and that be would have time to get bis dinner if be desired to do so. After dinner tbe plaintiff’s wife went back to tbe cars first, and upon-the plaintiff’s going back he met bis wife, accompanied by tbe porter who bad been in charge .of tbe Norwood,, who was carrying tbe plaintiff’s small packages. He informed tbe plaintiff that tbe Norwood was going' no further, and that be was carrying plaintiff’s things over to tbe temporary train which was to carry plaintiff down to tbe washout, where tbe passengers were to walk around tbe washout and take a train on the other side for New York.
    They went through tbe various cars of tbe temporary train but could not find any seats, but finally a gentleman gave tbe plaintiff’s wife a seat, and tbe porter put tbe plaintiff’s' baggage down by tbe door of tbe car and turned away from tbe plaintiff and walked away. The plaintiff then pulled him by tbe sleeve and asked him for bis sleeping-car ticket, and in reply tbe porter said that be bad to show it to tbe company. Then tbe plaintiff asked him to go to the office, and he said be would not go ; then tbe plaintiff asked him to take him to tbe sleeping-car conductor that was going with them. He said that be would show him tbe conductor, and after walking some distance they passed near a group of men, and tbe porter said: “There is tbe conductor.” The porter kept on, and tbe plaintiff also; both came to a stop some little distance beyond tbe group. Before they came to a stop tbe plaintiff said: “ Take me to him and tell him who I am : that I have a right to a section in a sleeping-car as far as New York.” ■ And tbe porter said in reply: “ That is none of my business,” and the porter turned to leave. The plaintiff then said: “You must not leave me without giving me some satisfaction in this business.” Tbe porter then turned and said: “ Take your band off me or I’ll bit you.” And then it was that tbe porter bit the plaintiff, and for tbe damages resulting this action was brought.

      The plaintiff put in evidence tbe agreement between the defendant and the New York Central Sleeping Car Company, which company owned and controlled the sleeping car “ Norwood.” This agreement provides that the sleeping car company is to furnish sleeping cars to run in defendant’s trains, and to have for their own use and benefit the sums collected for accomodations in the sleeping car, and is to indemnify the defendant against liabilities to patentees of inventions in respect to sleeping cars; and is to procure the requisite license for inventions used, and is to have the right to place in each sleeping car a conductor and porter who are to be carried without charge. This railroad company’s conductors are to have the right to enter the sleeping cars to collect the railroad fares or for any purpose connected with the management of the trains, and to call upon the sleeping car company’s conductors and porters to assist in maintaining in the sleeping cars the good order and discipline of the road, but are not otherwise to interfere with the business of the sleeping cars.
    Upon the conclusion of the plaintiffs case the defendant moved to dismiss the complaint, upon the ground that the plaintiff had made out no cause of action against the defendant; that the cause of action stated in the complaint had not been made out; that the act complained of was not within the scope of the authority of the person who did the act; that the act complained of was not done by any servant of the defendant while engaged in performing any duty which the defendant owed to the plaintiff. This motion was granted, which ruling was duly excepted to, and from the judgment subsequently entered this appeal is taken.

      Hugh I. Cole, for the appellant.

      Frank Loomis, for the respondent.
   Van Brunt, P. J.:

The question .involved in this appeal seems to be, was the porter who committed the assault upon the plaintiff to be deemed a servant of the defendant? It is undoubtedly true that the defendant’s servants were bound to exercise due care, even though the plaintiff was not actually upon one of its cars, to protect the plaintiff from assault, but as the act complained of was not one to be forseen and Consequently could not be guarded against, there is no evidence of want of care in this respect, and the plaintiff must recover, if at all, upon the ground'that the assault was committed by one of the defendant’s servants while engaged in the business of the defendants. The case of Thorpe v. New York Central and Hudson River Railroad Company (76 N. Y., 402), is relied upon by the appellant’s counsel as establishing the proposition that the porter in the case at bar was, for all the purposes of this action, the servant of the defendants.

In the case of Thorpe the plaintiff was a passenger upon the defendant’s train. He entered the cars at Syracuse with the intention of riding in one of the ordinary cars to Auburn. He passed through the two ordinary cars attached to the train and finding no vacant seats passed into the drawing-room car and when called upon by the porter to pay the extra charge for a seat in that car, declined to pay the sum demanded for the reason that he could find no seat in the other cars. The porter attempted to eject the plaintiff from the car, and for this assault the action was brought and the court held that if the right of the plaintiff to maintain his action depends upon the existence of the conventional relation of master and servant between the defendant and the porter at the time of the transaction in question the action could not be maintained; that the porter was actually the servant of the proprietor of the drawing-room cars. But because of the peculiar relations existing between the’ drawing-room car company and the railroad company, the court was of the opinion that the persons in charge of the drawing-room car wei’e to be regarded and treated in respect of their dealings with the passengers as the servants of the defendants and that the defendants were responsible for their acts to the same extent as if they were directly employed by the company. The assault was committed in the case of Thorpe while the passenger was being transported pursuant to his contract with the railroad company, and it was to enforce a regulation of the company that the attempt was made to remove him.

In the case at bar, however, the porter' had performed all the duties which as a servant of the defendant he owed to the plaintiff. He had told him that the temporary train was going on. He had transported the plaintiff’s small luggage to the train, a duty which perhaps he was not legally required to perform, and had left the plaintiff and it was because of the plaintiff’s anxiety to secure sleeping accommodations, not transportation, that he pursued the porter, and it was solely and entirely in respect to that subject that the further circumstances between the plaintiff and the porter took place, which resulted in the assault.

The porter had returned to the plaintiff his passage ticket which he had taken up the evening before so that the plaintiff would not be disturbed during the night, and there was no controversy about that or about the transportation. The whole question was about something additional to that which the plaintiff’s passage ticket entitled him to receive and which the railroad company-had not agreed to furnish. It might be, true that, under the rule laid down in the case of Thorpe, if tne assault in question had been committed upon the plaintiff while upon the train, that the railroad company would haye been liable, although the dispute was about sleeping car accommodations, which, under the law of 1858, might legally be furnished by another party, but it would be .enlarging the rule that the porters on these cars are, constructively, the servants of the railroad company, to an unnecessary extent, to hold that when porters of these cars are in nowise engaged about the transportation of the passengers, and are not upon the tram by winch the passenger is to be transported, and have no connection therewith, the relation of master and servant exists, even constructively, between such porter and the railroad company.

In the case at bar, as has already been said, the porter was in nowise engaged in the business of the transportation of the plaintiff. The plaintiff had been transferred to another train with which the porter liad no connection. He had given up the passage ticket to the plaintiff, had transferred his small baggage to the other train, and had gone a considerable distance from the train followed or accompanied by the plaintiff without any invitation of his, the plaintiff following him for the purpose of securing sleeping accommodations upon the other side of the washout, with the. furnishing of which the defendant had nothing to do. If the defendant furnished transportation that was all it was required to do by its contract, and if in his anxiety to secure something beyond that, to which he may have-been entitled from somebody else, the plaintiff met with an obstruction from which he suffered damage, the defendant cannot be held liable,therefor.

A large number of cases have been cited by the appellant in respect to the duties and obligation of the carriers of passengers, but none of them elucidate the questions which arise upon this appeal.

We are of opinion, therefore, that whatever claims the plaintiff may have against the sleeping car company for the assault committed upon him, that none exist against the railroad company for the reasons above stated.

The judgment appealed from should be affirmed, with costs.

Daniels and Bartlett, JJ., concurred.

Judgment affirmed, with costs.


text:
    EPHRAIM KARELSEN and MARTIN LIPMAN, Appellants, v. THE SUN FIRE OFFICE OF LONDON, Respondent.

      Proofs of loss —when defeats in them are waived by their acceptance by the company — what is not a sufficient notice of its intention to rely upon such defects as a defense.

    Upon the trial of this action, hrought by the plaintiffs upon a policy of insurance alleged to have been issued by the defendant upon property belonging to the plaintiffs, the complaint was dismissed upon the ground that the proofs of loss furnished by the plaintiffs did not accord with the terms of the defendants’ policy. To prove a waiver bn the part of the company a letter to the plaintiffs, written by the defendant’s manager, was put in evidence, in which he said, with, out admitting anything, you are hereby notified that this company has not admitted, and does not admit, any liability whatever, for and on account of said alleged loss, or the validity of any claim made therefor, nor the correctness of any statement in said papers (referring to the proofs of loss) contained; that this company has not waived, and does not and will not waive, anything, and expressly reserves any and all objections to any and all claims that have been or may he made by you, or on your behalf, against this company for and on account of said alleged loss.

      Held, that as the loss was disputed upon the ground that no contract of insurance existed, and the proofs of loss were retained and no notice was given in the letter of their insufficiency, the court erred in dismissing the complaint upon the ground that the proofs of loss were defective.

      Appeal from a judgment entered upon an order of tbe court dismissing tbe plaintiffs’ complaint.
    This action was brought to recover tbe sum of $25,000 due on an agreement, which the plaintiffs - claimed had been made by the defendant company, to insure a stock of merchandise belonging to the plaintiff. On the morning after the fire, which occurred on September 3, 1885, proofs of loss were served on the defendant company, by which they were retained. Thereafter the following letter was written to the plaintiffs by the defendant’s manager.
    “New Yoke, September 22, 1885.
    “ To the Shaped Seamless Stocking Co :
    “ In order that it shall not at any time be claimed or pretended that this company, by receiving or retaining or omitting to object to the papers purporting to be proof of loss alleged to have been sustained by you, by the destruction of or damage to machines and machinery and stock contained in a brick building on Randall’s Island, New York, which papers were sent to and left at the office of this Company, on the 15th day of September, 1SS5, admitted the propriety or regularity of the delivery or service of such papers or the sufficiency of such papers, or assented thereto, or admitted the truth or correctness of any statement therein contained, or the existence of any claim whatever against this Company for or by reason of such alleged loss.
    “You are hereby notified that this Company has not admitted and does not admit any liability whatever for or. on account of such alleged loss, or the validity of any claim made therefor, nor the correctness of any statement in said papers contained. This company has not waived and does not and will not waive anything, and expressly reserves any and all objections to any and all claims that have been or may be made by you, or on your behalf, against this company for and on account of said alleged loss.
    «SUN TIRE OEEICE OF LONDON,
    By R. C. RathboNe,

      “Manager?

      Adolph L. Sanger, for the appellants

      Charles S. Alexander, for the respondent.
   Van Brunt, P. J.:

Tbe only question which need be considered upon this appeal as as to the sufficiency of the proofs of loss .attempted to be furnished to the defendant upon the part of the plaintiffs. The objection that there were not sufficient parties plaintiff was not available to the defendant, as no such defense was set up in the answer. It is true that the alleged co-partnership was denied, but such a denial is not sufficient to sustain a claim upon the part .of .the defendant that there were other partners in the firm beside those alleged in the complaint. If the defendant desired to avail themselves of this defense, they should have alleged who they were, and that they were still living so that the plaintiffs could have been informed as to the precise claim made by the defendant in this respect, and have amended their proceedings accordingly, if they were so advised. Under a simple denial of an allegation of partnership a defendant cannot claim that there are other persons interested in the firm who should have been made parties plaintiff.

The proofs of loss do not accord with -the terms of the defendant’s policy as set forth in the complaint, among other- things, 'in that they were not signed by the plaintiffs or either of them, •nor -were they verified by their oath or affirmation, and unless there has been some waiver, either express or implied, of this icondition, the objection now taken must be fatal to the plaintiffs’ .claim. The alleged proofs of loss were served on the defendant on the 15th of September, 1885, and on the twenty-second of 'September, the manager of the defendant sent the very remarkable letter of that date, in which it is evident that he desired to keep .alive all objections to the proof and the claim,, and to keep the plaintiffs in entire ignorance as to what objection he had to the •proofs as'served. In this, however, we think he has failed.

The whole of the first part of the letter is qualified by the last paragraph. The manager says to the plaintiffs, without admitting .anything, you are hereby notified that his company has not admitted .any liability and does .not admit any liability whatever for and on ¡account of said alleged loss, or the validity of any claim made therefor, nor the correctness of any statement in said papers (referring to proofs or loss) contained; that his company has not waived ,and does not and will not waive anything and expressly reserves any and all objections to any and all claims tbat have been or may be made by you or on your bebalf against bis company for and on account of said alleged loss.

In bis notice tbe manager gives no notice of tbe insufficiency of tbe papers; bis notice is that be does not admit any liability or tbe correctness of any statement in tbe papers contained. The papers called proofs of loss were retained by the defendant; it pointed out no defects in them. Tbe sole, tenor of its notice was tbat they would not admit tbe claim, and tbat it must not be considered as admitting tbe correctness of any statement in tbe papers by their retention. If tbe defendant desired to object to tbe form of tbe proofs of loss they were bound to give notice of tbat fact, so tbat they might be corrected. ‘This course, which ordinary fairness would seem to have dictated, tbe defendant carefully avoided doing, and by its letter of September twenty-second it seems to have desired to mislead tbe plaintiffs as to the grounds of its refusal to pay, while endeavoring to retain any other objection which tbe ingenuity of its manager might subsequently discover.

Tbe loss was disputed upon tbe ground tbat no contract of insurance existed, and to tbat point was tbe attention of tbe plaintiffs directed; and as tbe proofs of loss were retained, and no complaint made as to any particular omissions or defects in the proofs of loss, tbe plaintiffs bad tbe right to assume tbat the contention was to tbe fact of tbe existence of the contract of insurance. (Brink v. Hanover Ins. Co., 80 N. Y., 112; Hermann v. Niagara Ins. Co., 100 id., 411.) Under this condition of the evidence it seems to have been error to have dismissed tbe plaintiffs’ complaint upon tbe ground that tbe -proofs of loss were insufficient.

Judgment must be rendered and a new trial ordered, .with costs to appellants to abide event.

Beady and Daniels, JJ., concurred.

Judgment reversed,-new trial ordered, costs to appellants to abide event.


text:
    CLEMENTINE SCHNORR and Others, Plaintiffs, v. HERMINA (Otherwise Called HERMINE) SCHROEDER and Others, Defendants.

      Legacies — when not a charge upon the real estate of the testator.

    A testator, after making certain specific bequests, and giving other legacies of $1,000 each to three persons, two of whom were nephews, gave, devised and bequeathed all the rest, residue and remainder of all his estate, both real and personal, to his daughter. At the time of making the will, March 17,1883, the testator had over $30,000 in personal property, some of which he subsequently invested in real estate. At the time of his death, in March, 1885, he had not sufficient personal property to pay his debts and funeral expenses.

      Held, that the legacies were not to he deemed a charge upon the real estate of the testator
    Submission of a controversy upon an agreed statement of facts, under the provision of section 1279 of the Code of Civil Procedure.

      Jesse K. Furlong, for the plaintiffs.

      Richard M. Brum, for the defendants
   Van Brunt, P. J.:

The testator, on the 17th day of March, 1883, made, puoiished and declared his last will and testament, by which he directed his executors to pay debts and funeral expenses. He then made some specific bequests to one Clementine Jenne Rosse Rottier. He then gave three legacies of $1,000 each to three persons, two of them nephews, and then gives, devises and bequeaths all the rest, residue and Remainder of all his estate, both real and personal, to his daughter. At the time of making this will, the testator had over $30,000 in personal property. Some of this he subsequently invested in real estate, and at the time of his death in March, 1885, he had not sufficient personal property to pay his debts and funeral expenses, and the question now submitted to the court is as to whether the legacies ábove mentioned are to be deemed a charge upon the real estate of the testator.

This question is a matter of intention, and such intention may be gathered from the will itself, and also from the circumstances Surrounding the testator at the time of the making of the will. Tbus it has beeu held that where it appeared that the testator must have known at the time of making his will that he had no personal estate and that he had real estate, and legacies are given, it will be presumed that the testator did. not intend to go through an idle ceremony in making the bequests, but that he intended them to be paid; and that as he knew that they could only be paid out of his real estate, he must have intended them to be a charge upon his real estate. (McCorn v. McCorn, 100 N. Y., 511.) But where, at the time of making the will, the' testator 'has ample personal estate to satisfy all the legacies mentioned in the will, no intention can be inferred of making the payment of legacies a charge upon his real estate, unless the terms of the will itself require this interpretation. The mere existence of a general residuary clause is not sufficient to raise the presumption of an intent to charge real estate with the payment of legacies. There must be something more, or the intention will not be rendered sufficiently apparent to make the legacies a charge upon the real estate thus devised.

The ease of Hoyt v. Hoyt (85 N. Y., 142), cited by plaintiffs counsel, does not bear out the view which is sought to be derived from it. It is true that in that case, at the time the testator made his will, that he had sufficient personal property to pay the legacies mentioned in his will, but the court base their decision upon the fact that after a change in his circumstances, and when he had no longer sufficient personal property to pay the legacies named in the will, the testator republished his will and, in a codicil, inserted a power of sale of his real estate, in view, as the court say, of the lack of personal property to pay these legacies.

The decision in the case of Scott v. Stebbins (91 N. Y., 605) turned upon the fact that the legacy mentioned in the will was to a son, and was given him to make him equal to another son to whom he had previously made advances, and they could not be made equal except by the payment of the legacies in full.

In the case at bar, there being no indication of any intention of the testator to charge his real estate with the payment of legacies, and the rule in England, that if legacies are given generally and the residue of the real and personal estate is afterward given in one mass the legacies are a charge on the residuary, real as well as personal, estate, not being recognized by the courts of this State, the legacies in question did not become a charge upon the real estate of the testator.

Judgment accordingly.

Daniels and Bartlett, JJ., concurred.

Judgment ordered as directed in opinion.


author: Van Brunt, P. J. :

text:
    MANHATTAN STAMPING WORKS, Appellant, v. HERMANN KOEHLER, Respondent.

      Damages — measure of — when profits cannot be recovered — when proof of matters, not stated, in the complaint, will not be received.

    The complaint in this action alleged a letting by the defendant to the plaintiff for the term of one year from May 1, 1885, at a yearly rent of $6,000, of certain premises in the city of New York, together with all the steam power the plaintiff needed in its business during that term, and that the defendant knew the nature of the plaintiff’s business and that such steam power was necessary for the prosecution and conduct thereof; that the plaintiff occupied the said premises under said agreement from May 1, 1885, until July 16, 1885, and fully complied with the terms of the agreement, but that the defendant failed to comply with the agreement on his part by failing to furnish the necessary amount of steam power as he had agreed to do, whereby the plaintiff was prevented from keeping its workmen employed, material was spoiled and shafting and belting damaged, and profits lost, to the plaintiff’s damages $3,000.
    Upon the trial evidence offered by the plaintiff to establish the allegations of the complaint as to the damages sustained, and also to prove the rental value of the machinery during the time of the alleged breach, was, upon the objection of the defendant, excluded.

      Held, that the court did not err in so doing.
    That the damages arising from the destruction of material, because of the unevenness of the power, could not be recovered, as if such was a necessary result of the use of the power as furnished, the plaintiff was at fault in attemp-ing to use the power and thus put at hazard his material.
    That the profits which might have resulted from the continuation of the plaintiff’s business were too remote to admit of a recovery.

      Grijfin v. Coher (16 N. Y., 489); Oassidy v. Le Fevre (45 id.. 562) followed.
    That the evidence tending to show what was the ordinary rent or hire of the machinery was properly rejected, as no claim for damages upon this ground was contained in the complaint.

      Appeal from a judgment in favor of the defendant, entered upon a dismissal of the complaint directed at the circuit.
    The plaintiff’s complaint alleged a letting by the defendant to the plaintiff for the term of one year from May 1,1885, at a yearly rent of $6,000, of certain premises on First avenue in the city of New York, together with all steam-power the plaintiff needed in its business during the said term, and .that the defendant knew the nature of the plaintiff’s business, and that such steam-power was necessary for the prosecution and conduct thereof. That the plaintiff occupied said premises under said agreement from May 1,1885, until July 16, 1885, and fully complied with the terms of its agreement, but that the defendant had failed to comply with the agreement on his part by failing to furnish the necessary amount of steam-power as lie had agreed to do, whereby plaintiff was prevented from keeping its workmen employed, material was spoiled and shafting and belting damaged, and profits lost, to plaintiff’s damage $2,000.
    The answer denied the letting to the corporation and sets up an agreement of letting with one Scheider, and alleged compliance with said agreement, except so far as it had been modified by a subsequent agreement entered into with said Scheider.
    ■ Upon the trial the plaintiff offered evidence tending to establish the allegations of the complaint, and also offered to prove what the rental value of the machinery was during the time of the alleged breach of the contract as to power, which evidence was excluded upon the objection of the defendant, to which ruling plaintiff duly excepted. Upon the conclusion of the plaintiff’s evidence,, the plaintiff’s complaint was dismissed, from which ruling an exception was duly taken and from the judgment thereupon entered this appeal was taken.

      Maurice Rapp, for the appellant.

      Hathaway & Montgomery, for the respondent.
   Van Brunt, P. J. :

The difficulty with the plaintiff’s case seems to have been that the complaint was framed upon an entirely erroneous theory as to the measure of damages. The damages arising from the destruction of material because of tbe unevenness of tlie power could not be recovered, as if sucb was a necessary result of tbe use of tbe power as furnished, the plaintiff was at fault' in attempting to use tbe power and thus put at hazard bis material which must necessarily be destroyed because of the quality of the power furnished. The plaintiff could not make damages by the use of an article furnished, which it knew to be entirely unsuited to the uses to which it was to be applied.

The rule of damages laid down in the case of Griffin v. Colver (16 N. Y., 489), is that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained, and the rule is subject to two conditions. The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract; they must be such as might naturally be expected to follow its violation, and they must be certain both in them nature and in respect to the cause from which they proceed.

In the case cited there had been a failure to deliver on a certain day a steam engine built and purchased for the purpose of driving a planing mill, and it was held that the estimated profits from the use of the machinery could not be recovered as being too uncertain, but that the ordinary rent or hire which could have been obtained for the use of the machinery, whose operation was suspended for want of the steam engine, might be recovered as damages.

The case of Cassidy v. Le Fevre (46 N. Y., 562) affirms the same doctrine and calls attention to the distinction between the facts in the case cited of Messmore v. New York Shot and Lead Company (40 N. Y., 422), in which case profits upon a contract were allowed to be recovered because the vendor knew at the time he made his contract that the purchaser had a contract with another party for the identical goods contracted for, and that he was making the contract with the vendor for the fulfillment of this contract. Therefore in the case a.t bar the profits which might have resulted from the continuation of the plaintiff’s business were too remote to admit of a recovery. The facts sought to be proved as to the allegation that the workman did less work are of an equally uncertain character conjective, and must be included in the damages recoverable as laid down in the cases cited. The claim for repairs which the plaintiff was required to make to its machinery seems to be governed by the same rule as has been applied to loss of material. If the power furnished was unfit for the use of the plaintiff’s machinery, the plaintiff knew it and the plaintiff had no right to make damages by its attempted use.

. It is true that questions were attempted to be put tending to show what the ordinary rent or hire was of the machinery during the time of this deficiency of power, which were excluded, which ruling would have been error had there been any allegation in the complaint basing any claim for damages upon this ground. But the complaint made no claim for damage upon this ground. No such issue was presented and consequently the evidence offered was not relevant to any issue presented by the pleadings.

No error seems, therefore, to have been committed upon the trial, and the judgment should be affirmed, with costs.

Daniels and Bartlett, J J., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Petition of the NEW YORK CABLE RAILWAY COMPANY.

      Oommissioners to decide as to the construction of steam railway sin cities — 1875, chap. 606, sec. 4 — the refusal of the property owners to consent, after the determination of the route by the ra/pid transit commissioners, must be shown.

    To authorize the General Term of the Supreme Court to appoint commissioners to determine whether a railway ought to he constructed or operated, as provided in section 4 of chapter 606 of 1875, it must be shown that the owners of one-haif in value of the property, hounded on the portion of the street or highway upon which it is proposed to construct or operate such railway, have refused to consent thereto, after the rapid transit commissioners have fixed and determined the route or routes for such railway, and the time and place of construction, as provided in the said act..

    No legal application for such consent can he made until the rapid transit commissioners have exercised this power, as such action on their part is necessary to enable the property owners to whom application is made to know to what kind of a road they are consenting, to what degree the streets will he obstructed thereby, of what efficiency the proposed mode of construction is capable, and to what particular objections it is subject, from which some other method of construction might be free.
    MotioN for a rehearing and an order to show cause why the report of the commissioners previously ajipointed by this court in this matter should not be remanded to them for further hearing.
    This is an application by the petitioner for a rehearing of the motion previously made by it to confirm the report of the commissioners appointed by this court to determine whether or not the petitioner’s railways ought to be constructed and operated. This court denied the motion. (40 Hun, 1.) From this order of denial the petitioner appealed to the Court of Appeals. The order was affirmed by that Court, but upon grounds different from those taken by the General Term. That court held, among other things, that there were defects in the petitioner’s articles of association.
    After the decision upon the appeal, the petitioner took measures to amend its articles so as to correct the defects and supply the omissions, pointed out by the Court of Appeals, and thereupon moved for a reargument in that court. This motion was denied, not upon its merits, but upon the ground that the court had no power to consider the new facts brought before it. Thereafter this motion for a rehearing was made.

      Everett P. Wheeler, Joseph H. Choate and Robert Sewell, for the motion.

      Aaron J. Vanderpoel, Waldo Hutchins, William C. Trull and others, opposed.
   Van Brunt, P. J.:

It is not necessary to discuss the various points which were presented in opposition to the granting of these motions upon the argument thereof, but simply to consider one which seems to show that this court has no jurisdiction whatever to entertain the present applications.

It appears from the act under which this proceeding is taken that the jurisdiction of this court depends entirely upon the refusal of the owners of one-half in value of the property bounded on that portion of the street or highway upon which it is proposed to construct or operate the railway or railways, to consent thereto. It further appears from the decision of the Court of Appeals upon the appeal to that coart from the judgment of this General Term, which judgment we are asked to reopen, that the rapid transit commissions must exercise the power of deciding upon the plans of construction, and that such decision had not up to that time been made, and consequently had not been made at the time the consents were applied for, the refusal to grant which was supposed to have conferred jurisdiction upon this court. It was further held that such decision and determination as to plans oi construction were necessary m order that those who consent to the construction of the road, whether they be the local authorities, the property owners or, the Supreme Court commissioners may know to what kind of a road they are consenting, to what degree the streets will be obstructed thereby, of what efficiency the proposed mode of construction is capable.

It may be added that the rapid transit commissioners must exercise the powei of deciding upon the plan of construction in order that those property owners to whom application is made for this consent may act intelligently, that they may know to what kind of a road they are asked to consent. Lo what degree the streets will be obstructed thereby, of what efficiency the proposed mode of construction is capable, and to what particular objections the method of construction proposed is subject, from-which some other method of construction might be free

In the case at bar the Court of Appeals has decided that the plans for the construction of the road claimed to have been adopted by the rapid transit commissioners were fatally defective, and were no plans at all, and did not comply in many material respects with the requirements of law. That such pretended plans attempted to give to the board of directors of the corporation the right to determine questions the exclusive exercise of which belonged to the rapid transit commissioners. That they utterly failed to convey that information to the property owners upon the route, to which they were entitled before they could be asked to give their consent.

It may be that it was because of this very want of knowledge as to the plans proposed to be used in the construction of these roads, the want of any determination as to whether the roads should be surface or elevated, that the property owners along the proposed routes have refused tbeir assent. Tlie Court of Appeals says that the necessary materials were not before the property owners, when they were applied to for their assent in this matter, to enable them to form an intelligent judgment whether the scheme proposed should or should not be assented to.

As this court acquires jurisdiction only because of the refusal of property owners to consent, there must be placed before the property owner, before he can legally be asked to consent, those necessary materials which the statute has prescribed as being necessary for him to form an intelligent judgment as to the merits of the proposed scheme, and as under the decision of the Court of Appeals such materials did not exist at the time the property owners were applied to for their consent m this matter, no legal application for such consent has ever been made; there lias been no refusal and this court is entirely without jurisdiction.

The motion must therefore be denied, with costs.

Brady and Daniels, J J., concurred.

Motion denied, with costs.


author: Pee CueiaM:

text:
    WINSTON JONES, as Assignee of the Bank of Mobile, Respondent, v. THE MERCHANTS’ NATIONAL BANK OF THE CITY OF NEW YORK, Appellant, Impleaded with the BANK OF MOBILE.

      Supreme Court — power oj at Special Term to correct the minutes of the Circuit Court.

    The Supreme Court at Special Term has no Jurisdiction to correct or otherwise interfere with the minutes of the Circuit Court
    Appeal from an order made at a Special Term, correcting the minutes of the Circuit Court.
    This is an appeal from an order made at Special Term, which denied the defendant’s motion to set aside the verdict and judgment as void or irregular, vacated the said judgment and substituted a different judgment for it; canceled the clerk’s minutes of trial, and substituted other minutes for them; and in other respects altered the judgment-roll.

      George Zabriskie, for the appellant.

      Burton N. Harrison, for the respondent.
   Pee CueiaM:

"We do not think tbe Supreme Court at Special Term bas any jurisdiction to correct or otherwise interfere with tbe minutes of tbe Circuit Court. Tbe tribunals are so far distinct, that tbe Special Term bas no supervisory power over tbe minutes of tbe Circuit Court.

On tliis ground, without considering any of tbe otüer points raised on tbe argument, we tbink the order appealed from should be reversed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Daniels and Bartlett, JJ.

Order reversed, with ten dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALFRED L. BURGESS, Appellant.

      Administration of poison with intent to hill — what must be shown to justify a conviction under section 217 of the Penal Code.

    To sustain a conviction of assault in the first degree for administering poison to any person with intent to kill him, as that offense is defined in section 217 of the Penal Code, it must he shown that the life of the person was endangered by the administration of the poison.
    Appeal from a judgment of tbe Court of General Sessions, of the city and county of New York, convicting tbe defendant of an assault in tbe first degree.

      A. Suydam, for the appellant.

      Mackenzie Semple, for the respondent.
   Van Brunt, P. J.:

Tbe defendant was indicted for having committed tbe crime of assault in the first degree. The indictment stated that the defendant, together with one Anna Mulholland, did willfully and feloniously make an assault upon one Mary E: Burgess, and. did then and there willfully and feloniously administer and cause to be administered to, and taken by her tbe said Mary E. Burgess, a certain poison, to tbe grand jury unknown, witli intent to kill tbe said Mary E. Burgess, by means whereof tbe life of tbe said Mary E. Burgess was then and there endangered.

Tbe defendant, upon tbe trial of this indictment, was convicted, and tbe question raised upon this appeal is whether tbe evidence was sufficient to justify such conviction, there being no sufficient evidence to show that by the administration of tbe poison the life of the said Mary E. Burgess was endangered.

The evidence seems to be entirely sufficient to justify tbe conclusion that tbe defendant not only administered, but also caused to be administered, tbe poison to bis wife with intent to kill His letter, together with tbe testimony of Mrs. Burgess shows conclusively tbe fact of such administration, and that tbe symptoms which arose, after tbe administration by tbe defendan and by bis sister-in-law of the liquid testified to, were in no respect caused by tbe medicine which tbe doctor left to be given to Mrs. Burgess.

Tbe question, however, upon this indictment is as already stated, whether there was evidence going to show that this administration endangered the life of Mrs. Burgess.

Under the Statute as it existed prior to the adoption of the Penal Code, this element of proof was not necessary, and it is difficult to see what end has been subserved by, instead of codifying the law upon this subject as it already existed, the insertion of tbe necessity of proof of an additional element which makes it almost impossible to convict of assault in the first degree for the administration of poison. It would seem that the administration of poison with the intent to kill should be entirely sufficient as it was under the statutes, to justify such a conviction although it may have been administered in consequence of ignorance in such large or small doses, as not actually to have endangered human life.

Under the Penal Code, however, it is necessary that the proof should establish the fact that by the administration of the poison life was endangered. This it is almost impossible to prove. The poison is always administered secretly. The fact of the dangerous character of the dose can only be judged by its effects., .and if death does not ensue, the proof upon this point is necessarily exceedingly difficult to procure.

The intention that the administration should be dangerous is involved in the proof of the intent to kill, and because of unskillful administration so that death does not ensue, the character of the crime does not in any degree seem to be lessened. The offense is certainly as great as an assault by means of any deadly weapon with intent to kill.

Under the law as it stands, however, the evidence in the case at bar was entirely insufficient to show that by the administration of the poison in question the life of Mrs. Burgess was endangered, and consequently the conviction cannot stand.

The judgment should be reversed.

Beady and Daniels, JJ., concurred.

Judgment reversed.


author: Daniels, J.:

text:
    In the Matter of the Petition of the METROPOLITAN TRANSIT COMPANY OF THE CITY OF NEW YORK to Acquire Title to Lands, etc.

      Construction of a railway in the city of New York — 1872, chap. 883, as amended by chapter 636 of 1881 —petition to determine the compensation to be made to the city — power of the court to permit amendments to be made — to allow separate proceedings to be instituted to determine the compensation to be made for real estate to be taken. and, the compensation to be made to the city for the use of its streets.

    In September, 1876, tie petitioner, incorporated and authorized by chapter 833 of 1873, as amended by chapter 636 of 1881, to construct a railway in the city of New York, filed a petition alleging that it sought to acquire all those pieces or parcels of land situated in that city, owned by the mayor, aldermen and commonalty of the city of New York, which constituted the streets and portions of the avenues therein, which were included in the routes and branches of the company, as finally adopted and completed. Thereafter an order was made granting an application made in behalf of other companies and individuals to. be made parties to the proceeding, upon the ground that they had interests which might be affected adversely by the construction of the petitioner’s railway.
    Subsequently and in April, 1887, the petitioner was allowed to amend the petition so as to make it allege that the sole object of the application was to ascertain, in accordance with the petitioner’s charter, the compensation, which was to he made to the mayor, aldermen and commonalty of the city of New York in relation to the construction and operation of its railroad, in and over the streets and avenues therein, which were included in its route and branches as finally adopted, and that it did not seek to acquire any title in, or to the land included within such streets or avenues, or the interest of any persons or corporations therein, or any interest in real estate.
    Upon an appeal taken by the companies and individuals made parties to the proceedings, from this order;

      Held, that it should be affirmed.
    That authority to permit the amendment to be made was conferred upon the court by section 22 of 2 Revised Statutes (6th ed.), 626.

      Matter of New York and West Shore Railroad Company (89 N. Y., 458) distinguished
    That the act under which the petitioner was incorporated contemplated two objects for which compensation should be made:

      First. For the real estate, etc., required by it in the construction and operation of its road or necessary depots, etc., and,

      Second. For the authority to construct and operate its railways along any street, avenue or public place in the city of New York, for the use and occupancy of which compensation was to be made to the city only.
    That, while the statute did not expressly provide that these two objects might be acquired in separate proceedings, it does not forbid the court from permitting that course to be taken.
    Appeal from an order entered herein on the 13th day of April, 1887, granting leave to the petitioner to amend the original and supplemental petitions of the petitioner herein.
    The Metropolitan Transit Company is organized under a special act of the legislature of the State of New "Y orle (chap. 833, Laws of 1872, as amended by chapter 636, Laws of 1881). The first petition of the Metropolitan Transit Company herein, verified in September, 1875, prayed that an order might be made by this court for the appointment of commissioners of appraisal “ to ascertain and appraise the compensation to be made to the owners or persons interested in the real estate proposed to be taken by your petitioner in the county of New York for the purpose of the petitioner’s railroad, according to the provisions of an act of the legislature of this State, entitled ‘ An act to authorize the formation of raih’oad corporations and to regulate the same,’ passed April 2, 1850, and the various acts amendatory of the same, and of the special act of 1872,” under which this corporation claims existence and authority for the present proceeding. In 1881 the act of 1872 was amended. In March, 1886, a new or supplemental petition was prepared, the nineteenth subdivision whereof is as follows:
    “ Nineteenth. Your petitioner further alleges that the real estate, property, rights, franchises and interests which your petitioner now seeks to acquire are all those certain pieces or parcels of land situated in the said city and county, now owned by the mayor, aldermen and commonalty of the city of New York, who reside in said city and county, which constitute the streets and portions of the avenues therein which are included in the routes and branches* of said company as finally adopted and completed by the said board of engineers, as shown by said surveys, maps and plans of said routes, filed by them in the office of the state engineer and surveyor in the city of Albany aforesaid, being the several routes •which are hereinbefore mentioned and which are required for the construction and operation of an elevated railroad and of the tunnel by your petitioner in such streets and avenues respectively.”
    The petition prays that the application heretofore made by the petitioner to this court may be amended so that the new petition may be considered as a supplemental petition to said first petition, and may authorize the commissioners of appraisal to be appointed, thereunder “ to ascertain and appraise the compensation to be made to the said mayor, aldermen and commonalty of the city of New York for the streets in said county which are desired for the purposes of your petitioner aforesaid, as the same have been finally designated by the said board of engineers in the surveys and maps for its route as finally adopted and completed by them, and as filed in the office of the state engineer and surveyor in the city of Albany, being those which are hereinabove mentioned, according to the provisions of an act of the legislature of the State of New York, entitled ‘An act to authorize the formation of railroad corporations and to regulate the same,’ passed April 2, 1850, and the various acts amendatory of the same, and of chapter 833 of the Laws -of 1872, and of chapter 636 of the Laws of 1881.”

      Elihu Root, Samuel B. Clark, Jos. S. Auerbach and Julien T. Davies, for the appellants.

      George W. Wingate and John Clinton Gray, for the respondents.
   Daniels, J.:

Tiie petitioner was incorporated by chapter 833 of the Law's of 1872 to construct a railway in che city of New York. The act was amended by chapter G36 of the Laws of 1881, but, in no essential lespect, affecting this proceeding. While it was pending, applications were made in behalf of other companies and individuals to be made parties to the proceeding, they appearing to have interests ■which would, probably, be affected adversely by the construction -of the petitioner’s railway. These applications were denied, but on appeal to the General Term, the denial was considered to have been erroneously made, and the orders were reversed. And the proceedings on such applications, as well as of an additional application made by the petitioner to amend its petitions, were remitted to the Special Term for the action of that court upon them. By the amendments or changes in the petitions which the petitioner sought liberty to make., it was pioposed to restrict the proceeding to the right to obtain the use of the streets through, under, or above whicli the railway would be constructed, from the city of New York, and to adjust the compensation which should be paid to the city for this right or privilege. The parties appealing, and who were allowed to be made parties to .the proceeding by the determination of the General Term, objected to this change in the petitions for the reason that it was considered on their part that they might be injuriously affected by the proposed changes. But the court deeming the objections not to be well founded directed the petitions to be amended in the manner provided for by the order.' The important and controlling change which was allowed to be made was by substituting a new paragraph in place of paragraph nineteen contained in one of the petitions. The other changes were less important, being dependent upon this, and haying for their •object, the adaptation of other parts of the petitions to .this changed •condition.

As the petition existed at the time when the order was made, the statements of the nineteenth paragraph were, .that: “Your petitioner further alleges that the real estate, property, rights, franchises and interests which your petitioner now seeks to acquire, are all those certain pieces or parcels of land situated in the said city and” county now owned by the mayor, aider-men and commonalty of the city of New York, who reside in said city and county, which constitute the streets and portions of the avenues therein which are included in the routes and branches of said company, as finally adopted and completed by the -said board of engineers as shown by said surveys, maps and plans of said routes filled by them in the office of the State.engineer and surveyor of the city of Albany aforesaid, being the several routes which are hereinabove mentioned and which are required for the construction and operation -of an elevated railroad and of the tunnel, by your petitioner in such streets and avenues, respectively.” And the order, permitted the petitioner to substitute for it the paragraph.

“ That the sole object of this application is to ascertain, in accordance with the petitioner’s charter, the compensation which is to be made to the mayor, aldermen and commonalty of the city of New York in relation to the construction and operation of its railroads in and over the streets and avenues of the city of New York, which are included in the route and branches of said company, as finally adopted and completed by the said board of engineers, as shown by said surveys and maps of said route and branches, filed by them in the office of the State engineer and surveyor in the city of Albany aforesaid, being the several routes which are hereinabove .mentioned and which are required for the construction and operation of an elevated railroad by your petitioner in such streets and avenues, respectively, and that it does not seek to acquire any title in or to the land included within such streets or avenues or the interest of any person or corpor mns therein, or any interest in real estate.” It will be seen by a comparison of this paragraph with that contained in the petition, for which it was to be substituted, that it was not so fundamental or radical as to change the object or scope of the proceeding, or add another subject-matter to it. A prominent design disclosed by the original paragraph was to obtain the use of the streets, and a determination of. the compensation to be made for such use.

The amendment or substitute emphasized that object by wholly restricting the design to the acquirement of these results from the city only. The order for this reason did not exceed the authority conferred by the act made applicable to this company and authorizing amendments in the proceeding. By that authority the Court was invested with the power to amend any defect, or informality, in any of the special proceedings authorized to obtain property, rights, interest, or privileges required for the construction and operation of a railway. (2 R. S. [6th ed.], 526, § 22.) The case, Matter of the New York and West Shore Railroad Company [89 N. Y., 453), has been urged upon the court as not in harmony with this construction of the statute. But that decision proceeded upon a substantial change in the petition legally detrimental to the owner of the land intended to be acquired, and it was made after commissioners had been appointed to appraise the value of the property and the owner had served an answer to the petition. The proceeding had progressed to that point upon a valuable and important concession contained in the petition, which the court then held could not be stricken from it, to the injury and prejudice of the owner of the land. In these respects the case differs from that which now is before the court. No answer has been made to the petition, no commissioners have been appointed, and no concession or statement is proposed to be changed which may affect any right or interest whatever of either of the contesting parties. It is true that the application came at a very l^te day, and might have been well denied because of the laches of the petitioner. But as the case has been kept along for years in the manner in which it was presented to the court, by the consent of the counsel for the city, whq does not now object to the order, the court evidently deemed this objection,to be deprived of very much of its force by that circumstance. And it cannot be held, as the facts were made to appear, that it discriminated in this respect unjustly against the parties opposing the application.

Neither will the proceeding itself have that effect, for in the adjustment of the compensation to be made to the city no order or decision can be made which will in any manner affect the rights or privileges of either of the persons or companies intending to oppose the petitioner’s proceedings. Before it can move in the construction of its road it will still, under the authorities relating to this subject, be obliged to acquire all the interests and rights of adjacent or conflicting owners, and to make such compensation to them as they shall appear under the evidence to be entitled to receive. By the proceeding against the city alone to acquire the ■eight oí privilege of using the streets, no encroacnment whatever will be made upon tliose of adjacent owners or others having paramount rights, privileges, or franchises in such streets. These will remain wholly unaffected and undisturbed until the petitioner shall institute some other proceeding, or extend that which is now pending, so far as to include the inquiry into those rights and privileges, and the appraisement of the compensation to be made to the parties owning them, before they shall be deprived of them by the action of the petitioner.

The other amendments allowed to be made to the petition are not specially important. They consist in a substitution for the statement that the petitioner has not been able to acquire the title to the property rights and franchises described, the statement that it has not been able to agree upon the amount to be paid to the mayor, etc., or to pay it the sum required to be paid under the petitioner’s charter. And for the descriptive words of the real estate, property rights, franchises and interests to be acquired, and for all the pieces or parcels of land mentioned in connection therewith, inserting, that the company seeks to ascertain the amount to be paid to the mayor, etc., for the construction and operation of its railroads. The residue of the amendments or changes allowed to be made are to conform the title to this particular object, and the affirmances of the petition to the promotion of that design. In other words, the full scope and extent of the amendments are to present the case as one for the appointment of commissioners to determine the amount that shall be paid to the city for. the use of its streets, so far as that use may be required and appropriated in the construction and operation of the petitioner’s railroad. And while the statute which has been made applicable to the proceedings of the company does not expressly provide for this sole pursuit through the instrumentality of the petitioner, it has not forbidden the power of the court to permit that course to be taken. The act under which the petitioner was incorporated contemplates two important objects for which compensation shall be made, one for the real estate, property, rights, franchises and interests required by it for the construction and operation of its roads, or necessary depots, platforms, stairways, turnouts, switches, connections or approaches; and the other is the authority to construct and operate its railways along any street, avenue or public place in the city of New York, and for which compensation is to be made alone to tlie city, for such use and occupancy and the amount of which is to be determined in the same manner as damages to private property. (Chap. 833, Laws 1872, § 5.) And these several objects may as well be acquired under two petitions or separate proceedings, as to be comprehended and included in one. What the court has done is to permit a separation which is to include an investigation in which the city itself may be interested, and exclude from it for the present .all such further investigations as may relate to the other proprietary interests mentioned in the act, and which will become necessary for the acquisition of the company before it can proceed with the erection or construction of its railway.

The order from which the. appeal has been taken may well- be objected to as not having been so explicit in the preservation of the rights or interests of the other contestants as it should be. It should contain a clear and ample declaration that the proceedings upon and under the amended petition shall in no manner prejudice, or affect any other rights, interests or privileges, than those of the mayor, etc., in the streets intended to be used by the petitioner in the construction of its railroad. And that it shall not be assumed that any right or liberty to construct the petitioner’s railway shall be acquired against any or either of the other claimants, or persons or companies interested in the streets, or property to be used, than the the mayor etc., of the city of New York. And as so modified the order should be affirmed, without costs of the appeal.

Van Brunt, P. J., and Brady, J., concurred.

Order modified as directed in opinion and affirmed as modified, without costs.


text:
    In the Matter of the Petition of HENRY LEWIS MORRIS, as Trustee, etc., to File His Accounts, and to be Relieved from His Trusteeship.

      Contempt — ''token the failure of a trustee to pay oner money in his hands will constitute ove— afine to the amount required to be paid may be imposed— Code of Civil Procedure, secs. 2284, 2285 — quiere, as to the power to include costs and expenses in the fine — counsel fees cannot be included.

    Where a trustee has been adjudged to be guilty of a contempt, because of a failure to pay over moneys .received by him as trustee, in an order made upon an accounting, the court(may, under the authority conferred by section 2284 of the Code of Civil Procedure, impose as a fine the amount which he has received and failed to pay, and direct him to be imprisoned until he shall pay the fine, as provided in section 2285 of the said Code.
    It is not sufficient, to protect the party against proceedings and punishment under this section, ,to show that an action may on general principles be maintained for the same cause, but it must be shown to be a case where the law has specially prescribed an action as the means of redress.

      It seems that as the power to include the costs and expenses of the proceeding in cases where a fine is imposed by way of indemnity, which was conferred by the provisions of the Revised Statutes, is not in express terms conferred by that portion of the said section 2284 which provides for the imposition of a fine by way of indemnity, that it is doubtful whether any allowance can now be made therefor.
    That even if the power to include the complainant’s costs and expenses in the fine, provided for by another clause in the same section, in the case where no actual loss or injury has been shown, should be held to extend to cases in which a fine by way of indemnity is imposed, it does not authorize any allowance to be made for counsel fees.

      Sudlow v. Knox (7 Abb. N. 8., 412); People ex rel. Woolf Y. Jacobs (5 Hun, 428); affirmed, 66 N. Y., 8; Power v. Tillage of Athens (19> Hun, 165, 171) followed; Van Yalleenburyh v. Doolittle (4 Abb. N. C., 72) not followed.
    Appeal by William F. Haigli from an order imposing a fine upon him amounting to the sum of $11,460.18 and interest, together with the sum of $1,250 as the costs and expenses of the proceeding for a contempt, consisting in the violation of a previous order of the court.

      James R. Angel, for the appellant.

      James R. Marvin, for the respondent.
   Daniels, J.:

The proceeding was commenced by the petition of the trustee, Henry Lewis Morris, for the settlement of his accounts, and to be allowed to resign his position as trustee of an estate for the benefit of Elizabeth P. Haigh. By the trust she was entitled to the income of the trust estate during her life. Her husband had made notes upon which she was the indorser, which were held by' the Bowery National Bank of New York. On the 23d of July, 18S0, an agreement was made for the management of the affairs or business of the trust by the New York Wire and Wire Rope Company, and payment by it out of the income of the trust to the extent of $11,000 to the bank in satisfaction of this indebtedness. While the proceedings wére pending, Morris was discharged as the trustee, and the appellant was appointed in his place, and he afterwards acted as such under the trust deed. The company paid upon the notes the sum of $7,119.85 out of the undrawn profits of the trust. It failed after that to make any further payments. Mrs. Haigh died on the 6th of January, 1881, and Richard Hamilton was appointed the administrator of her estate. In the course of the proceedings a reference was ordered to take and state the accounts of the former trustee and of the trust estate. That reference was executed, and reports made by the referee which, with certain modification not requiring to be noticed, were confirmed by the court. It then appeared that there was due to Mrs. Haigh from the trust estate the sum of $17,339.95 less the sum already mentioned which had been paid to the Bowery National Bank, the balance then appearing being $10,222.81. Out of this balance it was determined that the residue of the indebtedness to the bank should be paid, and an order was made upon the referee’s report adjusting the state of the account and to which the appellant was a party. It was directed by the court that the said William F. Haigh, trustee, and the New York Wire and Wire Rope Company, whichever may be in possession of the trust estate, is hereby ordered and directed to ascertain and separate from the effects of the said trust estate the assets and property therein belonging to the said Eliza V. Haigh, deceased, at the date of her death, and to convert the same with all convenient speed into cash, and to pay therefrom the claim of the Bowery National Bank, mentioned in said report, so far as tbe same may be applicable, and any balance thereof, which may remain after the payment of said claim, he thereupon pay and deliver to Richard Hamilton, administrator of the said Eliza Y. Haigh, deceased, intestate. And it was for his failure to comply with this direction that he was fined by the order from which the appeal has been brought, and afterwards committed to prison.

After such failure the bank and the administrator of the estate of Eliza B. Haigh presented a petition to the court setting forth the omission of the appellant to comply with this direction, and alleging against him the misappropriation of the moneys applicable under the agreement to the payment of this indebtedness, and asking for his punishment for the alleged contempt arising out of such violation of the order of the court. The proceedings were referred to a referee, before whom two different hearings took place, and by the evidence given upon the hearings, it was made to appear that the appellant had settled with the Wire and Wire Rope Company and had received notes for this balance, together with interest upon it, and had used these notes in the purchase of a majority of the stock of the company. The notes were afterwards paid by the company, which was shown to have been solvent at the time when the settlement took place, but no part of their proceeds was paid either to the bank or the administrator.

The appellant claimed by way of excuse that he was obliged to hypothecate the notes in this manner through an understanding with the officers of the company at the time when they were received, but that has been so far contradicted as to deprive his statement of all weight and effect as evidence. The statement of two of the witnesses is to the effect that the settlement was entirely voluntary without any condition being exacted on the part of the company that the notes should be used as security for the payment of the purchase-price of the stock. The stock itself was not purchased of the company, but from another person having possession of the shares, and claiming and appearing at the time to be their owner. Taking the notes in this manner was not strictly a compliance with the direction of the court, but as the company was solvent and afterwards paid them, no injury resulted from this act to either of these claimants. The proceeds of the notes would have supplied the trustee with all the funds that were required to comply with the order and satisfy and extinguish the indebtedness due to the bank, and to pay the balance remaining due to the administrator of the estate. And using the notes for another and different purpose and thereby depriving himself of the power to appropriate their proceeds to these objects, was a violation of so much of the order as has already been mentioned.

It has been objected that the order was uncertain in the obligation which it imposed by reason of the direction being that the trustee, or the company, whichever might be in possession of the trust estate, was ordered and directed to ascertain, and separate it, etc. But the trustee can derive no benefit from this uncertainty in the order, for he- proceeded according to its mandate, and made an adjustment with the company, which, in effect, did separate the effects of the trust estate and its assets from the property of the corporation. Those effects he in this way actually received and the assets belonging to the intestate were also included in the notes. And after having proceeded to that extent, under the order, and acquiring the property to which it related, he deprived himself from afterwards objecting to this direction as being of too uncertain a character to require him to observe it. When he had proceeded so far and obtained the securities upon which the money was after-wards realized, by which he could have discharged the obligations imposed upon him by this portion of the order, his dufy was absolute to comply with its directions for payment. He failed to discharge that duty and it was for that failure, and after an ample opportunity afforded to 'him for a hearing, that the fine was imposed upon him for which he lias been imprisoned. This fine amounted in the aggregate to the sum of $11,469.18, and it included no more than the $10,222.81 for which notes were received by him, and interest upon that amount down to the 10th of January, 1887, when the order imposing the fine and directing his commitment was made. The proof was ample, establishing the fact that the petitioners had sustained loss and injury to this extent by this misconduct of the trustee. There was then remaining unpaid to the bank the sum of $9,875.76 and the balance to the administrator of $2,093.72. They were deprived of these sums by the misconduct of the trustee, and the court was accordingly warranted by section 2281 of tbe Code of Civil Procedure, in imposing a fine to tliis extent upon tbe trustee for tbe violation and disobedience of its preceding order, wbicb at all times after it was made remained in full force and effect.

This order was not deficient in the requisite adjudication that tbe misconduct of tbe trustee “was calculated to, and did defeat, impair, impede and prejudice' a right or remedy of .the petitioners,” 'for it contained that express adjudication. And tbe evidence taken, before the referee and contained in the affidavits, together with bis report, fully maintained this conclusion of tbe court. And that was sufficient, by way of proof of damages to secure tbe support of this section of tbe Code as well as to comply with tbe authorities decided upon this subject. (Tinkey v. Langdon, 60 How., 180; De Jonge v. Brenneman, 23 Hun, 332; Clark v. Bininger, 75 N. Y., 344.)

This section of tbe Code of Civil Procedure has authorized tbe imposition of a fine sufficient to indemnify tbe party for tbe actual loss or injury proved, when tbe case is not one where it has been specially prescribed by law that an action may be maintained to recover the damages for such loss or injury. There is no special provision of law providing for tbe maintenance of an action to recover tbe damages arising in this case, and it is not sufficient to protect tbe party against proceedings and punishment by way of contempt that an action may, on general principles, be maintained for tbe same cause. It is clearly evinced by this section of tbe Code that proceedings by way of contempt and tbe right to maintain an action may be concurrent, for it has declared that tbe payment and acceptance of tbe fine will constitute a bar to an action by tbe aggrieved party to recover tbe damages for tbe loss or injury. To legally answer the proceeding because of the right to maintain an action for damages, it must, according to the preceding portion of the section, be a case where the law has specially prescribed an action as the means of redress. That is not this ease, for no special provision has been suggested or found restricting the party to an action in a case of this description. The misconduct of the trustee was such as to include a clear and palpable violation of the direction contained in the order made for the benefit of the petitioners, and it was attended with such a degree of loss and injury to them as will be no more than compensated by the fine which the court imposed Upon him.

A more serious difficulty is presented by the appeal arising out of the imposition of the sum of $1,250 upon the trustee by way of costs and expenses. The section of the Code to which reference has been made has not by its language authorized such an addition to the fine itself. It has provided for no more, where actual loss or injury may be established, than the imposition of “ a fine sufficient to indemnify the aggrieved party.” The court has not been directed by anything contained in the section to add to that fine a further amount to defray costs and expenses. A power to award costs has been supplied by the succeeding portion of the section, but in the language creating it the authority by its language has been applied only to the class of cases where no actual loss or injury may be shown, and where the court may punish the party in contempt by a fine not exceeding the sum of $250, together with the amount of the complainant’s costs and expenses.

In this respect the directions differ from those contained in the preceding law, for that provided for the imposition of a fine by way of indemnity for the actual loss and injury, including also the costs and expenses of the proceedings.

It was further provided where no actual loss or injury might be established, as it has also been by this section of the Code, that there the fine should not exceed $250 over and above the costs and expenses of the proceedings. In the compilation made by the Code, it will, therefore, be seen that a material omission has been made from the statute, as it was enacted and made a part of the preceding law. (3 R. S [6th ed.], 841, §§ 20, 22.)

The power contained in the Code to award costs has not been expressly given as part of or in addition to the authority to impose the fine to indemnify the loss or injury. But the power to fine in that case has been expressly limited to the loss or injury caused by the misconduct It prescribes the extent of the punishment for the act of contempt. And its language delegating that power was so employed in the Revised Statutes. If a larger signification could be given to its language then there would have been no necessity for providing as was then done, that the costs and expenses might be added to such fine.

In framing that statute this addition was expressly made to it. And that discloses the understanding of the legislature to have been that without it the costs and expenses could not be added to the fine for indemnity. As it was necessary then, it seems to be equally so now, for this section of the Code in providing for the fine by way of indemnity has so far made use of the same language as was contained in the preceding law.

It may be. by great liberality of construction, if that shall be allowable in the class of cases in which, a party may be punished for a contempt, that the provision in this section of the Code for costs and expenses, should be extended so far as to include the class of cases provided for by the preceding portion of the section where actual loss and injury has been produced. There certainly is no good reason why the costs and expenses should not in those eases be added to the punishment of the party in contempt. And, perhaps, as broad a construction as that should be given to this section of the Code even at the risk of straining the language used by the legislature. But this case does not require a definite determination of this point, for this authority, if it can be held to exist, has been here exceeded:

The objection has been made by the counsel for the tiustee that no authority existed for the allowance of a counsel fee, and in that he is supported by the decided cases. It is true that a different view was taken of the provisions of the Revised Statutes concerning the allowance of costs in these proceedings in Van Valkenburg v. Doolittle (4 Abb. [N. C.], 72). But in that decision the prevailing authorities affecting- this subject were not brought to the attention of the court. If they had been, a different decision upon it must have been made, for it was held by the Court of Appeals in Sudlow v. Knox (7 Abb. [N. S.], 412), that a counsel fee could not be allowed as part of the cost and expenses of such a proceeding. And that decision was followed in People ex rel. Woolf v. Jacobs (5 Hun, 428, affirmed, 66 N. Y., 8); and, also, in Power v. Village of Athens (19 Hun, 165, 171). These cases, it will also be remembered, were decided under the Revised Statutes which contained an express provision allowing the imposition of costs and expenses. But they will be applicable to and determine the effect of this section of the Code, if it shall be construed to have so far preserved the authority of the court as to permit the Costs and expenses of the proceedings to be added to the fine imposed by way of imdemity for actual loss or injury. They certainly, however, will justify no more than that, and that falls very far short of sustaining the allowance included in the order. To that extent the trustee has legal ground for complaint. No more, in any view, should have been added to the fine for the indemnity of the parties, than the legal costs and expenses of the proceedings. The order should, therefore, be modified by reversing so much of it as directs the payment by the trustee of this sum of $1,250.

To warrant the allowance of any sum for costs and expenses they should have been legally ascertained and inserted in the order before' it was entered and the trustee was committed to prison. It is too late to rectify that part of the proceedings now, and the order should, therefore, be so far only affirmed as to include the fine imposed upon the trustee. For the non payment of that he was properly committed to prison under the authority of- section 2285 of the Code of Civil Procedure. For it has directed where the misconduct consists of an omission to perform an act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it and paid the fine imposed. By the final order what he is required to do is to pay the fine itself, which will perform the act or duty he omitted to perform, and in which his misconduct consisted. But as the order is affirmed in part only it should be without costs of the appeal.

Van Brunt, P. J., and Bartlett, J., concurred.

Order modified as directed in opinion and affirmed as modified without costs.