author: Beckwith, Ch. J. Hatch, J. (dissenting).

text:
    In the Matter of the Application of the City of Buffalo to take the Fee of the Terrace.

      (Superior Court of Buffalo, General Term,

      Filed June 16, 1891.)

    Eminent domain—Declarations of common council, as to intended use OF PROPERTY CONDEMNED, CONCLUSIVE.
    A proceeding by the common council, in conformity with the provisions of the' city charter, for the purpose of acquiring the fee of one of the streets of the municipality, wherein it was stated and declared that the lands were to be taken “in fee for public streets,” is conclusive upon the courts that the land is to be used as declared, and owners will not be allowed upon the application for appraisers to introduce evidence to show that the common council intended to acquire title for the benefit of a railroad, etc.
    (Hatch, J., dissenting.)
    Appeal from an order of the special term appointing commissioners to ascertain and report the just compensation to be made to the owners and persons interested in the lands proposed to be taken.

      John G. Milburn, for app’lt; George M. Browne and William F. Mackey, for resp’t
   Beckwith, Ch. J.

—This is a proceeding instituted by the common council of the city of Buffalo to take the fee of the lands within the boundaries of the street called The Terrace,” formerly “ Busti Terrace.”

By the charter the city is empowered to take the fee if the place has been a public street more than ten years. The appellant is the owner of a lot of land fronting two hundred and fifteen feet on the Terrace, and he owns the fee to the middle line of the street. He appeared by counsel on the application of the city for the appointment of commissioners of appraisal, and “ by his •answer, alleged that the city was not seeking to acquire the lands in question for a street, but to enable it to carry out a contract between the Grade Crossing Commissioners and the New York Central & Hudson River Railroad Company, which, he alleged, was in excess of their powers and void.” The answer contained the further specific allegations “ that the said contract provided, amongst other things, for the excavation by said railroad company of a deep cutting through and along said Busti Terrace, and the •construction therein of railroad tracks; that in truth and in fact this proceeding is not instituted by such applicant in good faith, nor for the purpose of acquiring the fee of said premises for public streets, but solely for the purpose of enabling compliance with the said illegal and unauthorized contract so made by the said commissioners.” The grade crossing commissioners were aboard created by statute to make' arrangements and agreements on behalf of the city with railroad companies for crossings of public streets less dangerous to life than crossings at grade, as heretofore existing, and it was claimed that the contract referred to was void because in a form not authorized by statute. On objection by the city attorney to the sufficiency of the answer, the court overruled it and refused to receive evidence in support of its allegations. Brom this decision of the judge at special term the appeal is taken. It is suggested by the appellant’s counsel that the ground upon which this decision was made must have been that the,resolution of the common council which declared the purpose was conclusive ; and therefore he claims that the ruling was erroneous.

It is contended on behalf of the appellant, with a citation of cases supporting the contention, that the court had- jurisdiction to inquire whether the purpose for which the fee was to be taken was a public street or not, and that it was error therefore to exclude the appellant’s proofs upon that subject. “We maintain,” reads the brief, “ that even if the prelimary steps were on their face regular, commissioners should not have been appointed, if the-fee of The Terrace was not being acquired for a street, but for another purpose, and that we were entitled to a hearing on that issue.” And in another part of the appellant’s printed argument he says “the court in this proceeding should have allowed us to show the real purpose for acquiring the fee of the lands in question, and if ■ it was an unauthorized purpose it should not have made the order-appealed from.”

It is to be observed that the proceedings conducted by the city were regular, and in conformity with the provisions of the city charter, and that the resolutions of the common council stated and declared that the lands were to be taken “ in fee for public streets.”

Undoubtedly the court has power to make a preliminary inquiry whether the purpose or use for which land is proposed to be taken is a public use, and by proofs aliunde if necessary; and so, notwithstanding a legislative declaration that the object or use is a public one. Matter of Niagara Falls, etc., R. R. Co., 108 N. Y., 375 ; 13 N. Y. State Rep., 690.

But notwithstanding the apparent correctness of the appellant’s, deduction, that the court, having the jurisdiction to inquire whether the purpose for which land is taken is a public use, ought to have exercised its jurisdiction in this case, and heard the appellant’s proofs in support of the charge that the purpose of the city in taking the fee was not in fact for a public street, still the contention of the appellant is, I think, an erroneous one, and belongs, as it seems to me, to that “ multitudinous body of erroneous reasonings ” where the error originates in and is continued through the argument by the ambiguous use of terms. Here, in legal view, the purpose for which the land is to be taken is the purpose for which, in fact and law, it will be taken, at the-conclusion of the proceedings as a legal consequence of them. The declared purpose is to take the fee for a public street.

The proceeding conducted regularly will result in a taking of the land, authenticated by the record, for use as a public street. But it is contended by the appellant that the real purpose is to-use the land eventually, and necessarily after the city has acquired the title by this proceeding, for railroad purposes, to allow a deep cut to be made through the street for railroad tracks. That purpose is quite a different thing from the purpose which -is the legal result of the proceeding. The latter is the purpose for which the land will be taken. The legal title which the city will acquire will be held for that purpose; the city will unavoidably become vested with and will hold the title in trust for the uses of a public street.

The other purpose of which the appellant speaks is plainly tne ulterior use to which, it is alleged, the common council intend to appropriate the land after the city has acquired the fee. That is the purpose that is in the mind of the legislative authorities as a mental condition. It is quite a different thing from the objective situation into which the title of land is to be placed.

In respect to the propriety of taking the fee of a street, the common council is vested with legislative powers. The legislative power is independent of the judicial power, and the motives and mental processes of legislative bodies, if the result of their proceedings must be legal, cannot be inquired into by the courts. Milhau v. Sharp, 15 Barb., 193.

If this proceeding is carried through regularly to a conclusion, when the report of the commissioners shall be confirmed, the city will have acquired the fee for the uses of a public street. That a street is a public use does not admit of discussion. But that a public street is not a public use is not what the appellant wants to show; but that is as far as the court has jurisdiction to go.

If the common council, conceiving that it would be for the interest of the people, had "instituted proceedings to take lands for the maintenance and use of the Panorama of the Battle of Gfettysburgh, an answer that that was not a public use would not have been so plainly demurrable.

In the appellant’s contention it is assumed correctly as a primary proposition of law that the court may inquire whether the purpose for which land is to be taken is a public use, but as the argument proceeds, an ulterior purpose existing in the mind of the legislative body is substituted for that purpose which is the declared ■object of the proceeding, and respecting the character of which the court has judicial authority to inquire. Lands may be taken only for public use, and it follows clearly that it is within the province of the courts to determine whether there is agreement or disagreement between the fact and the rule of law; whether the use for which it is declared the lands are to be taken is a public use. That is a judicial process quite different from an investigation as to what fraudulent or illegal purposes are existing in the minds of the members of the legislative body. It is essential to a legal exercise of the power of eminent domain, at least as evidenced by the universal practice, that the purpose or object for which private property is taken should be declared, and the fact, therefore, which falls under judicial cognizance is whether the use for which it is declared the property is to be taken, is a oublic use.

For reasons thus imperfectly stated, I am of the opinion that the order apoealed fromjhould be affirmed.

Hatch, J. (dissenting).

—The lands proposed to be taken consist of the fee of a certain open space in the city of Buffalo called The Terrace. It has ior more than ten years last past been used as a public street, the fee to the same residing in the owners of abutting property, of which Pratt, the appellant is one. The: proceedings instituted by the city of Buffalo were duly taken under and in pursuance of its charter, are in all respects regular, and conferred jurisdiction upon the court to entertain the same.

Upon application for the appointment of the commissioners, Pratt appeared and made preliminary objection, based upon irregularity in the papers, and that the law under which the proceedings were instituted had been repealed. These objections being overruled, he then sought to raise an issue of fact for the determination of the court, and to that end tendered an answer alleging, among other things, that certain persons appointed commissioners, under and by virtue of an act of the legislature, providing for the relief of said city, and to change and regulate the crossing and occupation of streets, etc., in said city by railroads,, were authorized to enter into a contract, on behalf of the city, with any railroad or other company using the streets, for relief from their present obstruction by such use, in pursuance of a certain plan theretofore recommended by a commission of engineers, and then on file in the office of the city engineer. That, said commissioners, claiming to act for the city, entered into a contract with the Hew York Central & Hudson. River Railroad Company, ostensibly in pursuance of the powers conferred by said act, but that, in fact, such contract was not for the relief of said city, was not in pursuance of the said plan, and not within, the authority conferred by said act, and is void; that said contract provides for a deep cut through the Terrace, and the laying of railroad tracks therein; that this proceeding is not. taken in good faith, nor for the purpose of acquiring the fee of said premises for public streets, but solely for the purpose of enabling compliance with the said illegal and unauthorized contract made by said commissioners. The tender of the answer was refused, proof of the facts thereof denied, and the commissioners were appointed.

This ruling proceeded upon the theory that the legislature having delegated to the city power to acquire the fee of such streets, the proceedings being regular and the facts essential to a proper case for the exercise of the power appearing therein, it was conclusive upon the court and that the owner could not be heard to contradict or overthrow it. This presents the only question argued upon this appeal. The city is authorized by its charter to take in-fee for public streets, alleys and squares, the lands situate within the boundaries of such places, which have been or shall have been used as public streets, alleys or squares for more than ten years. Charter, title 8, § 22.

The proceedings to acquire title are the same as in other proceedings authorizing the exercise of the power of eminent domain by said city, except that the only notice required is that of publication. íd., § 23.

When the necessary steps have been taken, the city is required to make application to the court for the appointment of commissioners. . “ Such court shall hear such application, and may appoint three commissioners to ascertain the just compensation to he made for such lands.” Id., § 5.

By § 22, it is seen that the city is only authorized to take the fee for a specified purpose, i. e., for public streets, etc. Any attempt, therefore, to take the fee for any other purpose must fail for want of authority to support it. No difference of opinion can arise as to this. But the question is, who determines this fact ? Is the legislative declaration conclusive, or is such declaration the subject of review by the court ? If the declaration of the body authorized to institute the proceedings should show a purpose outside the authority granted, then it would, doubtless, not be questioned, but that it would be the duty of the court to refuse to appoint commissioners.

If, in fact, the body vested with the power to institute the proceedings should do so maliciously and corruptly for the purpose of inflicting injury, or for the purpose of taking property ostensibly for one purpose, lawful and authorized, but really for the purpose of vesting it in another or the right of its use in another, could not such fact be shown to defeat it, although the proceedings were upon their face regular ? If not, then the provision of the charter that the court shall hear the application, and may appoint the commissioners, is limited to a scrutiny of the papers to determine whether they are regular upon their face and prima fade show a proper case, but the owner is without right to contest the application, and the court is without power to aid him. That this construction of the respective powers can he used to the great detriment and injury of owners of the fee of a street, with the right of easement in the public, is clearly shown by the opinion of Beckwith, Ch. J., In the Matter of Taking the Fee of the Terrace. (Mss. opinion not yet reported.) where it is clearly and ably demonstrated that the owner of the fee burdened with an easement is entitled to compensation for additional burdens placed thereon to his damage and injury, while with the fee taken this burden may be granted by the city for such use and the owner left without remedy. I do not think such is the construction; on the contrary, the construction to be given this section is like that involved in Matter of City of Buffalo, 17 N. Y. State Rep., 373, where the language was “ the court shall confirm the report,” and the court held that the judicial function of examination and determination was not excluded, but it was to be exercised; so here the language that the court “ shall hear such application ” carries with it all necessary powers for the exercise of the judicial functions, not alone upon the case presented by the applicant, but also upon the case presented by the owner, and determine, first, whether the proceedings are in compliance with the statute, and second, whether the property to be taken is taken, in fact, for an authorized public purpose, and if such latter fact be contested, then the court shall hear proof on such issue and determine such application. It is conceded that this conclusion is sustained by authority.

In Matter of Niagara F., etc., Co., 108 N. Y., 383; 13 N. Y. State Rep. 690, it is said by Judge Andrews: “ The general principle is now well settled, that when the uses are in fact public, the necessity or expediency of taking private property for such uses by the exercise of the power of eminent domain, the instrumentalities to be used and the extent to which such right shall be delegated, are questions appertaining to the political and legislative branches of the government, while,on the other hand, the question whether the uses are in fact public, so as to justify the taking in invitum of private property, therefore, is a judicial question to be determined by the courts.” , In this case the court looked beyond the purpose of the articles of association, which showed upon their face compliance with the law, authorizing a charter, and the exercise of the power of eminent domain, and determined, as a fact, that the enterprise was not a public one, although the legislature had so declared it.

Judge Rapallo, in speaking of the cases sanctioning the right of the legislature to take the property of an individual without his consent says: “ Nor do they dispute the power and duty of the courts to determine whether the use is public or private, for the purpose of ascertaining whether or not the action of the legislature is valid. In the Matter of Townsend, 39 N. Y., 174, it is conceded that even an express declaration by the legislature, that the use was public, would not be controlling. Matter of Deansville Cemetery Ass., 66 N. Y., 572.

The conclusion was reached, in that case, that if the purpose for which the property was taken, was, in fact, for a public use, then it rested with the legislature, either of itself or to delegated bodies, to exercise the power; but whether the use was public or private, was to be' determined solely by judicial inquiry.

In Matter of Ryers, 72 N. Y., 1, Judge Folger said : “ It is still for the judiciary to see to it * * * that the purpose to be reached is public. And with all that has been said in oral argument and presented upon the printed points, no facts appear upon the record, nor does there appear to have been any attempt to show them, to the end that the purpose of the work contemplated in this case is not public.” This language seems to imply that the right exists to attack proceedings, taken in pursuance of a statute authorizing the exercise of the power of eminent domain, where the proceedings upon their face are regular, and declared to be for a public purpose. This could only be done in that case by proof aliunde the record, but facts, tending to establish that, in fact, the purpose for which the proceeding was instituted, was not a public one, would be competent for the court to take judicial cognizance of in determining such question. If it was proper in that case I see no reason why it is not equally so in every other, where the power is sought to be exercised.

In Matter of Application of Jacobs, 98 N. Y., 111, Judge Earl said : “ The legislature may condemn or authorize the condemnation of private property for public use, and it may, in the exercise of its discretion, determine when and upon what property the power of eminent domain may be exercised ; but its exercise is not beyond the reach of judicial inquiry. Whether or not a use is a public one, which will justify the exercise of the power, is a judicial question.”

These authorities seem to firmly settle that the power cannot be exercised except for the specified purpose, and that whether it is for the specified purpose or not, does not rest upon the declaration of the legislature or its authorized body alone, but in each case it rests upon what the fact is; and if, in fact, the proceeding is not for a public purpose, then it is the duty of the court to so declare it, and refuse its sanction. Here the answer tendered, and the proof offered under it, which we must assume would have been made, tends to show, as a fact, that the fee of this street is wanted, not for a street or for street purposes, but to aid in carrying out an illegal agreement, void under the act authorizing it, and for the purpose of enabling a railroad to make a deep cut through this street.

This, if true, shows the property is not intended for the public use claimed, to wit: a street, but for unlawful and private uses. It may be entirely true that the end sought by the city is to make the streets, and the one of which the fee is sought to be taken, more available for street purposes, but upon these subjects and issues thus raised the owner is entitled to be heard and have the judgment of the court based thereon. His claim is, that under the guise of the right of eminent domain, his property is being taken for a purpose not authorized by the delegated power, but for one entirely different. If this be so, then he is entitled to the judgment of the court establishing it. The law does not tolerate the disposition of property by indirection where it cannot be directly done. Thus, under the guise of the taxing power a person may not be despoiled of his property. Weismer v. Village of Douglas, 64 N. Y., 91. And under the claim of police regulations, the liberty and property of the citizen may not be arbitrarily invaded or taken away. Matter of Jacobs, 98 N. Y., 98. So here the declaration of the fact by the council is not conclusive, but may and should be inquired into upon the issues presented. It is farther urged that the charter does not contemplate or provide for the serving of an answer, but it does provide for a hearing, and upon the presentation of any matter in answer to the claim of the city, which properly raises an issue, the court can take proof pertinent to the issue thus raised. Under the drainage act, no provision is made for any particular form of practice, yet, Matter of Ryers, supra, contemplates that proof would be proper upon the issue of whether the improvement was for a public purpose or not. The same is true with respect to proceedings under the general railroad act upon the coming in of the petition, when cause may be shown against it, but upon what papers or proof the statute is silent, yet no difficulty is experienced in disposing of the issues raised. So, here the proceedings upon the one side and the answer upon the other presents an issue sharply defined, and it is this issue upon which the court is to take proof and determine whether a proper case is presented for the appointment of commissioners.

The conclusion is, therefore, reached that the owner was entitled to be heard upon the questions raised, and that it was error to reject the answer and proof. The order appointing the commissioners should be vacated and set aside, and a hearing ordered upon the issues raised.

Order affirmed.

Titus, J., not sitting.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    Samuel I. Arkush, Resp’t, v. James Hanan et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Master and servant—Discharge of employe—Evidence of justification.
    In an action by an employe for an alleged wrongful discharge, the defendant, in justifying the discharge, is not confined to the cause originally assigned, but may show that the discharge was justified by any sufficient cause.
    2. Appeal—Review—Settlement of case.
    With the disallowance of proposed amendments to a case by the court below, the controversy with regard to their subject matter is ended. The appellate court has nothing to do with the reasons which actuate a judge in his allowance or disallowance of amendments to a proposed case, and such reasons cannot be considered upon the event of an appeal from the judgment.
    Appeal by the defendants from a judgment in favor of the plaintiff rendered upon a verdict at circuit, and from an order denying a motion for a new trial; also from an order directing that certain amendments which were disallowed (together with an explanatory memorandum) and certain affidavits used in connection therewith be filed, added to the case and printed with it.

      Samuel Greenbaum, for resp’t; William J. Gaynor, for app’lts.
   Barrett, J.

—The order last referred to in the above statement should be reversed and the entire supplement to the case, directed by this order to be printed, should be expunged from the record. With the disallowance of the proposed amendments the controversy with regard to their subject matter was ended. The appellate court has nothing to do with the reasons which actuate a judge in his allowance or disallowance of amendments to a proposed case, and such reasons cannot be considered upon the merits of an appeal from the judgment. As to the affidavits of the attorneys, they simply encumber the record. We. must take the case as settled, and that only, and dispose of the appeal upon the record as thus made up. We now come to the merits of the main appeals.

The defendants are manufacturers of boots and shoes. Prior to the 14th day of December, 1887, they decided to open a retail store, and on that day they entered into an agreement with the plaintiff whereby he was to act as superintendent of this retail store until the 1st day of February, 1891. In the latter part of December, 1888, the defendant discharged the plaintiff, and this action is because of that act. In their answer the defendants justified their discharge of the plaintiff upon three grounds.

First That he treated their customers in a rude and offensive manner, and spoke to them arbitrarily and disrespectfully, thereby injuring the business of the defendants.

Second. That he treated one Acton, a customer of the defendants, with especial rudeness, going so far in a dispute which he had with this person as to call him a cur and to tell him to get out of the store.

Third. In refusing to give the defendants any explanation of his conduct in thus ill-treating Acton.

The case seems to have been tried upon the theory that because the defendants, in dealing with the plaintiff, specified this latter offense as the ground of discharge, they could not afterwards justify their act by showing other misconduct This is not the rule which governs in actions of this character. In justifying the discharge, the defendants were not confined to the cause originally assigned. They could show that the discharge was justified by any sufficient cause. Harrington v. First National Bank of Chittenango, 1 Thompson & Cook, 361, citing Cussons v. Skinner, 11 Mees. & Wels., 161; Ridgway v. Hungerford Market Company, 3 Ad. & Ellis, 171; Baillie v. Kell, 4 Bing. N. C., 651; Green v. Edgar, 21 Hun, 414; Wood’s Master & Servant (2d ed.), § 121. As was said by Littledale, J., in Ridgway v. Hungerford Market Company, supra: “If a justifying cause exists, the master may assign it whenever the action is brought.’’

The case here turned entirely upon the right to discharge the plaintiff because of his refusal to explain why he had ill-treated Acton. The defendants, however, offered to prove the misconduct specified in the “ first ” and “ second ” grounds above enumerated, but their testimony on these points was ruled out and an exception duly taken. We think this was error. Without passing, therefore, upon the other questions presented, as to some of which we have serious doubts, the judgment and order denying a motion for a new trial should, for the error pointed out, be reversed and a new trial granted, with costs to the appellants to abide the event. The order directing certain papers to be added to the .case and printed should be reversed, with ten dollars costs and the disbursements of printing the same.

Van Brunt, P. J., and Patterson, J., concur.


author: Van Brunt, P. J.

text:
    The People, Resp’ts, v. The N. Y. City Underground Railway Company, Impleaded, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Pleading—Complaint—Demurrer to—Proper remedy.
    When a complaint does not state a cause of action and fails to demand any judgment against one of several defendants, the proper remedy of . such defendant is to interpose a demurrer to the complaint and not a motion to strike out.
    Appeal from order denying motion to strike out the complaint herein as against the appellant and to dismiss the case as to said appellant upon the ground that the amended complaint fails to demand any judgment against the company, and further, because the company has no interest in this case.

      G. Hoadley, for app’lt; D. J. Dean, for resp’ts.
   Van Brunt, P. J.

—It seems to us that the answer to this motion is very simple. If a judgment is entered which is' not authorized by law, having reference to the prayer for relief in this action, the defendant appellant has its motion to set it aside, and is amply protected.

If it is sought to sustain this motion upon the ground that no cause of action is alleged against the defendant, appellant, then the remedy of such defendant is very simple, viz.: to interpose a demurrer to the complaint and have the issue of law tried in the usual way.

The order appealed from should be affirmed, with costs.

. Barrett and Patterson, JJ., concur.


author: Per Curiam.

text:
    Stephen P. Tregoning, Resp’t v. Richard F. Tregoning et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Deed—Construction of—Vested remainders.
    A deed read “ and the parties of the first part hereby grant and convey said premises in fee to said children of P. and M., subject to the life estate of said M. as above stated.” Held, that the children of P. and M., who -were alive at the delivery of the deed, took vested remainders in fee.
    , Appeals from interlocutory judgments of the special term, overruling demurrers interposed by the defendants, John C. Devine and Michael J. Devine.

      Abram Kling, for app’lts ; James A. O'Gorman, for resp’t.
   Per Curiam.

—We think it entirely clear that the children of Patrick and Margaret Devine, who were alive at the time of the delivery of the deed in question, took vested remainders. The language of the deed admits of no doubt upon this head. Nothing could be plainer than the expression “ And the parties of the first part hereby grant and convey said premises in fee to said children of Patrick and Margaret Devine, subject to the life estate of said Margaret Devine as above stated.”

The cases are all one way on this question, and the opinion of Lawrence, J., at special term is entirely satisfactory.

The interlocutory judgments appealed from should be affirmed, with costs.

Yan Brunt, P. J., Patterson and Barrett, JJ., concur.


text:
    James S. McQuillen, App’lt, v. The Real Estate Exchange & Auction Room, Limited, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Read Estate Exchange—Stands cannot be sold or assigned.
    Rule 8 of the “ Real Estate Exchange & Auction Room,” of New York city, provides that “no auctioneer, shall be disturbed in the occupany of the stand, the choice of which has been purchased by him, for the term of five years, provided he pay such annual rent as he be charged therefor and remains a member of the Exchange and an auctioneer.” Held, that under the rule, members who have sold their stock, cannot sell or assign their stand, even to other members.
    Appeal by the plaintiff from a judgment of the special term, dismissing the complaint on the merits, with costs.

      Strong & Cadwalader (John L. Calwalader, of counsel), for resp’t; Truax & Crandall, for app’lt.
   Barrett, J.

—There is an elaborate discussion in the briefs submitted upon this, appeal of the question whether Levy, the plaintiff’s assignor, took a lease from the defendants or a mere license. In our judgment, it is not necessary to decide this question definitely for the reason that even if the agreement in question be treated as a lease, the plaintiff must fail. At the same time, we must confess that our judgment inclines in favor of the plaintiff’s contention on that head so far, at least, as to hpid. that Levy, by the transaction disclosed, secured a vested right of occupancy with regard to the stand in question which equity would enforce. The real question, however, is as to the precise character of that vested right. We think, upon the whole, that it was personal and non-assignable. A brief statement of the facts will support this conclusion.

The defendant is a corporation organized as a real estate exchange. It has a great many members, and on its premises there is a general auction or salesroom with a number of special stands for the use of auctioneers who are its members. These stands áre of considerable value, and their possession, confers upon the occupants special privileges not enjoyed by members generally. • Un-. der the defendant’s rules, the choice of these stands is sold at auction and licensed auctioneers only, who are 'members of the exchange, are allowed to compete therefor. There is, however, also a general stand, called the president’s stand, from which sales can be made by auctioneers who have not rented any of these special stands.

The rule of the exchange with regard to the special stands is as follows:

“ 8. No auctioneer shall be disturbed in the occupancy of the stand, the choice of which has been purchased by him, for the term of five years, provided he pays such annual rent as may be charged therefor and remains a member of the exchange and an auctioneer.”

In April, 1887, the defendant published the following notice with regard to two of these special stands:

“ Notice is hereby given that the choice of the stands now occupied by Messrs. William Kennelly & Bro., and Smith & Carrigan at the Real Estate Exchange and Auction Room (limited), will be submitted to competition at the Exchange, on Monday, the 18th insti, at 3.30 P. M. on the following terms:
“ The purchaser of such choice will be entitled to occupy the stand for a term of five years, from the 1st of May, 1887, provided that he pays such annual rent as may be charged therefor, and remains a member of the Exchange and an auctioneer.
“B. Hardwick, Manager."

Levy’s firm was the highest bidder for the choice of one of these stands, and upon their payment of the agreed premium they received from the defendant the following receipt:

“New York, April 18, 1887.
Messrs. L. Tannebaum & Co., 92 Spring street, to the Real Estate
Exchange and Auction {Limited).
To choice of stand sold on terms of notice.......... $860 00
“ Paid, April 19,1887.
“ The Eeal Estate Exchange and Auction Boom (Limited.).
uPerE. S.K”

Under these circumstances, Levy went into occupancy of the stand which he chose, and he paid, directly and in advance, the annual rent fixed by the defendant for the years commencing May 1, 1887, and May 1, 1888. In the spring of 1889, Levy transferred to the plaintiff all his right, title and interest in the stand, and the plaintiff’s firm gave the defendant their check for the rent falling due on the 1st day of May, 1889, receiving, however, a receipt made out in the name of Levy. On the 5th of June, 1889, Levy transferred his stock in the defendant corporation, and on the 7th day of the same month he died. Levy was an auctioneer and a member of the exchange down to the time of the transfer of his stock, and as such he signed an agreement to abide by the bylaws of the corporation and the rules and regulations established by the board of directors for the government of the exchange and auction room. The plaintiff is also an auctioneer and member of the defendant corporation.

Upon this state of facts. it seems to us very clear that, however we may define Levy’s rights, he took subject to three conditions. First, the payment of the annual rent; second, continued membership ; and, third, continuance in the business of an auctioneer. These two latter conditions are entirely inconsistent with the assignability of his right of occupancy. They necessarily imply the purely personal character of the right which the exchange conferred upon him. Thus, the transaction was in strict accordance with the eighth rule of the exchange, which we have already quoted, to which rule Levy and the plaintiff had both given their assent in writing.

This rule was not only reasonable, but essential to the preservation of the exchange, and the protection of its members. For it would be destructive of such institutions if persons who never were members, or who, having been members, had ceased to be such, were permitted under any pretense to utilize its premises and to enjoy its facilities. The strictly personal character of the right conferred is further evidenced by the tenth rule of the exchange, which provides that “ a lessee of a stand may permit another member to use the same for auction purposes, and to place his name on the stand for that day.” This limited privilege is entirely inconsistent with a general right of transfer, even to 'other members of the exchange. It is clear, therefore, that the moment Levy ceased to be a member, his rights as a special standholder terminated. His rights here terminated with the transfer of the shares of stock which he was required to hold to entitle him to membership, and such rights, beyond all question, terminated with his death. The learned counsel for the appellant contends that, even if the latter proposition be- correct, yet the plaintiff took the remainder of the five-years term by the transfer prior to Levy’s death. But Levy could not, under any circumstances, confer upon the plaintiff any other or greater right than he himself possessed. It would be a strange doctrine which would enable the .assignee to retain possession for the remainder of the term, when, if the assignment had not been made, the assignor would have lost the right to retain such possession under the terms of his ■contract; in other words, that the assignee should take freed from the proviso specially imposed upon his assignor.

But we need not dwell further upon this contention, as we place our judgment upon the distinct ground that the agreement in question was personal to Levy and non-assignable.

The defendant might not specially object to his utilizing the stand as he did, while he continued to be an auctioneer and a member (although the facts entirely fail to show either a substituted tenancy or an estoppel), yet we have no doubt that it had .a right, upon the cessation of his membership, to repossess itself of such stand and to place it again in competition.

The judgment appealed from should be affirmed, with costs.

Patterson, J., concurs.


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    The People ex rel. Albert E. Westlotorn, Relator, v. Charles F. MacLean et al., Com’rs., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Municipal corporations—Discharge op policeman—Certiorari.
    The relator, a policeman, was charged with making an unprovoked assault on S., arresting him and falsely charging him with disorderly conduct. The charge was fully established. The testimony of the relator was improbable. Held, that the dismissal of the relator by the police commissioners would not be disturbed by certiorari.

    Certiorari to review the proceedings of the police commissioners dismissing the relator from the police force.

      Louis J. Grant, for relator; W. H. Clark, corporation counsel (John J. Delany and Cornelius F. Collins, of counsel), for resp't
   Barrett, J.

—The relator, a member of the police force, was ■charged with conduct unbecoming an officer. The specifications were that “the said patrolman Albert E. Westlotorn did, on the evening of June 28, 1890, at about 11.50 o’clock, at the corner of Spring and Hudson street, without cause or provocation, assault Daniel J. Sullivan, shove him into the street, at the same time •striking him a violent blow on the head with his club, arrested him and falsely charged him with disorderly conduct”

The charge and specifications were fully' established -by the complainant Daniel J. Sullivan, and his testimony was corroborated by a large number of witnesses. We have examined the testimony with care and are quite satisfied that the judgment of the commissioners was entirely just. It is rare that so unprovoked and brutal an assault as that disclosed by the record is brought to the attention of the court, and it is difficult to perceive upon what theory this appeal was taken. The testimony adduced by the relator before the commissioners was most improbable, and the preponderance of evidence was decidedly against him. The appeal is without merit, and the writ should be dismissed, with costs.

Van Brunt, P. J., and Patterson, J., concur.


author: Patterson, J.

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    Augustus S. Shepard, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Tbial—Remabks op counsel at opening.
    Where, upon a trial before referees, the counsel for plaintiff made many inconsequent and irrelevant remarks before any testimony had been offered, but it appears the referees were guilty of no misconduct, and made an award of a less amount than was claimed by plaintiff, and such as was sustained by the evidence, a verdict for plaintiff will not be disturbed.
    2. Evidence—Opinion—When witness competent.
    A witness was asked the value of certain property; it was shown that he had lived in the neighborhood for twenty-five years, and had kept himself well informed of both fee and rental values of property in the vicinity. Held, that the witness was competent to speak as to facts and to give an opinion as to values.
    1 3. Appeal—Objections to answeb not baised below.
    Where the answer of a witness is not objected to on the trial, it cannot be afterwards raised on appeal that the answer was incompetent.
    Appeal from judgment entered on report of referre.

      Davies & Ratallo, for app’lts; Peckham & Tyler, for resp’t.
   Patterson, J.

—We see no reason for disturbing the judgment entered upon the report of the reference.

In the opening remarks of counsel on the hearing, which have been excepted to, many inconsequent and irrelevant things seem to have been said, which as they are reported, if they had any weight at all, we would regard as rather tending to prejudice the referees against the plaintiff than prepossess them in his favor. It cannot be inferred that they were at all impressed by the rambling talk which appears to have been the feature of the opening. They were bound to determine the case on its merits. Ho testimony had been offered. It is a very different thing when the proofs are all in and counsel comment on them in such a way as may influence the minds of jurors unfairly, by illegitimate allusion to matters outside the record. When a case is opened there is no record at all and while it is barely possible that before a jury such unchecked statements made at the onset of a trial might affect them, it is incredible that a tribunal composed of experienced. men, such as these three referees, would, in anyway be governed by what was said before a witness was called, or that after a protracted investigation covering a long period of time, them mature deliberation upon the evidence when it was all before them, would be controlled by a mere wandering opening speech. That would be to hold that the referees were not only unfit to be trusted with the duty devolved upon them, but that they were foolish enough to be affected by what would not influence an inteligent child who understood him to form an opinion upon facts presented to him.' The cases cited by the appellant relate to a different phrase of the question. There is no misconduct shown on the part of the referees. They were patient and tolerant and that is all, and when we come to consider the whole case it is quite apparent they did not make their award in view of what was said" on the opening, but on the contrary fixed an amount very much below that claimed and expected by the plaintiff and much within the limit they might have gone to on the proofs.

An exception was taken to the testimony of the witness Sobel who was asked the value of certain property on Greenwich street in the years 1870 to 1873. The specific ground of the objection was that the witness was incompetent to testify as an expert. We think his examination showed that he was quite competent to speak as to facts and also to give an opinion as to values on Greenwich street. He was an owner of real estate there and in other parts of the city, -he had lived on Greenwich street in the neighborhood of the-premises referred to in the question for a quarter of a century and had kept himself well informed of both fee and rental values of property in that vicinity.

An exception was also taken to a ruling permitting the witness Eddy to answer .a question by which he was asked on redirect examination to state further what was the cause of the fall in values of property on Greenwich street. He was a so called expert witness on behalf of the plaintiff and on cross-examination had been interrogated as to the causes of the advance or decline of real estate in certain localities. It is not argued now that the question was improper. It called for facts and not conclusions of the witness and the plaintiff was entitled to dispel any inference -that might have been drawn from the testimony on the cross-examination as to decline in values, for so far, the causes then stated seemed to be the only operative ones in the judgment of the witness. The answer, is objected to, however, and it is said that it is an expression of an opinion by the witness in one of the issues the referees were to determine. But that answer stands unchallenged. Ro motion was made to expunge it and it went before the referees with the apparent acquiescence of the defendants.

The other exceptions noted on the appellant’s brief as being insisted upon do not require consideration.

Judgment affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur in result.


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    Henry E. Bandell, Resp’t, v. S. Elwood May, App’lt.
    . (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Malicious prosecution—Probable cause—Evidence of.
    Upon the trial of an action for malicious prosecution, it appeared that the plaintiff ordered from the defendant 500 cases of goods, to be delivered in two equal lots. The first was delivered and paid for. The plaintiff ordered the second lot shipped, and sent his check for the same; the defendant only shipped 200 cases, and promised to return the check; not doing so, plaintiff stopped its payment. Defendant caused the plaintiff to go to Nyack, the former’s home; and on the plaintiff’s arrival there, caused his arrest' on a charge of grand larceny for stealing the sum of $625. Held, that there was an absence of probable cause for plaintiff’s arres.
    Appeal from circuit court.

      William Blakie, for app’lt; E. J. Newell, for resp’t
   Patterson, J.

—This cause was submitted without argument. We have been unable to ascertain from the appellant’s brief the precise grounds relied upon as assignments of error in the rulings of the court below, and- have thus been compelled to go over the whole record and examine the whole case to ascertain whether or not any ground exists for a reversal of the judgment. The action was for malicious prosecution, and on the trial this state of facts was disclosed: The defendant was a manufacturer at Nyack, in the state of New York; the plaintiff was the selling agent of his goods in the city of New York. A contest arose between them as to the scope of the agency, and whether or not it included a certain description or kind of goods manufactured by the defendant. While that contest was pending, the plaintiff ordered on his own account, from the defendant, certain goods, namely: five hundred cases, which were to be paid for at the rate of $2.50 a. case. The deliveries were to be , made of two hundred and fifty cases each, and payment was required before shipment. The first lot of two hundred and fifty cases was delivered and paid for. Subsequently the remaining two hundred and fifty cases were ordered, and the plaintiff sent to the defendant his check for $625 to pay for that second shipment, and it was the full amount of that shipment which was thus paid for in advance. Instead of sending two hundred and fifty cases, the defendant only shipped two hundred cases, and kept the check of the plaintiff, but it would appear that by reason of some misunderstanding, the defendant would not send the goods ordered by the plantiff, and promised to return the check. Thereafter, the plaintiff not receiving his check, stopped its payment, and the defendant, although he had not made delivery of the goods ordered by the plaintiff, demanded the full sum of $625, which it appears was not complied with. It is further shown, that the defendant caused the plaintiff to go to Nyack while this matter was still unsettled between them, and, on the plaintiff’s arriving at that place, he was arrested on a charge of grand larceny, for stealing the sum of $625. He was imprisoned and apparently treated with great indignity, and the only ground upon which the charge of larceny could have been predicated, was stopping payment of the check for $625, which was done on the claim that the defendant was not entitled to that money because of a breach of his contract to furnish goods to that amount in value.

Looking through the whole case without any guidance or direction whatever from the brief presented by the counsel for the appellant, it would seem upon the statement of the case, as made above, that there could be no doubt of the plaintiff’s right of recovery. There was no probable cause whatever for the arrest. It seems to have been a mere act of spleen or vengence. Mercantile transactions had taken place between these parties, the defendant according to the contention of the plaintiff, was in absolute default upon his contract, and there is no reason why the plaintiff should be called upon to pay $625 for $500 worth of goods. There was no excuse so far as this record shows for the defendant setting in motion the enginery of the criminal law, against the plaintiff who at least, had a fair and reasonable ground of difference with him, and that is sufficient of itself to show, that the prosecution was instigated by malice; and the learned court was therefore right in saying that there was no ground whatever of probable cause, and to quote the language of the learned judge, as matter of law, “ I hold there was an absence of probable cause of the crime of larceny,” and there was very complete proof that the charge was instigated simply by malice. There was not the slightest evidence whatever to implicate the plaintiff in the commission of a crime, and that he was honorably discharged after an examination before the justice can scarcely be contracted. Under the circumstances of the case, the amount awarded by the jury was not excessive, and on going over the whole record we find nothing whatever which should induce us to reverse the judgment entered below.

Judgment affirmed, with costs.

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


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    William H. Kingsland, trustee, Resp’t, v. The Mayor, etc., of the City of New York, App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Eminent domain—Recitals op deed not peoop of value.
    In the trial of an action for the assessment of damages sustained by plaintiff in the appropriation of his property by the city, the recitals as to consideration in deeds from the owners of similar properly in the city, is not evidence of the value of the property in question. The proper method of proving such value is by the testimony of witnesses based upon their knowledge of the subject.
    3. Witness—Plaintiff cannot cross-examine his own.
    The plaintiff, in attempting to prove the value of such property, has no right to cross-examine his own witnesses by asking him to explain in detail the reason for his opinion as to such value.
    Appeal from judgment entered on verdict after trial at circuit.

      William H. Clark, corp. counsel (C. Blandy and E. J. Freedman, of counsel), for app’lts; Tracy, McFarland, Ivins, Boardman & Platt (W. W. McFarland, of counsel), for resp’t.
   Van Brunt, P. J.

—The trial of this action was an assessment of the damages which the plaintiff had sustained by the appropriation by the defendant of certain bulkhead property or rights belonging to the plaintiffs.

The jury found that the fair market value of the plaintiffs’ bulkhead the subject-matter of this action on the 1st of August, 1880, was the sum of $90,000, the time of the appropriation of said bulkhead by the city; and we are asked to set aside this verdict upon the ground among others that it is excessive.

One of the points of controversy during the progress of the trial was as to the extent of the privileges which were conferred by the ownership of this bulkhead; whether under the act of 1858, its preferential use was limited to steamboat lines or whether such preferential use included transatlantic and coastwise steamship' companies.

It is undoubtedly true that when this case was before the court of appeals upon a prior occasion that court seems to have held that under the act of 1858 such preferential use was not limited to steamboat lines, lessees of adjacent piers plying in the waters of the bay, Hudson river, East river, Long Island sound; the rivers emptying into the Sound, Harragansett Bay and the bays adjacent thereto which are mentioned in the act; but that transatlantic and coastwise steamship lines were entitled to undisturbed facilities for the transaction of their business under the provisions of this act of 1858.

It is also true that in the course of the opinion of the learned judge who wrote in that case the words “steamboats,” “steamers ” and “steamships” are indiscriminately used; and that his opinion winds up with the statement that the plaintiff as owner of his wharf right was entitled to thfe wharfage which it yielded and such added value as its privilege of preferential use when leased to the adjoining steamboat line would give it, but beyond that he had no other right as incident to his ownership. But the fact of the value of this bulkhead to steamship lines was before the court and was discussed by the court, and it seems to have been the opinion of the court that it was properly considered in determining the value of the rights of which the plaintiff had been deprived.

But from the record in this case, it is impossible for us to determine as to whether or not the jury took into consideration, in determining the value of the property taken, the preferential or exclusive use by transatlantic or coastwise steamship companies, because we find that they were charged that the act of 1858 gave no preferential use to transatlantic or coastwise steamship companies, and the court refused to charge that the plaintiff was not entitled to compensation for any preferential use or exclusive use of said bulkhead by any transatlantic or coastwise steamship companies.

The question as to whether it was the intention of the court of appeals to construe the act of 1858, as giving to an adjoining transatlantic or coastwise steamship line, with the owners of this bulkhead, a preferential use of the same, can only be authoritatively determined by that court.

There are questions, however, raised by the admission of testimony which seem to have worked injustice to the appellants. Upon the examination of two of the witnesses called upon the part of the appellants as experts, it was established that there had been private purchases by the city of bulkhead rights from certain persons named in their testimony; and in respect to one of the witnesses, it was shown that all his information was derived from the records. Subsequently, one George S. Green, the engineer in chief of the department of docks was called as a witness by the defendants to show the condition of the bulkhead in reference to two of the purchases which were alleged to have been made by the city, and he testified in respect thereto; and the consideration mentioned in the deeds to the city appeared in connection with his direct examination. Upon his cross-examination the witness was asked the length of one of these bulkheads, and then what was the price paid for it. Upon redirect examination the witness stated that he did not know the circumstances leading to the giving of that special sum of money; he .did not recollect that. And when asked upon re-cross examination whether the seller had a wharfage right and nothing else, he said he did not know. It is true that he stated that he did not know that the seller had anything else but a wharfage right; but it is evident that the witness was swearing to his conclusion without ever having any knowledge of the fact.

A motion was made to strike out the evidence of this witness as to the two purchases mentioned, upon the ground, amongst other things, that it was immaterial, and that there was no evidence before the court of the sum the city paid for those pieces of property; and this motion was denied.

We think this was error. It is evident from the examination of the witness that he did not know what had been conveyed, or whether any other rights were included in the deed or not, and it is further apparent that he did not know what the price paid had been. . It seems to be established by the case of The People ex rel. Mayor v. McCarthy, 102 N. Y., 630; 2 N. Y. State Rep., 546, that the sums inserted in deeds are no evidence of the actual consideration, and are not in any view competent evidence of value. The court says:

“ No rule of law requires the true consideration paid upon the transfer of land to be inserted in conveyancers of real estate, and it is within the knowledge of conveyances that the amount stated therein is often determined by fanciful, capricious and arbitrary considerations, which render it utterly unreliable as evidence of value. It is frequently depressed by forced and unnatural sales, and as often enhanced by fictitious values placed upon property transferred in exchange or deeded in settlement of disputed claims, or given from consideration of affection, liberality and duty, and is at the best but the opinions of the grantors and grantees of its value, or a declaration of the value placed by them upon the property. Such prices have usually been held inadmissible as evidence of value in actions relating to property, for the reason that they áre liable to be influenced by too many causes, aside from the actual value, to be regarded as competent evidence of the fact.

“ The usual method of proving value in legal proceedings is by the testimony of the witnesses, expressing their opinions under oath as to such value, based upon their knowledge of the subject matter, and familiar with the circumstances bearing upon the question."

It may be said that this -view is in conflict with that expressed by this court in the case of Langdon v. The Mayor, in which it was held that the reports of the dock department, in reference to purchases by the city, may be considered in determining the market value of bulkhead rights, similar to those at bar. But the proof in that case was in an entirely different condition from that which existed in the case at bar. The evidence offered was from the records of the city itself, showing not one or two, but a large number of purchases at substantially uniform rates, this being proof which should have been considered upon the question of the market value of the bulkhead involved in that action.

In the case at bar the witness was allowed to testify to the consideration, without knowing anything about it, that it had ever been paid, and without knowing actually what had been conveyed.

We think, when these facts appeared, the motion to strike out this testimony should have been granted, and it was error to allow it to be considered by the jury.

The plaintiff, to maintain the issues upon his part, offered in evidence a lease of a pier at the foot of Charlton street, adjacent to the property in question, showing the rental paid for such pier. The introduction of this evidence, was objected to, and it was clearly improper, not only because the proper method of proving value in legal proceedings is by the testimony of witnessess expressing their opinion under oath, based upon their knowledge of the subject matter, and familiar with the circumstances bearing upon the question (People ex rel. Mayor v. McCarthy, supra), therefore proof of individual transactions is not evidence in chief upon the question of market value, but also because the pier property was of so essentially different character from the property under consideration that it afforded no criterion of value.

Undoubtedly, upon cross-examination of a witness put upon the stand to testify as to market value, questions may be put to him calling his attention to individual transactions, for the purpose of testing the value of his opinion.

The objection taken to the question put to the witness Marshall to explain in detail the reason why anybody should pay for such a bulkhead more than he could get out of it by collecting wharf-age at statutory rates should have been sustained. The plaintiff in attempting to prove the market value has no right to cross-examine his own witness.

He may ask him for his opinion as to its value after having proved his capacity to testify as an expert; but he cannot call upon such expert for the grounds of his opinion or the mental process by which he arrives at that result That is a privilege which is reserved to the other side upon cross-examination if they desire to avail themselves of it

In the case at bar, by means of this question, the witness was allowed to inject into the evidence an argument upon the question of value, and the expression of opinion upon hypothetical ■subjects and from which it appears that considerations entered into his mind in reference to the use to which this pier should be put which were precisely contrary to the decision of the court of appeals in this identical case. He says: “ If there is no shed on the bulkhead a float or pontoon can be constructed and placed there for the storage of property that is in bond and the reception of it out of bond. It can be towed immediately alongside the vessel and discharged over the side of the vessel.”

As we understand the decision of the court of appeals in this ■case this bulkhead cannot be used for any such purpose. It does not make any difference whether the shed is floating or permanent. The right to use it for the purpose of storage does not exist. And this witness was allowed to inject into the case the very elements in the consideration of damages which the court of appeals said was not an element which might be considered.

There are other exceptions which might call for consideration, but we think that those to which attention has been called are of such a character as seriously affected the rights of the defendant, and call for a new trial.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event

Daniels and Lambert, JJ., concur.


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    In the Matter of the Dissolution of the Home Provident Safety Fund Association of New York.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Receiver—Payments—Not liable for obeying improvident order of COURT.
    Where a receiver makes payments, out of moneys and property transferred to him by a depository, under order of a court improvidently granted, he cannot, when required to return such money and property, be compelled to return such payments also, as a personal liability.
    2. Same—Return of payments by parties receiving.
    In such a case, the parties to whom the payments were made should return the same to the receiver.
    Appeal by C. H. Daniels, as receiver'from part of order affecting him; by Hastings and Gleason from part of order affecting them; by Charles A. Jackson and Charles D. Burrill, respectively from part of order affecting them.

      Nelson Smith, for app’lt, rec’r; Hastings & Gleason, for app’lt, in person; Charles A. Jackson, for app’lt, in person, and for Charles D. Burrill; Turner, McClure & Rolston, for the Farmers’ Loan & Trust Company, resp’t.
   Per Curiam.

—We are of the opinion that so much of the order appealed from as directs the receiver to pay over the. funds and property received by him, to the Farmers’ Loan & Trust Company, should be reversed.

The receiver in making the payments made by him, was acting under the order of the court, and should not now have, in effect, a fine imposed upon him, for obeying an order which was improvidently granted.

The trust company as appears from the papers, must have had the order in its possession, as early as the 27th of January, 1890, and when it transferred the ten $1,000 bonds on the 13th of February following, it had had the order for at least seventeen days.

Without taking the advice of counsel, it voluntarily transferred the moneys and bonds, and it would seem to be too late for it now, as against the receiver, to question the propriety of the order. Even if this is not so, it may well be questioned, whether the trust company makes out a case under the order, entitling it to a return of the property ; upon this point, however, we .express no opinion.

The title to the property remained in the corporation, notwithstanding the execution of the trust deed, and upon the appointment of the receiver, the right to the possession of all the corporate property vested-in him. Atty. Gen. v. Guard, Mut. Life Ins. Co., 77 N. Y., 277.

The cases cited by the ■ counsel for the trust company, do not hold a different doctrine

In the case of Matter of Guardian Mutual Life Insurance Company, 13 Hun, 115, the court held that under the peculiar provisions of the acts relating to the superintendent of the insurance department, the distribution of the property of the insolvent corporation should be committed to that officer. It was not held that the property did not remain in the corporation. We are, however, of the opinion, that the parties to whom the receiver had distributed the moneys, under the order in question, should return the same to him, in order that upon a full hearing of the parties interested, such disposition may be made of the fund, as to the court shall seem just and equitable.

No costs to either party on this appeal.

Yan Brunt, P. j!, and Lawrence, J., concur.


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    William S. Keiley, Receiver, Resp’t, v. Mechanics & Traders’ Bank, App’lt

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Corporations—Insolvent—Transfer.
    A manufacturing corporation gave a bill of sale of all its machinery and property to a creditor, who took possession at once. At the time of the execution of the bill of sale the company was insolvent. Held, that the bill of sale was given in contemplation of insolvency and with intent to create a preference, and was utterly void under IB. S., 603, § 4.
    Appeal from judgment entered upon the decision of this court at special term.

      Thomas J. McKee (S. J. Crooke, of counsel), for app’lt: Blumenstiel & Hirsch, for resp’t.
   Van Brunt, P. J.

—It appeared upon the trial of this action that in and prior to the month of January, 1888, the Industrial Manufacturing Company was a domestic manufacturing company duly incorporated and created under the laws of the state of New York and carrying on business in the city of New York, which business was that of manufacturing Jersey jackets, and its plant consisted of machinery, fixtures, tools, etc., for that purpose in a factory located at West Forty-fifth street

The defendant is a banking corporation created under the laws of the state of New York, carrying on business in the city of New York. '

On the 7th of May, 1888, in an action brought in the supreme court of the state of New York for a dissolution of the said Industrial Manufacturing Co., a judgment was rendered dissolving said company and appointing the plaintiff receiver of its property and effects. He duly qualified. In addition to the property above mentioned, the said company had no other property or assets, except certain manufactured merchandise which had been consigned by it for sale, upon which advances had been made at least equal to the value of the merchandise. On the 24th of January, 1888, said manufacturing company executed to the defendant herein a chattel mortgage upon its machinery and chattels and property situate in its said factory to secure the payment to the defendant of the sum of $2,250, which mortgage was on said day duly filed in the office of the register of the city and county of New York. On the same day said company also executed to the defendants a bill of sale of said machinery, property and chattels situate in said factory, in consideration of the same indebtedness for which the chattel mortgage was given. The consideration for which said chattel mortgage and bill of sale were executed was for an antecedent indebtedness arising out of the discount by the defendant for said company of a promissory note for the sum of $2,250, and which had not matured on said 24th January, 1888. ITnder and by virtue of said chattel mortgage and bill of sale, the defendant took possession of the said machinery, chattels and property on or about the 25th of January, 1888, the day after the execution thereof.

At the time of the execution of said mortgage and bill of sale the said company was insolvent, and actions had been brought against it on matured claims and demands by various of its creditors, which actions were pending, and the said company had likewise made default in the payment of its promissory notes, which had matured prior to said 24th of January, 1888.

The learned court found that while insolvent and in contemplation of insolvency, and with intent to create a preference to the defendant for the security-of the antecedent indebtedness on the promissory note of $2,250, and not otherwise, the company made and executed the chattel mortgage and bill of sale above mentioned, and also that the bill of sale and chattel mortgage having been executed by the company when insolvent and in contemplation of insolvency, the same and each of them were utterly void, and gave judgment vacating and setting aside said bill of sale and chattel mortgage, and from the judgment thereupon entered this appeal is taken.

■ The decision was based upon the theory that the transfer in question was made in contemplation of insolvency, and, therefore, utterly void by the law of this state. 1 R. S., 603, § 4.

The statute reads as follows: “ Whenever any incorporated company shall have refused the payment of any of its notes, or other evidences of debt, in specie or lawful money of the United States it shall not be lawful for such company, or any of its officers, to assign or transfer any of the property or choses in action of such company to any officers or stockholders of such company, directly or indirectly, for the payment of any debt; and it shall not be lawful to make any transfer or assignment in contemplation of the insolvency of such company to any person or persons whatever ; and every such transfer and assignment to -such officer, stockholder or other person, or in trust for them or their benefit, shall be utterly void.”

It is claimed upon the part of the defendant that, as the Industrial Manufacturing Company was organized under the general manufacturing act, the general provisions of the Revised Statutes do not apply.

It is not necessary to discuss this proposition, because it lias, been assumed for too long a period of time that such corporations are subject to these provisions, and there have been too many adjudications based upon the fact that they are so subject, to consider the question as one now open for discussion.

But it is urged that there was no such insolvency, or contemplated insolvency, within the meaning of the statute, as rendered the security which was given void, and this point is based upon evidence which it is claimed, upon the part of the defendant, tended to show that, at the time of the execution of these papers, the company did not contemplate stoppage or failure, but intended to keep on in the expectation that its affairs might be retrieved ; and that as the contemplation of insolvency has been defined to be where a party having full knowledge of his embarrassed circumstances, has no hope or expectation of relief, and anticipates an entire failure in business and absolute insolvency, the evidence in the case at bar fails to justify the findings of the-court below, that these papers were executed in contemplation of insolvency.

It is undoubtedly true that the mere fact of being unable to pay its debts does not operate of itself to produce such a condition of affairs that it is impossible for the corporation to go on and continue its business. The wording of the statute is peculiar in that respect, a distinction being made between failure to meet its obligations and the doing of a thing in contemplation of insolvency. But in the case at bar the evidence is absolutely conclusive that the company had no hope of continuing its business. The giving of the bill of sale necessarily and absolutely prevented the continuance of its business. It appears that their property consisted of goods which had been manufactured and consigned for sale upon which advances to their full value had been made, and the machinery, tools and instruments and other property used and employed by it in its manufactory in the conduct of its business. All these articles were necessary for the conduct of their business, being a manufacturing business. They gave a bill of sale upon all this machinery, etc., and it was absolutely necessary in order that the bill of sale should be of any effect whatever that the purchaser should take immediate possession of the property, which it did. How it was possible for the corporation to contemplate going on with their business after selling and delivering the possession of the very articles which were necessary for the conduct of their business has not been explained.

It is true that the secretary of the company testified that the company hoped to go on after this transfer. But after it had sold all its plant, and had no money to buy more, it would seem as though the hope indulged was quite illusory.

It is clear that this transfer was made in contemplation of insolvency with the knowledge that the corporation would have to fail, and for the purpose of giving the defendant a preference over other creditors because the defendant had advanced this money out of personal friendship for some of the officers of the insolvent company.

We think the judgment should be affirmed, with costs.

BArrett and Patterson, JJ., concur.


text:
    Leopold Mullenhoff, Resp’t, v. Frederick Gensler, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 16, 1891.)

    1. Brokers—Sales op land on commission—When entitled to commissions.
    The question whether a real estate broker is entitled to commissions turns on the inquiry whether the things he has done, while his agency continues, have brought forth a party able, willing and ready to accept the owner’s offer of sale.
    2. Same.
    The owner offered to sell the property for $10,000 cash the next morning, and the broker produed a customer who would and could raise the money within thirty days. Held, that the broker had not produced a customer able and ready to accept the owner’s offer, and was not entitled to commissions.
    Appeal from an order denying a motion for a new trial.

      Norton Bros., for app’lt; F. R. March, for resp’t.
   Per Curiam.

—We think the conditions upon which a broker is entitled to commissions were correctly stated by this court in Slater v. Holt, 10 N. Y. State Rep., 257. “ The question whether a broker is entitled to commissions turns on the inquiry whether the things he has done, while his agency continues, have brought forth a party able, willing and ready to accept the owner’s offer of sale.” If the respondent did not produce such a party he was not entitled to commissions and if he failed on the trial to make it appear that he produced a purchaser- answering those requirements a new trial should be granted.

The inquiry here is one as to evidence. Simon, the proposed purchaser, on his direct exainination testified: “ When we were at Herman’s I said : 1 Grensler, I heard you wanted to sell your house for $10,000 I want to buy it.’ I placed twenty-five dollars in bills on the counter, and he shoved it back and said: ‘ I don’t want to sell it.’ I was ready to buy it for $10,000 and ready to give, him the cash for it if I had had about thirty days’ time. The twenty-five dollars was for the purpose of binding the bargain. I was willing to make the bargain at that time and went there for that purpose, and Mr. Mullenhoff got me to go there." On his cross-examination he said: “ Mullenhoff told me I could buy G-ensler’s property for $10,000 ; I considered it worth about $18,000, and was ready in a minute to buy it for $10,000. When we were in Herman’s place I said to Glensler that I heard that he wanted to sell his property for $10,000, and if that was so I wanted to buy it. I had twenty-five dollars to bind the bargain. I made no offer to purchase at any other price than $10,000. I saw he did not want to sell, and that settled the matter. I did not have $10,000 in my pocket nor in the bank; but I have property enough and could raise it at any time, but when I found it was not for sale for $10,000 I did not wish to make a bargain.”

According to the respondent’s own testimony Grensler’s offer was to sell for $10,000 if Mullenhoff would produce a purchaser with $10,000 cash the next morning. Even if the construction to be put upon the offer was that a party should be produced the next morning with $10,000, that is to say able to pay $10,000, the true meaning would seem to be that a purchaser should be produced able to pay $10,000 as soon as conveyances could be prepared and the negotiations concluded. Mow according to Simon, when he proposed to buy, Grensler told him he did not. want to sell.

In Hart v. Hoffman, 44 How. Pr., 168, the court of appeals held that it was not necessary under the circumstances of that case for the plaintiff to prove that the party produced as a purchaser had the pecuniary ability to conclude the trade. But the decision was not intended to qualify the rule that the broker must produce a purchaser “of sufficient ability.” Duclos v. Cunningham, 102 N. Y., 678; 2 N. Y. State Rep., 13.

In Hart v. Hoffman the agent produced a purchaser who on being presented to the owner stated that he was ready to buy the jmopertv. Without inquiry or objection the owner absolutely refused to sell. Under such circumstances no proof being offered or called for on the subject it was simply held that it was to be presumed the purchaser was able to close the trade. There the broker’s case which embraced the necessity of showing he had produced a party pecuniarily able to buy was made out by a presumption of law in the place of testimony.

But in the case before us, testimony was given on the subject, and it appears that the purchaser, in his own opinion, would be able to conclude the trade after about thirty days. He testified that he had property enough to enable him to raise the $10,000 at any time. He meant that he could raise the money by loan or otherwise out of his property. That evidently implied negotiations and the lapse of an indefinite period of time. It is fair to suppose as much time as he stated, namely, about thirty days. The defendant’s offer was to sell if a man was produced the next day with $10,000 cash.

We think the plaintiff’s proof as to the ability of' the purchaser to close the trade without delay was defective. It should appear in some way in order to sustain the broker’s claim that the party produced as a purchaser is “ of sufficient responsibility,” is financially able to complete the purchase according to the terms of the owner’s offer, including the point of time.

That is essential to recovery, although in many reported cases the fact seems to have been conceded or established by presumptive evidence.

A new* trial should be granted.

Beckwith, Oh. J., and Hatch, J., concur ;• Titus, J., not sitting.


author: Beckwith, Ch. J.

text:
    Henry J. Meissner, App’lt, v. Michael B. Brennen, Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed July 16, 1891.)

    Pleading—Ambiguous.
    After a party has acted upon a certain construction of an ambiguous pleading, which construction it bears as well as the opposite meaning, the party framing the pleading should not have the advantage of a construction which would defeat the opposite party.
    Appeal from an order granting a new trial.

      George Wing, for app’lt; W. L. Jones, for resp’t.
   Beckwith, Ch. J.

—The complaint is that “ the plaintiff, at the special instance and request of the defendant, performed a large amount of labor for the defendant as a plumber and gas fitter; and also at the request of the defendant the plaintiff furnished a large quantity of plumbers’ materials, which he used in said work for the defendant, and that the defendant contracted and agreed to pay the plaintiff for such labor and material the sum of seven hundred and forty dollars and fifty-five cents; and that said labor, together with materials so furnished to the defendant by the plaintiff, were reasonably worth the sum of seven hundred and forty dollars and fifly-five cents."

The defendant, in his answer, while admitting the employment of the plaintiff as a plumber, as set forth in the complaint, set up as a counterclaim a breach of his agreement by the plaintiff, in not doing his work in a workmanlike manner and not completing his undertaking in every particular, and in not furnishing good and suitable material, according to his agreement, to the defendant’s damage of $200.

There was no general or specific denial of the allegation of the complaint, and accordingly no denial of the plaintiff’s allegation that the work and material “were reasonably worth $740.55.” On the trial, because, as it would seem, the allegation of value was not denied^ proof in support of the defendant’s said counterclaim was excluded, but after verdict on motion made upon the minutes, the court granted an order for a new trial and from that order this appeal is taken.

If the complaint quoted could be regarded as simply setting forth a quantum meruit, the allegation that the work done for the defendant was worth a specified sum of money, might require a denial, but the complaint alleges that for the work and material the defendant contracted and agreed to pay the plaintiff $750.55.

Although a complaint in the form of indebitatus assumpsit has been sustained yet under the system of pleading established by the Code a party is required to state the facts constituting his causé of action. The defendant therefore had a right to treat the complaint as stating facts, and not implications of law, when it stated that he had contracted to pay for the work $740.55. If that price had been agreed upon as a fact as, in that view, the complaint alleged, it was immaterial what the work was really worth, and an allegation of value was an immaterial allegation which did not require' denial. The defendant by his answers shows that he understood the plaintiff to allege a contract for the work and an agreement as to the price, and I think he had a right to so read the complaint. After a party has acted upon a certain construction of an ambiguous pleading, which construction it bears as well as the opposite meaning, the party framing the pleading ought not to have advantage of a construction which would defeat the opposite party. Clark v. Dillon, 97 N. Y., 370.

At common law where the plaintiff declared that the defendant promised to pay him for his services a certain sum as an indebtedness, and also that the defendant promised to pay him so much as he reasonably deserved, the declaration was held bad, as the two promises to pay a sum certain and to pay quantum meruit were inconsistent and could not stand together. Hart v. Longfield, 7 Mod., 148.

The allegation of value could not bs material except by treating the allegation that defendant agreed to pay the plaintiff a certain sum as an allegation of the promise implied by law to pay what work already performed upon request. was reasonably worth. But, as already remarked, the Code requires that facts only shall be stated; the defendant regarded the complaint as stating that the work was contracted for at a specific price and the complaint fairly bears that construction; and the defendant answered in the way of recoupment that he ought not to pay the full price because the plaintiff did not fully perform his contract. It follows that the allegation of value was an immaterial allegation.

The order should be affirmed.

Hatch, J., concurs; Titus, J., not sitting.


text:
    Dominico A. Campanello, by Guardian, Resp’t, v. The New York Central & Hudson River Railroad Company, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 16, 1891.)

    New trial.
    A party is entitled to a full and fair hearing before the jury; and when that right has been denied him by some word or act of the trial judge, although without intending to prejudice his rights in the minds of the-jury, it is not an abuse of discretion to correct it by granting a new trial.
    Appeal from an order setting aside the verdict of a jury at trial term.

      McMillan Gluck & Pooley, for app’lt; Close & Fleischmann, for resp’t.
   Per Curiam.

—On the trial of this action before a jury, after the close of the testimony on both sides, the counsel for the defendant summed up his case and discussed the evidence fully, and the plaintiff’s counsel began summing up, and after commencing his argument to the jury, the judge presiding at the trial requested the counsel to cut short his argument to the jury, as he desired an early adjournment. The counsel did as requested, the court charged the jury, and they returned a verdict in favor of the defendant. The plaintiff then made a motion before the trial judge to set aside the verdict of the jury on the ground that he did not have a full and fair opportunity to present his view of the evidence in the case to the jury, and that the interruption from the court distracted his attention from the facts in the case, confused his thoughts, and prejudiced him and his client before the jury. The court, after listening to affidavits setting forth these facts, set aside the verdict and ordered a new trial, on the ground that the plaintiff probably was prejudiced, and that the jury, without understanding the reason for the counsel’s abruptly closing his argument, drew unfavorable inferences that the counsel had but little faith in his case, and did not expect a verdict at their hands.

The defendant appealed from the order setting aside the verdict and granting a new trial, and now insists that the judge acted without any sufficient evidence, and had no authority to grant the-plaintiff’s motion.

It is not doubted that the court may entertain a motion to set. aside a verdict on the minutes for causes other than those mentioned in the Code of Civil Procedure, if substantial justice will be promoted by so doing. Emmerich v. Hefferan, 33 Hun, 57.

. Such motions are addressed to the sound discretion of the court, and if the court can see that the party has been prejudiced by some inadvertent remark or suggestion of the court, such discretion may be properly exercised. Platt v. Munroe, 34 Barb., 291. The order made granting a new trial was not predicated on error appearing in- the case, and could have been made without making and settling a case, nor upon newly discovered evidence, but rather on. an inadvertence on the part of the trial judge which might, and probably did, prejudice the plaintiff’s case before the jury.

We do not think the criticism of the plaintiff’s counsel of the ruling of the trial judge is appropriately made or justified by the facts. He seems to have misapprehended the ground upon which the oi’der was placed. It was an appeal to the favor and discretion of the court, and such motions are not controlled by arbitrary rules of law or practice. Platt v. Munroe, supra. If the court was of the opinion that the rights of the plaintiff had been prejudiced in the minds of the jury by its own conduct, and that justice would be promoted by granting a new trial, having a knowledge of all the facts and attending circumstances, we cannot say that the discretion was improperly exercised. Tyler v. Hoornbeck, 48 Barb., 197; Heddaugh v. Bigelow, 67 id., 109, Op. Miller, J.; Shuttleworth v. Winter, 55 N. Y., 624.

A party is entitled to a full and fair hearing before the jury, and when that right has been denied him by some word or act of the trial judge, although without intending to prejudice his rights in the minds of the jury, it is not an abuse of discretion to correct it by granting a new trial. From the evidence it appears that a verdict either way would have the support of evidence, and any slight circumstance might have turned the scale for or against the plaintiff. In such cases the courts have been liberal in granting new trials, although it could not be said as a matter of fact that the case was actually prejudiced in the minds of the jury. Baird v. Daly, 68 N. Y., 547; Hamilton v. Third Avenue R. Co., 53 id., 25.

The cases cited by the learned counsel for the defendant arose on motions for a new trial on errors to which exception must be taken, or in cases of newly discovered evidence, and surprise occurring on the trial, and, in our view of the case, have no application here.

. The order of the special term should be affirmed, but without costs.

Beckwith, Oh. J., and Titus, J., concur; Hatch, J., not sitting.