author: Davis, P. J.: Daniels, J.: Brady, J.:

text:
       ANN MALLACH, Respondent, v. EDWARD A. RIDLEY AND OTHERS, APPELLANTS.

      Liability of the proprietor of a store for the act of an employee in directing the arrest of a person suspected of theft — the proprietor is not liable for an unauthorized act, although the employee supposed he was autiorized to do it.

    Upon the trial of this action, brought to recover damages for the illegal arrest and imprisonment of the plaintiff, it appeared that she had been arrested by a police officer, who, after having been informed by a floor-walker employed by the defendant that a salesman had seen the plaintiff take and conceal a corset, followed her and, after seeing such actions on her part as justified suspicion, arrested her and took her back to the store for examination. The defendants were sued as the proprietors of the store, and it was not claimed that they had any personal connection with the transaction. Graft; the floor-walker, testified that his business and duty were to protect the stock in the section assigned to him, to maintain order, to see that customers were properly waited upon, and to direct customers; that he meant'by protecting the stock to see that the hands behind the counter were keeping the stock clean, and not to protect it from being stolen; that it was not his duty, and that he had no authority from the defendants to arrest or order the arrest or detention of any person on suspicion of having stolen; that his duty in such a case was to report it to the man in charge of the floor or to the superintendent; that when he himself saw a person in the act of theft he had a right to arrest or order a policeman to arrest.
    The judge charged, upon the question of Graft’s authority, that if he “in what he supposed to be the exercise of his duty in protecting those goods, did an act which has entailed a loss or damage upon this plaintiff, the defendants are responsible for that act; that they have placed him there to do that act, and for any act of his in doing what he supposed was his duty in detecting thefts, or in suppressing theft, or in arresting thieves, if he was mistaken in his judgment in that matter, the defendants are responsible.”

      Held, that the judge erred in so charging, as it made the liability of the defendants depend upon the supposition of the servant as to the extent of his authority, instead of upon the authority actually conferred or implied.

      MaliY. Lord (39 N. Y., 3811, followed.
    Appeal from a judgment entered on a verdict and from an oraer denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, on the ground that the verdict was against the weight of evidence and that the damages were excessive.

      This action was brought to recover the damages resulting from an illegal arrest and imprisonment of the plaintiff, made by a policeman pursuant to the direction of one of the defendants’ employees. The justice presiding at the first trial directed a verdict to be rendered in favor of the plaintiff. On appeal to the General Term a new trial was granted, upon the ground that the question as whether the defendants authorized the arrest, and whether the same was within the scope of the powers and duties which they had conferred upon the employee should have been left to the jury.

      E. P. Wilder, for the appellant.

      Kurzman & Yeaman, for the respondent.

       Decided May 8, 1885.

   Davis, P. J.:

There is nothing in the complaint in this action to justify the plaintiff’s counsel in claiming that the action is brought for malicious prosecution. It is simply an action for an illegal arrest and imprisonment of the plaintiff upon suspicion that she had been guilty of a larceny.

The arrest of the plaintiff in this case was made by a police officer under circumstances that seem to have justified his action, as he was informed that one of the salesmen' in the defendant’s store had seen the plaintiff take and conceal a corset, whereupon he followed her and saw such actions on her part as justified suspicion, and thereupon arrested and took her back to the store for examination. It is not claimed that either of the defendants in the action had any personal connection with the transaction. They are sued solely as proprietors of the store, on the ground of their responsibility for the acts of their servants. The judge who tried the case at circuit, in his charge, correctly said to the jury: In the first place, no one claims here that the defendants were personally present, or had anything to do with this transaction; that they had any motive in it, either good or bad. The question, therefore, was and is, to what extent are the defendants responsible for the acts of their employee ? One Graft, who is described as having been a floor-walker in the store, was the person who informed the officer that he had been told by the salesman that the plaintiff had stolen a corset, and requested him to follow and arrest her, and, when he returned to the store with the woman, had directed the officer to take her up stairs and search her, and had accompanied her to a private room for that purpose and was present at the search. The case largely depended upon the question whether Graft, the floorwalker, was acting within the scope of any authority conferred upon him by the defendants. Graft testified that he was a floorwalker in the employ of the defendants; that liis business and duty were to protect the stock in the section assigned to him, to maintain order, to see that customers are properly waited upon, and to direct customers; that he meant, hy protecting the stock, to see that the hands behind the counter were keeping the stock clean, and not to protect it from being stolen ; that it was not his duty, and that he had no authority from the defendants to arrest or order the arrest or detention of any person on suspicion of having stolen ; that his duty in a case where a person is acting suspiciously is to report it to the man in charge of the floor, or, if the superintendent was around, to report to him or send a message; that when he saw a person in the act of theft, he-had a right to arrest or order a policeman to ai’rest, but that when a person was suspected of having stolen, that was a different thing; and that he had distinct orders from the general superintendent in reference to these two matters. The testimony of this witness showed, in short, that he was not authorized by t'he defendants to arrest or cause any person to be arrested upon suspicion, but that his duty in part was to protect the goods in the manner above described, and also against thefts which he himself sgw committed.

In respect to Graft’s authority the j'udge charged as follows: “This brings us to the question of the authority conferred on Graft. What was it ? What is it admitted to be ? To protect those goods. Now, I shall charge you, as a matter of law, that if that man Graft, in what he supposed to be the exercise of his duty in protecting these "goods, did an act which has entailed a loss or damage upon this plaintiff, the defendants are responsible for that act; that they have placed him there to do that act, and for any act of his in doing what he supposed was his dut in detecting thefts, or in suppressing thefts, or in arresting thieves, if he was mistaken in his judgment in that matter, the defendants are responsible. They are not only responsible for that, but for any excess of authority, or any excess in his action in regard to that.”

This part of the charge was excepted to by the counsel for the defendant, and the exception, we think, was well taken. The law governing such cases is laid down in Mali v. Lord (39 N. Y., 381), a case quite similar to the present in its facts. In that case the court say, after considering several authorities: “Applying these principles to the present case the inquiry is whether a merchant by employing a clerk to sell goods for him in his absence, or a superintendent to take the general charge and management of his business at a particular store, thereby confers authority upon such clerk or superintendent to arrest, detain and search any one suspected of having stolen and secreted about his person any of the goods kept in such store. If he does, he is responsible for such acts of the clerk or superintendent. If not, then such acts are not within the scope of the authority delegated to the superintendent, and the employer is not responsible therefor, for the reason that, while in their performance, the servant is not engaged in the business of the master any more than in committing an assault upon or slandering a customer. In examining this question it must be assumed that by the employment the master confers upon the servant the right to do all neeessary and proper acts for the protection and preservation of his property, to protect it against thieves and marauders, and that the servant owes the duty so to protect it to his employer. But this does not include the power in question. It cannot be presumed that a master, by intrusting a servant with his property and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself if present. The master would not, if present, be justified in arresting, detaining and searching a person upon suspicion, however strong, of having stolen his goods and secreted them upon his person. The authority of the defendants to the superintendent could not, therefore, be implied from his employment. The act was not done in the business o-f the defendants, and they were not, as masters, responsible therefor.”

The rule thus laid clown is undoubtedly the law of such eases, and it was, therefore, not correct for the court to charge the jury that the Dare fact that Graft was employed to protect the goods of the defendants authorized him to arrest the plaintiff on suspicion and cause her to be searched to ascertain wiiether she had stolen goods about her person. The court went even further than this, and charged that if Graft, “ in doing what he supposed to be the exercise of his duty in protecting these goods, did an act which entailed loss or damage upon the plaintiff, the defendants are responsible for that act, and for any act of his, in doing what he supposed was his duty in detecting thefts or suppressing thefts, or in arresting thieves. If he was mistaken in his judgment in that matter the defendants are responsible. They are not only responsible for that, but foi any excess of authority, or any excess of his action in regard to that.” This was in effect making the mere supposition of Graft, as to the extent of his duty in protecting, the goods of the defendants, the measure of his authority to act- as the agent of the defendants and to make them liable for any or all excesses that he might commit based upon his own supposition of duty. This was carrying the liability of the defendants, for the acts of their servants, beyond that imposed by any established rule of law. Under it, if Graft supposed he had the right to assault and beat, or even shoot down any person whom he suspected of stealing his employer’s goods, the employers .would be liable for the act, because of his mistaken supposition. That the court meant that its language should be understood by the jury as going that length, is shown by a subsequent portion of the charge, in which, after speaking of Graft’s telling the officer that he had been informed that the plaintiff had stolen a corset, he said : “Now, if, in doing that, he supposed he was acting within the scope of his authority, and it was entirely within his duties, these defendants are liable for the act, if it was wrongful in its nature.”

The' case was, therefore, submitted to the jury substantially upon the proposition that whatever wrongful act a servant (employed to perform particular duties) does, charges the employer if the servant supposes it to be within the scope of his authority, thus making the ‘liability depend upon the supposition of the servant as to the extent of his authority, rather than upon the authority actually conferred ■or implied. We do not understand this to be the law. Under the charge the jury might well have found that Graft had no authority from the defendants to arrest the plaintiff on suspicion, or to cause liei to be arrested and searched, and that such acts were altogether outside the scope of his duties, and yet, because he supposed he had authority the defendants were chargeable with all he did. The jury were probably misled from the consideration of the real question, as laid down by the Court of Appeals in the case above cited, to an erroneous view of the law to which the facts as found by them were to be applied. For this error we see no other course than to reverse the judgment and direct a new trial.

The motion for a new trial, on the ground of excessive damages, ought, we think, to have been granted. On the former trial a verdict for $800 was rendered. On the pi’esent trial the verdict was for $5,000. It is conceded that the defendants had no participation in the alleged wrong, and knew nothing about it, yet a verdict was rendered against them in a sum which seems to us strongly to show that the jury must have been governed by passion, prejudice, or other exciting cause outside the real merits of the case. It is not necessary, however, to pursue this question, inasmuch as a new trial must be granted for the error of law above considered.

The judgment and order should be reversed and a new trial granted, with costs to abide the event.

Daniels, J.:

I agree that the court misdirected tho jury as to the principle of liability, and that their verdict was excessive, and that the judgment should for these reasons be reversed, the verdict set aside and a new trial ordered.

Brady, J.:

The learned justice in the court below seems to have erred in stating the law governing cases like this laid down by the Court of Appeals, and there must be a new trial. In this I concur, but in this only.

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


source: Caselaw Access Project

author: Yan Brunt, P. J. :

license: Public Domain

text:
    MARIE DIETRICH, Administratrix, etc., of LOUIS DIETRICH, Deceased, Respondent, v. JULES DREUTEL, Appellant.

      Evidence — admissibility of testimony showing the course of dealings between the parties prior to the date of the contract, for a breach of which the action was brought.

    This action was brought to recover an alleged balance of account for goods sold and delivered, between April 4th and August 11th, 1879, to the defendant by one Poiret, which cause of action was assigned to the plaintiff’s intestate, by whom the action was commenced. Under a general denial the defendant sought upon the trial to prove the relations existing between the defendant and Poiret prior to April 4, 1879, and to show the arrangement under which their dealings were carried on prior to that time, and that no new arrangement was made as to the subsequent dealings.

      Held, that it was error for the referee to exclude the evidence upon the ground that, under the pleadings, the inquiry must be limited to the goods delivered after April 4, 1879.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered in New York county, upon the report of a referee.
    This is an action brought to recover an alleged balance of account for goods sold and delivered between April 4 and August 11, 1879, to the defendant by one Alexis Poiret, which caus.e o£ action was duly assigned to Louis Dietrich, who was the plaintiff in this action at the time it was commenced. The defendant, by his answer, denied each and every allegation in the complaint and alleged payment. The action was tried before a referee, and pending such trial the plaintiff died and the action was revived in the name of the present plaintiff as administratrix. Subsequently the referee reported in favor of the plaintiff for the amount claimed and interest. The defendant, upon the trial of the action, sought to prove the relations existing between the defendant and Poiret, the assignor of the claim, prior to the 4th of April, 1879, and to show the arrangement under which their dealings were carried on prior to April 4, 1879, and that no new arrangement was made between them as to the dealings subsequent to April 4, 1879. This evidence was excluded by the referee upon the ground that “ inasmuch as the complaint claims from April 4, 1879, and the answer is a general denial, inquiry must be limited to the goods delivered from the 4th of April, 1879.” To this ruling of the referee the defendant duly excepted, and this appeal brings up this exception with others.

      Charles Robinson Smith, for the appellant.

      Hugh Reavey, for the respondent.
   Yan Brunt, P. J. :

It has not been considered necessary in the foregoing statement to refer to the various other exceptions which were argued upon the appeal, the one above referred to being fatal to the judgment, which has been rendered. The learned referee seems to have proceeded upon the theory that no evidence whatever could be given in relation to any agreement which might .have been entered into prior to the 4th of April, 1879, because the complaint limited the cause of action therein set forth to goods delivered subsequent to the 4th of April, 1879. The defendant sought to prove, by the evidence objected to, that there had been dealings between the defendant and the plaintiff’s assignor prior to the 4th of April, 1879, and that goods had been delivered by the plaintiff’s assignor to the defendant prior to that time, under a certain,, agreement, and that no new arrangement in reference to payment was entered into between the parties in relation to the goods delivered subsequent to the 4th of April, 1879.

The learned referee evidently erred in excluding this testimony. It is true that, as to the delivery of the goods themselves, the parties were restricted to the dates mentioned in the pleadings, but, under the general denial, the defendant had a right to prove any state of facts going to show that the allegation in the complaint was untrue, that the goods were delivered by the plaintiff’s assignor, and that he, the defendant, promised to pay the price therein named. If any agreement or contract had been entered into in reference to the delivery of goods prior to the fourth of April, and the goods in question were delivered thereunder, it is clear that the defendant would have the right to prove that agreement in order to show what the terms and conditions of the sale were, or whether it was to be considered, in view of that agreement, as any sale whatever. This, by the ruling of the referee, the defendant was precluded from showing. The question was repeated more than once, and evidence of an admission which was made by the plaintiff’s assignor, in reference to the arrangement between the defendant and the plaintiff’s assignor, under which goods were purchased and delivered, evidence entirely pertinent to the general denial and the question of payment, was excluded upon these same grounds.

It is urged, in answer to this objection, that at folio 31 the evidence that the relations prior to April fourth, as between the defendant and the plaintiff’s assignor, were exactly the same as subsequently, was admitted, but the referee excluded testimony tending to show what that arrangement, which existed prior to April 4, 1879, was, and therefore, although the evidence was offered establishing that the arrangement was the same before April 4, 1879, as it was subsequent to that date, the evidence as to what the arrangement was, was excluded.

This seems, as has already been stated, to have been error, as it precluded the" defendant from showing the terms and conditions under which the goods referred to in the complaint were purchased and delivered. In view of the conclusion to which we have arrived in reference to this exception, it is unnecessary to consider the other objections which were urged by the appellant upon the argument of this appeal.

The judgment must be reversed, with costs to the appellant to abide event, and the case referred back to a new referee to hear and determine. ,

Beady and Daniels, J J., concurred.

Judgment reversed, with costs to appellant to abide event; case referred back to a new referee to hear and determine.


author: "Van Brunt, P. J.: Brady, J.:

text:
    HANNAH COHEN and ABRAHAM COHEN, as Administrators, etc., of PISCHEL COHEN, Deceased, Appellants, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Negligence — when, the evidence is not sufficient to change a municipal corporation with knowledge of the negligent acts of persons acting under licenses received from it.

    The city of New York granted to one Marks a license to place his business wagon, when not in use, in the street in front of his grocery store. Marks kept the wagon near the curb with the thills turned up and fastened with a string. On October 20, 1879, at 6.30 A. m. , while the wagon was standing in front of Marks’ store, the thills being tied np with a string or piece of clothes line, an iceman’s cart passing by caught the wheels of the wagon, turned it around so that the shafts came down upon the sidewalk and struck the plaintiffs’ intestate, who was passing along the sidewalk, on his head with such force as to cause his death. The wagon was in use two or three times every day, and had been used the day before the accident, and it was the habit of Marks to leave the wagon in that place, when it was not employed, with the thills tied up in the manner described.
    Upon the trial of this action, brought to recover the damages caused by the death of the plaintiffs’ intestate, the plaintiffs claimed that the string or rope with which the thills were fastened was not sufficiently strong. The court directed a verdict to be entered in favor of the defendant, upon the ground that the evidence was not sufficient to authorize a jury to find that the city had notice of any want of safety or insecurity in the condition of the wagon, or that such insecurity had existed for so long a time, that notice thereof could be implied.

      Reid, that it did not err in so doing.
    Appeal from a judgment in favor of the defendant, entered upon a verdict rendered by the direction of the court.
    • This action was brought to recover the damages sustained by the next of kin of Pischel Cohen, in consequence of injuries sustained by him in the public streets of the city of New York.
    In April, 1879, the defendants granted a license to one Michael Marks to store a wagon used by him in his business, when not in use, in front of his grocery store in Attorney street in the city of York. Under that license Marks was accustomed to keep the wagon in the street, next to the curb, in front of his store, and to tie up the thills of the wagon and fasten them with a string. On October 20, 1879, at 6.30 a. m., the wagon of Marks was standing in front of his store, and the plaintiffs’ intestate was passing along the sidewalk, and the thills of the wagon were lifted and fastened up with a string or piece of clothes line; at the time, an ice wagon was coming down Attorney street, south from Houston to Stanton street, and, at the same time, another wagon, loaded with coal, was coming north, up Attorney street, from Stanton street. The ice man did not wish to give a chance to the coal man to pass, and he hit his horses in order to make them go as fast as they could, so as not to give the coal man any room. The street was narrow and the ice man’s wagon caught somewhere with the grocery wagon’s wheels and turned it around so that the shafts came down upon the sidewalk and struck the plaintiffs’ intestate with such force on his head as to cause his death.
    The evidence showed that the wagon was in use two or three times every day, and that it was the habit of Marks to leave the wagon in that place when it was unemployed, with the shafts tied up in the manner described. The plaintiffs, by their testimony, claimed to show that the string or rope with which the thills were fastened was not sufficiently strong to be used for that purpose. The defendant contended that the approximate cause of the accident was the fast and careless driving of the ice wagon, which came in collision with the grocery wagon, and that the testimony was insufficient to authorize a jury to find that the city had notice of any want of safety or insecurity in the condition of the wagon, or that such insecurity had existed for so long a time that notice thereof could be implied. The court, upon the trial of the case, dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

      W. E. Chedsey, for the appellants.

      David J. Dean, for the respondent.
   "Van Brunt, P. J.:

This action was previously tried, and came before this General Term upon appeal from a judgment rendered in favor of the plaintiff. (33 Hun, 404.) Upon that appeal it was held that even though the city had no legal right to grant a license to store or keep the wagon 'in the street, still, its liability for the particular injury which caused the death of Cohen could not be sustained, upon proof of tlie mere fact of granting the license, as that fact was not the immediate cause of the injury, such injury having resulted from the negligent driving of the ice wagon and the insufficient manner in which Marks had tied up the thills of his wagon. '

It was further held that, to make the city responsible for the injury, some evidence tending to show knowledge on its part, or notice in some form of the insecure or careless mode in which the wagon was stored in the street, must be shown. Having in view the rule of law thus laid down upon the previous appeal in this case, it is necessary to consider whether there was any evidence from which the jury were authorized to infer that the city had notice of the insecure manner in which the thills of Marks’ wagon were tied at the time of the accident in question. In considering this question we must bear in mind the fact that this wagon was used two or three times during the day, and that the thills were tied up after such use. There is no evidence going to show that the same fastening was used on every occasion. Upon the contrary, the only inference to be drawn from the evidence is that it was not tied up by the same string or rope upon every occasion. If this is the fact, then when can it be said that notice, as against the city, commenced to run. Each time the thills were tied up was an independent and separate act, and when the wagon was used, the consequence of that act ended; when the thills of the wagon were tied up anew then responsibility for that act commenced. It appears, from the evidence in this case, that the wagon was in use on the day before the accident happened ; that the shafts were tied up that night; that this accident happened at half-past six the next morning. Now, even if the shafts were improperly secured, sufficient time had not elapsed between the putting of the shafts in this insecure position and the happening of the accident to justify the jury in finding that the city had had notice. And, notwithstanding the expression contained in the,, opinion, when the case was before this court, that, if the thills had been securely and properly fastened, as they ought to have been, the fastenings would not have been broken by the blow which turned the wagon partially around and threw down the thills with such violence as to occasion the fatal injury,” it would seem that in the securing and fastening up of the thills that the owner of the wagon had no right to anticipate the severe shock to which the fastening was subjected by the wagon being run into as was described by the witnesses. It would seem that the cause of the accident was the negligence of the driver of the ice wagon, and not the negligence of the owner of the wagon in not tying up the thills of his wagon with a rope sufficiently strong to stand such a shock. The evidence in the case, therefore, seems to fail to show such notice to the city as would justify the plaintiffs in recovering.

Judgment appealed from should be affirmed, with costs,

Daniels, J., concurred.

Brady, J.:

I think the use of the street by the owner of the wagon was a continuous one, and for so long a period as to establish constructive notice of such use by the city and of all the consequences which were likely to result from such use. The wayfarer is entitled to protection, and a violation of this obligation should be punished whenever the city is chargeable with notice of an existing danger which ultimately does him injury.

Judgment affirmed, with costs.


author: Yan Brunt, P. J.:

text:
    ESTELLE D. BOWERS, Respondent, v. HOWARD M. DURANT, Appellant, Impleaded, etc.

      Partition of lands situated in another State — when an agreement that they shall le partitioned, in an action brought in this Slate, will estop a party from denying the jurisdiction of the courts of this State.

    To induce the plaintiff to withdraw objections made by her to the probate of the will of her father, an agreement, dated June 16, 1885, was entered into between the plaintiff and her brothers, Frederick, Charles and the defendant Howard, which provided, among other things, that if an actual partition should not be made of the real estate of the testator, by agreement, on or before January 1,1886, the plaintiff should at once commence and prosecute an action for a partition of the estate, the other parties stipulating not to commence such an action unless the plaintiff neglected so to do for one month after January 1,1886. It was also agreed that such partition suit should be brought to partition all the real estate of the father, whether the same was situated in the State of New York or elsewhere, and that the agreement might be pleaded as conferring jurisdiction, and that the parties thereto would execute deeds in accordance with the judgment to be entered therein.
    In this action, brought to partition the said lands, the plaintiff, on being notified that the defendant Howard, who had answered the complaint herein, had commenced actions in the States of Iowa and Nebraska to partition lands situated in these States, which were described in the complaint in this action, applied for and obtained an order restraining him from continuing these actions.

      Held, that the order should be affirmed.
    That objections taken by him that the courts of this State could not partition the lands in Iowa and Nebraska, and that there were infants whose rights must be protected, who were not parties to the agreement, were sufficiently answered by the fact that he, as a party to the agreement, consenting that such action might be brought, was estopped from denying the jurisdiction of the courts of this State.
    Appeal from an order, made at a Special Term granting an injunction restraining tlie defendant Howard M. Durant from prosecuting two partition suits, one in the State of Iowa and one in the State of Nebraska, until the issues raised in this action could be determined. '
    In April, 1885, Charles W. Durant, residing in the city of New York, died seized of certain lands described in the complaint hereinafter mentioned, .situated in New York, Nebraska and Iowa. Mr. Durant left a last will and testament and a codicil thereto, which were duly admitted to probate by the surrogate of the city of New York on the 18th of July, 1885. The plaintiff began a contest over her father’s will, and this resulted in an agreement between the plaintiff herein and her brothers, Frederick C. Durant, Charles W. Durant and Howard M. Durant, bearing date the 16th of June, 1885, which agreement resulted in the withdrawal of opposition to the probate of said will and the codicils thereto, upon the terms and conditions therein provided. Amongst other things it was provided by said agreement that if an actual partition should not be made of the real estate of the testator by agreement on or before the 1st day of January, 1886, the plaintiff herein should at once file a complaint and Us pendens for a partition thereof, and should prosecute such suit to judgment with all reasonable speed, and the other parties to the agreement stipulate not to commence such a partition suit unless the plaintiff neglected to do so for one month after January 1, 1886. It was further provided by the said agreement that said partition suit should be brought for the purpose of partitioning all the real estate of the testator, whether the same was situated in the State of New York or elsewhere, and that all necessary consents should be executed by the parties to the agreement in order to give the court jurisdiction therein, and that the agreement might be pleaded as conferring such jurisdiction, and the parties thereto agreed to execute deeds in accordance with any judgment that might be rendered. No amicable division of the real estate having been arrived at between the plaintiff and her brothers prior to the 1st of January, 1886, the plaintiff, on the 4th of January, 1886, instituted the present action, setting forth the aforesaid agreement, describing at length the real estate of which the testator died seized, situated in the States of Nebraska and Iowa, and setting forth the rights, titles and interests of all the parties therein, and praying judgment that the agreement might be carried out and all the aforesaid lands and premises be partitioned among the parties entitled thereto, according to their respective rights and interests.
    On the thirtieth of January Howard M. Durant answered said complaint. In April, 1886, the plaintiff herein was notified that the defendant,'Howard M. Durant, had • instituted a suit in Iowa, whereby he sought partition of the identical lands and premises described in the complaint in this action, located in the State of Iowa. The object of this suit was to obtain a partition of the lands and premises described in the plaintiff’s complaint, situated in the State of Iowa. The plaintiff was also served with a notice that the defendant, Howard M. Durant, had brought a suit in the courts of Nebraska to obtain a partition of the lands and premises described in her complaint as situated in the State of Nebraska.
    An application upon this state of facts was made to the court in this action for an injunction restraining the defendant, Howard M. Durant, from continuing those actions, upon tho ground that it was a Adolation of the agreement of the 16th of Juno, 1885, and that by a continuance of such actions the plaintiff’s rights under the agreement were imperiled.
    The defendant claims the right to institute the suits in Iowa and Nebraska, upon the ground that no partition of those lands can be bad in the courts of this State. Upon the bearing of the motion the injunction was granted by order, and from this order this appeal is taken.

      Carlisle JVorwood, Jr., for the appellant.

      John Boioers, for the respondent.
   Yan Brunt, P. J.:

The whole argument of the appellant is based upon the claim that no partition of the Iowa or Nebraska lands can be bad in the courts of this State; that the courts of this State cannot affect such lands either by an actual partition or otherwise; that there are infants whose rights must be protected, who are not parties to the agreement of the I6th of June, 1885, and are, therefore, not bound by the same.

It seems to be a sufficient answer to these objections to observe that the defendant, Howard M. Durant, the party against whom this injunction runs, was a party to that agreement, and as such party be consented that a partition suit might be brought in the courts of this State for the purpose of partitioning all the real estate of his father, whether the same was situated in the State of New York or elsewhere; that the agreement might be pleaded as conferring jurisdiction, and that be would execute deeds in accordance with any judgment that might be rendered in such action. This be agreed to do for the purpose of obtaining a withdrawal of the plaintiff’s contest to the admission to probate of bis father’s will and codicil. It is true that the agreement contained other provisions which it is not necessary to observe in discussing this question. He having secured, by .means of this agreement, bis ends in procuring the probate of bis father’s will, cannot now be beard to say that because certain other parties are not partiés to this agreement that the provisions therein cannot be carried into effect.

As far as be is concerned, by that agreement he is estopped from denying the jurisdiction of the courts of this State, and the suit contemplated by that agreement having been brought within the time limited, be is precluded by the terms of the agreement from attempting to violate it by bringing actions in other States.

It is entirely unnecessary upon the disposition of this appeal, for us to determine at the present time as to what relief the plaintiff may obtain in this action. It is enough to say that the plaintiff has complied with the conditions to be performed upon her part, contained in the agreemeut, and upon such compliance the defendant has agreed not to commence suits in other States for the partition of any of those lands, and he, having received his part of the consideration for the agreement, must be held to perform the covenants entered into upon his part. The objection that the agreement expressly reserved the right to this defendant to resist such actual partition upon the ground that the same cannot be justly, legally or equitably made, alters in no respect the position of the plaintiff herein, as it is evident that all that was contemplated by that provision of the agreement was that any of the parties had the right to insist upon a sale if actual partition could not be made. The defense is to consist of resistance to actual partition and nothing more.

We are of the opinion, therefore, that the defendant, having made his agreement, should be held to its terms.

Order affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Pee Cueiam :

text:
    CATHERINE McINTYRE, Appellant, v. CHARLES CLARK and Others, Respondents.

      Final judgment in an action for dower — the sum fixed therein, as equal to one-third of the rental, cannot be subsequently altered by an order — Code of Civil Procedure, sec. 1613.
    On December 12,1885, a decree was entered in this action adjudging the plaintiff to be entitled to dower in the premises owned by the defendant and described therein, and fixing the sum, to which she was entitled, as one-third of the yearly rental value of the property, at $211, paable quarterly. After making two quarterly payments the defendant, upon affidavits stating that the rents received did not equal the sum allowed by the decree, moved for and obtained an order directing that the plaintiff should receive one-third of the net rents which should be actually received, and no more.

      Held, that as the court had, as required by section 1613 of the Code of Civil Procedure, fixed a sum equal to one-third of tlie rental value of the real property, and specified the same in the decree, the court had no power to alter such final judgment as it had attempted to do hy the order appealed from.
    Appeal by the plaintiff from an order made at Special Term, modifying a decree in favor of the plaintiff against the defendant Clark, fixing her annual payments for dower, by providing that she should receive “ one-third of the net rents which shall be actually received, and no more.”
    Upon December 12, 1885, a decree was made in this action adjudging the plaintiff to be entitled to dower in the premises owned by the defendant and described therein, and fixing the sum to which she was entitled, as one-third of the yearly rental value of the property, at $211, payable quarterly. Upon September 10,1886, less than a year after the entry of the decree, the defendant made this application to the court for leave to pay to the plaintiff one-third of the actual net rentals as received,-and no more. The application was made upon the affidavit of the defendant’s agent and attorney, upon the ground that the rents received, less expenses, did not equal the sum allowed by the decree.

      L. L. Kellogg, for the appellant.

      Hof man Miller for the respondent.
   Pee Cueiam :

Section 1613 of the Code requires that a fixed sum, equal to one-third of the rental value of the property, shall be ascertained by the court and specified in the final judgment, which sum shall be paid to the plaintiff annually, and that the sum so to be paid was to remain a charge upon the property during the natural life of the • party entitled to dower. This sum having been ascertained and fixed by the final judgment, the court had no power, to alter such finaL judgment, by providing that a party entitled to dower should receive one-third of the net rents which should be actually received from the property, and no more.

The order should be reversed, with ten dollars costs anb disburse* ments.

Present —Yan Beunt, P. J., Beady and Daniels, JJ.

Order reversed, with ten dollars costs and disbursements.


author: Per Curiam :

text:
    JAMES L. BENNETT, as Assignee, etc., of CHARLES N. GOBLE, Appellant, v. ADDISON S. GOBLE and Others, Respondents.

      Practice - — power of the court to compel an assignee to gire security for costs— Code of Civil Procedure, sea. 3271.
    The power conferred upon the court, by section 3271 of the Code of Civil Procedure, to require an assignee for the benefit of creditors to give security for costs, iu an action brought by him, is a discretionary power, which should not be exercised unless reasonable grounds exist therefor.
    Appeal from an' order made at a Special Term, upon notice to the plaintiff, directing him to file a bond in a penalty of $1,000, or, at his option, to deposit that amount with the clerk as security for costs.
    The - action was brought by a general assignee of one Charles N. Goble to partition lands of his father, George S. Goble, who died, leaving a last will and testament, against Charles N., William S., George S. and Addison S. Goble, his children, and Sarah J. Goble, his widow. Byhis will the testator gave and devised all his property to his executors in trust, to sell the same when they should deem it to be to the best advantage of his said estate to do so, and to divide the proceeds equally among said four children. .

      A. J. Perry, for the appellant.

      Jacob Fromme, for me respondent.
   Per Curiam :

Unless in every case in which an assignee is plaintiff it is proper to require security, there do not seem to be sufficient facts in the case at bar to justify the order requiring the plaintiff to give security in the sum of- $1,000. Security in cases of this kind is a matter of discretion, and such discretion should not be exercised against an assignee unless there are reasonable grounds therefor.

The order must be reversed, with ten dollars costs and disbursements to the appellant to abide the event.

Present — Yan Brunt, P. J., Daniels and Bartlett, J J.

Order reversed, with ten dollars costs and disbursements to abide event.


author: Brady, J.:

text:
    THEODORE F. BALDWIN, Respondent, v. THOMAS MORGAN and Others, Appellants.

      Sight of a lessee to paint signs on, the outside walls of demised premises — when he may do so in the absence of any restrictive covenant.

    The plaintiff, as a tenant, occupied the first story and basement of a portion of a building owned by the defendants,which formed part of the south-west corner of Broadway and Twenty-seventh street. For the more successful prosecution of his business, the plaintiff caused to be painted on the Twenty-seventh street wall of the first story of the building, which was embraced in the premises demised, certain pictures, signs and devices, which he regarded as suitable and appropriate for the advertising of his wares. The pictures were somewhat original in their application, striking and impressive, and seemed to he well drawn and to have been executed by a de'eorative painter of ability. The defendants having threatened to erase the pictures the plaintiff procured an order restraining them from so doing, from which this appeal was taken.

      Meld,, that as it was shown that the paintings did not extend beyond the premises leased to the plaintiff, and the lease contained no restriction as to signs, the order should be affirmed.
    That as the scenes or pictures were germain to the plaintiff's business, and not unseemly or calculated to offend the public eye, being, indeed, rather attractive and amusing, the defendants must submit to the inconvenience, if any, of their continuance.

      Riddle v. Littlefield (53 N. H., 503) followed.
    Appeal from an order continuing an injunction.

      John M, Bowers, for the appellants.

      De Laney Nieoll, for the respondent.
   Brady, J.:

The plaintiff, who is a tenant of the defendants occupied, the, first story and basement of their premises, known as 1159 Broadway, and forming part of the south-west corner of Broadway and Twenty-seventh street. The premises were occupied by the plaintiff under two leases, by one of which the plaintiff leased the store for the sale of leather goods, and the other secured the basement under the store for the storage of manufactured leather goods. For the more successful prosecution of his business, the plaintiff caused to be painted on the Twenty-seventh street wall of the first story of the building, which was embraced within his lease, as we have seen, certain pictures, signs and devices, which he regarded as suitable and appropriate for the advertising of his wares. The pictures are somewhat original in their application, striking and impressive, and they seem to be well drawn and to have been executed by a decorative painter of ability. The defendant, Thomas Morgan, who represented the defendants, threatened to erase the pictures, and the plaintiff, claiming that if the threats were carried into execution he would be injured in his business, procured an order restraining the defendants from interfering with the signs and pictures mentioned, and requiring the defendants to show cause why the restraint should not be made permanent. Upon the hearing, the defendants insisted that their premises were injured by the signs or pictures, but the court determined to continue the injunction, and hence this appeal.

The proof establishes that the paintings or signs did not extend beyond the premises leased to the plaintiff, and the leases contained no restriction as to signs. The contention of the defendants seems to be that that portion of the outer wall inclosing the plaintiff’s premises is not leased, and that the paintings or signs have decreased the rental value of the premises. The wall, as it exists, is certainly a portion of the premises which were demised to the plaintiff, and he succeeded during his term to the use of that wall under his lease, subject only to the right of the landlord to prevent waste, as contended by the respondent’s counsel.

It is said, in Taylor on Landlord and Tenant (page 172), that a tenant, by the right of exclusive occupation, becomes entitled to 'the premises in the same manner as the owner, except that he must do no act to the injury of the inheritance.

In Wood on Landlord and Tenant, section 581, it is said that fmless special reservation in certain particulars is made, the tenant succeeds to all the rights of the landord ; that they are annexed to the estate, so far as the possession and enjoyment of the premises aré concerned, immediately upon the commencement of his term, and it seems that an injury to the inheritance or heirs must be some permanent or material alteration, rendering it difficult, if not impossible, for the tenant, when his term expires, to surrendei the premises Tn' their original condition. (Winship v Pitts, 3 Paige, 260.)

The precise question which, may be regarded as presented for consideration in this case, namely, the right of the tenant to use the outside wall of the premises demised to him, for advertising purposes, has not been decided in this State. It has been, however, in a very well considered case in New Hampshire, which is reported in 53 New Hampshire, 503, under the title of Riddle v. Littlefield. There it appeared that the defendant had leased the outer side of the'wall to three persons for advertising purposes. The plaintiff claimed the amount of rent received by him for the use of the outside .wall, and the question was as to his right to recover. The court held that the tenant had acquired, by his lease, the right to the use and occupation, outside the walls of the building, to that portion of the tenement which included the store. The outside wall of the building leased passed by the lease as much as the inside of the wall. The outside of the wall, said the court, is but one side of the same wall that has a near side, and the removal of the wall removes both sides, and it was further said of the tenant: “ He may suspend his wares upon the building if nobody is incommoded thereby, and he may cover the outer walls with his advertisements of -the merchandise which he keeps for sale within if he does not injure the building nor obstruct the public passage, nor offend the public eye and taste, by unseemly exhibitions, or otherwise violate the laws.” This doctrine is stated in Sloan on Landlord and Tenant, at page 48.

The scenes or pictures being germain to the plaintiffs business, and not being unseemly or calculated to offend the public eye, and being, indeed, rather attractive and amusing, it would seem that the defendant must submit to the inconvenience, if there be any, of the continuance of these signs or pictures. The record does not disclose any predominating facts favoring interference with the plaintiff’s rights in the manner in which they have been exercised, and we are not called upon, therefore, to reverse the order appealed from, which, we think, should be affirmed, but, as the question is novel, with ten dollars costs and disbursements to abide the event.

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

Order affirmed, with ten dollars costs and disbursements to abide the event.


author: Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. ANDREW J. WIGHTMAN, Appellant Indicted with Others.

      Penal Code, sec. 558 — what facts constitute the crime, of foi'warding tlweatening letters, specified therein.

    The appellant was tried and convicted upon an indictment, the third and fourth counts of which charged, in substance, that the defendants sent and caused to be forwarded to and received by one Sears, a letter written to him by the attorney of a woman, both of whom were parties defendant, stating that he had sexual intercourse with the woman, and that she was pregnant, and asking whether he would malee suitable provisions for her, and thereby avoid publicity, or whether it would be necessary to take legal steps in the matter, thereby threatening, falsely and unjustly, to cause and procure him to be put to great charge and expense of his moneys, and give security for the maintenance of the child of which the woman named in the letter was alleged to be then pregnant, and that the defendants knew the contents of the letter, and intended by means thereof to extort and gain money from the person to whom it was written and by whom it was received. The fifth count contained similar allegations, averring the writing and sending of the letter threatening to expose Sears to and to impute to him disgrace, and to falsely and publicly accuse him of certain immoral conduct, which, if true, would tend to and would degrade and disgrace him, and averred that the letter was sent and forwarded to and received by Sears, and that this was done by the defendants with the intent, and by means thereof, to extort and gain money from Sears.

      Held, that the facts charged constituted the crime specified in section 558 of the Penal Code, which declares it to be a crime for any person, knowing the contents thereof, and with intent by means thereof to extort any money or other property, or to do, abet or procure any illegal or wrongful act, to send, deliver, or in any manner cause to be forwarded or received, any letter or writing threatening to expose or impute to any person any deformity or disgrace.
    Appeal from a judgment of the Court of Oyer and Terminer convicting the appellant of a violation of section 558 of the Penal Code of the State of New York.
    The indictment contains six counts, the last of which the people elected to abandon on the trial. The fifth count, upon which mainly the people relied, was drawn, under subdivision 4 of section 558 of the Penal Code, and charges that the said defendant Andrew J. "Wightman, jointly with one Charles W. Bolles, one May A. Thatcher and Samuel J. Lowell did, with full knowledge of the contents thereof, and with intent, by means thereof, to extort money from one Charles O. Sears, feloniously send, and cause to be forwarded to and received by said Sears, a certain letter and writing threatening to expose him, the said Sears, to, and to impute to him disgrace, to wit, to falsely and publicly accuse the said Charles C. Sears of certain immoral conduct, which, if true, would tend to and would degrade and disgrace the said Charles C. Sears, that is to say, that he, the said Charles O. Sears, had then, lately before, had sexual intercourse with and carnal knowledge' of said May A. Thatcher, she being a single woman, and he, the said Charles C. Sears, not being lawfully married to her, and having then, at the time of the alleged sexual intercourse and carnal knowledge, a lawful Avife living, and that, by reason thereof, she, the said May A. Thatcher, was then pregnant with child, which was likely to be born a bastard, and which said letter and writing was in words as follows:
    “ Law Offices of Charles W. Bolles, )

      57 Broadway, N. Y. )
    “New York, May 25, 1886.,
    “ Charles F. Sears, Esq., Buffalo, N. Y.:

    “ Dear Sir. — I Avrite you, as attorney for Miss Maie Livingston, of this city (meaning the said May A. Thatcher), who states to me-that on or about the tenth of February last she met you on Sixth-avenue, this city, and went with you to St. Omar Hotel, and there* had sexual intercourse with you, and as a result is now with ehild. by you.
    “ I suppose you are aware that, under those conditions, you- are-liable for the support of the child and the mother’s expenses during: her sickness. Are you willing to make suitable provisions for said: liability and thereby avoid publicity, or will it be necessary to> take-legal steps in the matter ?

      “ Awaiting your reply, I remain,
    “ Truly yours,
    “ CHABLES W.. BOLLES*:”

      Thomas M. Tyng, for the appellant.

      Mackenzie Semple, assistant district attorney, for’the-people;-
   Daniels, J.:

The case containing the exceptions, as it has been settled, states that the people, to maintain the issues on their part, introduced evidence tending to prove the acts charged in the first five counts of the indictment. At the close of the evidence, given to prove the charges contained in those counts, an application was made for the acquittal of the defendant on the ground that the acts charged in such counts and proved by the evidence were not sufficient to constitute a crime, and that the evidence was not sufficient to warrant a conviction of the crime therein charged, in that the letter or writing did not threaten to do any or either of the acts specified in section 558 of the Penal Code. The motion was denied, and to the decision made the defendant excepted.

These were the only objections taken to the case made against the defendant at the trial, and they present the simple question whether proving the acts set forth in the first five counts of the indictment constituted a crime under this section of the Code. To determine this point it becomes necessary to examine those counts of the indictment; and such an examination, particularly oü the third, fourth and fifth counts, discloses the acts of the defendant to be such as to include the sending, and causing to be forwarded to and received by one Charles C. Sears, the letter contained in ’ each of these counts of the indictment, thereby threatening, falsely and unjustly, to cause and procure him to be put to great charge and expense of his moneys and give security for the maintenance of a child of which the woman named in the counts was alleged to be then pregnant, and that the appellant, with the other defendants, knew the contents of the letter, and intended, by means thereof, to extort and gain money from the person to whom it was written, and by whom it was received. That is the substance of the third count of the indictment. The fourth is very much the same in substance, while the fifth contains similar allegations, averring the writing and sending of the letter threatening to expose Sears to, and to impute to him, disgrace, and to falsely and publicly accuse him of certain immoral conduct, which, if true, would tend to and would degrade and disgrace him. To this statement is superadded the averment that the letter was sent, and forwarded to and received by Sears and contained, the charge of improper conduct included in the other counts, and that this was done by the defendants with the intent, and by means thereof, to extort and gain money from Sears.

The case was argued by the defendant’s counsel upon the theory that it wholly depended upon the language and import of the letter itself. If this position was sound, and the letter was written and forwarded for the purpose of indemnifying or protecting May A. Thatcher, named in the indictment, no offense would have been committed and the argument of the counsel would undoubtedly be sound. But that is not the case as the indictment presented it, and the evidence tended to prove the facts, for the averments contained in the indictment extended far beyond the writing and sending of the letter for any purpose of protection or indemnity to this woman, and averred the facts to be that the object in writing and sending the letter to Sears was to extort and gain money from him by falsely and publicly accusing him of the immoral conduct described and set forth in those counts. These were as much the acts referred to, and which the evidence tended to establish, as the writing and mailing of the letter itself. They were, each of them, distinct parts of the crime intended to be charged, and, in substance, they disclose the facts to be that the appellant, with the other defendants, caused this letter to be written and sent to Sears, intending thereby to extort money from him by the threat communicated through the letter, of publicly and falsely making the accusation mentioned against him to render this extortion successful. These are the prominent acts set forth in the indictment ana bring the case within this section of the Penal Code, by which it has been declared to be a crime for any person knowing the contents thereof, and with intent by means thereof to extort any money or other property, or to do, abet or procure any illegal or wrongful act, to send, deliver, or in any manner cause to be forwarded or received, any letter or'writing threatening to expose or impute to any person any deformity or disgrace. The indictment was framed under this construction and language of the statute. By its allegations it brought the case within those provisions, and as the evidence sufficiently tended to prove them to support the verdict rendered by the jury, the judgment from which the appeal has been taken should be affirmed.

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

Judgment affirmed..


text:
       CHRISTIAN T. CHRISTENSEN, Appellant, v. GARDNER R. COLBY, Executor, etc., of GARDNER COLBY, Deceased, Respondent, Impleaded, etc.

      Action by a judgment creditor to enforce the liability of a stockholder — the latter may set off claims held by him against the corporation — a judgment will be affirmed, if correct, although a wrong reason has been given by the cowrt below.

    The plaintiff having recovered a judgment against a foreign corporation, and issued an execution thereon, which was returned unsatisfied, brought this action to charge the estate of the defendant’s testator, who was a stockholder in such corporation, with the amount unpaid upon certain stocks of the corporation, and also with the amount of certain bonds which had been received by the testator. The court below dismissed the complaint upon the ground that the action was barred by the statute of limitations, and also found, as was alleged in the answer, that the estate of the testator was the equitable owner of five-sevenths of certain judgments recovered against the corporation which, in amount, were more than would be sufficient to pay the plaintiff’s claim.

      Held, that although the court erred in holding that the action was barred by the statute of limitations, as was decided in Christensen v. Quintard (36 Hun, 334), yet, as the interest in the judgments owned by the estate furnished a good set-off as against the plaintiff’s claim, the judgment of dismissal should be affirmed.
    Appeal from a judgment dismissing' the complaint, entered at Special Term. The complaint in this action demanded judgment against the defendant on the ground that his testator Gardner Colby was a stockholder of the Illinois and St. Louis Bridge Company, for a certain sum alleged to remain unpaid upon stock issued to said testator, and also, for the value of certain bonds alleged to have been issued to the testator without value.

      G. E. Tracy, for the appellant.

      W. B. Eornblower, for the respondent.

       Decided January 8, 1886.

   Brady, J.:

The plaintiff was a judgment-creditor of the Illinois and St. Louis Bridge Company, a corporation chartered in Illinois and Missouri, and Gardner Colby, the defendant’s testator, was a stockholder. The plaintiff obtained a judgment against the company in duly, 1882, and an execution having been returned unsatisfied, this action was brought to charge the testator’s estate for stocks and bonds of the company, received by him under circumstances by which he incurred a liability.

The facts alleged and proved on behalf of the plaintiff were similar to those which were established in the case of Christensen v. Quintard (36 Hun, 334), decided in this department in May, 1885. The defendant, however, interposed a defense by way of set-off, alleging that the estate of Gardner Colby was the equitable owner of five-sevenths of certain judgments against the company, and which, in amount, were more than sufficient to pay the plaintiff’s claim.

Many requests to find were submitted on the part of the plaintiff, which were rejected for the reason that the material facts and conclusions contained in them wei’e covered by the findings of the defendant as settled. The complaint was dismissed, however, on the ground that the statute of limitations had applied and barred the plaintiff’s right to recover. The complaint was dismissed, therefore, notwithstanding the findings of fact upon the conclusion of law just stated, namely, that the action was barred by the statute of limitations.

In the case of Christensen v. Quintard (supra), this court on appeal declared that the statute of limitations did not apply to facts similar to those proved in this action. And if there was no other and controlling element in the case sustaining the conclusion at which the learned justice in the court below arrived, it would be necessary for us to reverse the judgment. But it conclusively appears that the set-off, which was set up on behalf of the estate of Gardner Colby, was more than sufficient in amount to pay the liability urged in this action against that estate. And this being an action against a single stockholder, or his representative, the off-set is one the validity of which, as equitable in its character, is recognized in a series of cases. (Briggs v. Penniman, 8 Cow., 387; Garrison v. Howe, 17 N. Y., 458; In re Empire City Bank, 18 id., 199, 227; Mathez v. Neidig, 72 id., 100 ; Agate v. Sands, 73 id., 620.) The reasoning in these cases seems to apply not only to the liability imposed upon stockholders by the statute, but to equitable liabilities which may be invoked in behalf of a creditor.

In Garrison v. Howe (supra), Denio, J., said : “ Suppose a stockholder to be a creditor to just the amount of his stock, he ought not to be required to pay anything, unless the sum of the corporate debts is larger than the aggregate of all the liabilities of the stockholders. But he cannot, in this class of actions, have an account, because the proper parties are not before the court. He must, therefore, upon the doctrine of the plaintiff in this suit, pay the debt sued for, though, in equity, he is not liable for anything.” “ If the creditor cannot find a responsible stockholder, who is not at the sainé time a .creditor to the amount of his stock, he must proceed for an account if he ascertains that such a proceeding will result in recovering his debt.”

And in Mathez v. Neidig (supra), Chief Judge Church said: ‘ ‘ I agree with the counsel for the appellant that the statute liability constitutes a fund which belongs to the creditors to secure the payment of their debts, but it belongs to all the creditors, as well those who are stockholders as those who are not.”

Assuming the set-off, therefore, to be a proper response to the acción, the judgment of dismissal can be maintained, notwithstanding it was pronounced upon an erroneous legal conclusion. For it seems to be'well established that a judgment which is proper upon the facts found will not be reversed for the reason that the conclusion of law of which the judgment is predicate was incorrect. (Scott v. Pilkington, 15 Abb. Pr. [Sup. Ct., Gen. Term, First Dept.], 280 ; Marvin v. Universal Life Ins. Co., 85 N. Y., 278 ; Arnot v. Erie Railway, 67 id., 315.)

It is not deemed necessary, having arrived at the conclusion stated, to examine the other reasons assigned by the respondent’s counsel for the maintenance of the judgment.

The judgment must, therefore, be affirmed, with costs.

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


author: Per Guriam.

text:
    SOLOMON MARX and Another, Respondents, v. BERNARD SPAULDING and one ROBERT W. TAILER, a Witness, Appellants.

      Examination of a witness in supplementary proceedings — Code of Civil Procedure, sea. 2460 — what questions, as to Ms having in his hands money of the debtor, hie may be compelled to answer — when hie should not be compelled to sign the deposition.

    Appeal by Robert W. Tailer from an order of M . Justice Barrett directing him, as a ¿witness in supplementary proceedings, to answer certain questions which he had been directed to answer by the referee in the proceedings and had declined to answer.
    The plaintiffs are judgment creditors of Bernard Spaulding, in the sum of $23,000, embraced in four judgments. They procured an order for his examination in supplementary proceedings before a referee. Before calling Tailer as a witness the debtor and three other witnesses had been examined. Their testimony tended to show a large amount of money to be in the hands of this witness belonging to the 'debtor. Tailer was represented by counsel upon the examination- who interposed objections to almost every question asked the witness, including each of the five questions which, under the order appealed from, he has been directed to answer. It is intended by these questions to prove that Tailer held three lots of land at Fiftieth street and Fourth avenue, as security for $30,000, which the debtor owed him; that he obtained the title to these three lots upon the arrangement that he should hold them merely as security for this debt; that he has sold the property, and has now about $15,000 of the proceeds in his possession.
    The court at General Term said: “We think the order in this case should be affirmed. The provisions of section 2460 of the Code authorized the examination which was contemplated by the questions which were objected to, and which the learned justice in the court below decided to be perfectly proper. The section referred to provides that the witness shall not be excused from answering a question on the ground that his examination will tend to convict him of the commission of a fraud, or to prove that he has been a party or privy to or knowing of a conveyance, assignment, transfer or other disposition of property for any purpose, or that he or another person claims to be entitled, as against a judgment creditoi*, or a receiver appointed, or to be appointed, in a special proceeding to hold property derived from or through the judgment debtor; and this embraces the object in view by the examination. We think, however, that the witness should not be required to sign his deposition, inasmuch as his so doing might, in view of some authorities, subject him to a legal liability not otherwise existing.
    “ The order to be entered upon this appeal should contain a provision to the effect that the witness shall not be required to sign his deposition, and that his examination shall be without prejudice to any of his legal rights, and the order, as so modified, should be affirmed, without costs to either party.’’

      Burnett & Whitney, for the appellant.

      8. TJntermeyer, for the respondent.
   Opinion

Per Guriam.

Present — Yan Brunt, P. J., Brady and Daniels, JJ.

Order modified by providing that the witness shall not be required to sign his deposition, and that his examination shall be without prejudice to any of his legal rights, and as so modified affirmed, without costs


author: Learned, P. J.: Landon, J. :

text:
    ESTHER WATSON, Appellant, v. THE CITY OF KINGSTON, Respondent.

      Right of a city to establish the grade of streets — it is not liable toan adjoining property owner damaged thereby— nor is it obliged, to use for filling the road-way a material impervious to water.

    This action was brought by the plaintiff, the owner of a lot on Ravine street, in the city of Kingston, to recover damages alleged to have been occasioned by the act of the defendant in illegally changing the grade of Ravine street so as to cause large quantities of water to flow upon the plaintiff’s lot. It appeared upon the trial that the plaintiff, after obtaining title to the lot, built a house upon it, with a cellar under the sidewalk, as it then was, which was covered by flagstones; that thereafter an ordinance was duly passed establishing the grade of the said street, and that subsequent thereto the said street was graded in accordance therewith, and an assessment for the cost of the work was laid and completed. The plaintiff gave evidence tending to show that since the grading of the street water had come into her house and injured it, and that this had never happened before the grading.

      Held, that an order dismissing the complaint should be affirmed upon the authority of Urquhart v. OgdensbUrg (91 N. Y., 67); Lynch v. Mayor (76 id., 60).

      Urquhart v. Ogdensburgh (97 id., 238); Byrnes v. Gohoes (67 id., 204); Noonan v, Gity of Albany (79 id., 470); Seifertv. Brooklyn (101 id., 136) distinguished.
    The plaintiff claimed that the road-way was filled with broken stones and fragments of stones, and that it was the percolation of water through these stones and fragments which caused the injury.

      Held, that the fact that fragments of stone instead of clay, or some such material, was used did not make the city liable for the damages sustained.
    That the city was not hound to use impervious material for filling in its streets,

      Appeal from a judgment in favor of the plaintiff, entered upon an order dismissing the complaint, made at the Ulster Circuit.

      /S. I. Siebbms, for the appellant.

      John J. Linson, for the respondent.
   Learned, P. J.:

The complaint avers plaintiff’s ownership of a house and lot of land, describing it, on Ravine street; the grading by the defendant of Ravine street in an illegal manner and without authority of law; the building of a wall and embankment by defendant in front of plaintiff’s house, rendering access difficult; the construction of such wall and embankment negligently, so as to cause water to run on plaintiff’s premises; the gathering by defendant illegally of large quantities of water and causing them to flow down Ravine street, without finding means to carry them off, and thus the pouring the same on plaintiff’s premises.

On the trial the plaintiff was nonsuited at the close of the evidence, and she appeals. She obtained title in 1868, and a house was built soon afterwards on the lot, with a cellar under the sidewalk, as it was then, covered by flagstones, and extending some seven feet into Ravine street. In 1879 an ordinance was passed establishing the grade of Ravine street. It is not claimed that this was not legally passed. In 1883 an ordinance was passed for the grading of Ravine street according to the grade thus established, and requiring the construction of sidewalks. The contract was awarded the same year. The grade was modified the same year, and subsequently, about August, 1883, the work was reported as complete, and an assessment was laid to pay the same. The plaintiff gave evidence tending to show that since the grading of the street water had come into her house and had injured it, and that this had never happened before the grading. She claimed to show that the filling in of the street opposite her premises was of loose stone and fragments of rock, and that the water percolated through and thus entered her house.

In Urquhart v. Ogdensburg (91 N. Y., 67) it is said that the duty resting on a municipal corporation to make improvements, .such as streets, sewers, etc., is quasi judicial or discretionary, and that this rule is applicable as well to work done as to a design proposed. The approval of the plan when completed is as much a judicial act as the design of it. The court further said in that case that it must be assumed that such discretion was also exercised in carrying out the plan in laying. down and constructing the new walk, which was a walk made without any authority (so far as appeared) from the city. Now it appears in the present case that the sewers, the course of the street, the grade, etc., were all parts of the plan adopted by the common council.

This same doctrine has been upheld in cases quite analogous to the present. (Wilson v. Mayor, etc., 1 Den., 595; Radcliff’s Exr’s v. Mayor, etc., 4 N. Y., 195; Mills v. Brooklyn, 32 id.,. 489; Lynch v. Mayor, 76 id., 60.) Without going over these cases in detail we may refer to the last of them, especially, as one which sustains the doctrine of the court below in this case.

In Urguhart v. Ogdensburg (97 N. Y., 238), four judges of the-Court of Appeals criticise the language used in the former opinion and, perhaps, lay down a different rule from that asserted when that case was in that court before. But the difference refers to the effect of changes made in the sidewalk by owners without the express authority of the common council, and, therefore, leaves the general doctrine undisturbed.

There is a class of cases, such as Byrnes v. Cohoes (67 N. Y., 204) and Noonan v. Albany (79 id., 470), in which a city has been held liable for collecting the waters from an area and by means of some conduit or sewer turning them upon lands of the plaintiff where they would not have gone by the natural slope of the land. It does not seem to us that the facts in the present case bring it within the very clear and well defined doctrine of those cases.

In Seifert v. Brooklyn (101 N. Y., 136), the Court of Appeals have somewhat qualified the doctrine that the city is not liable for the exercise of its judicial or discretionary power. They say that where the exercise of such power results in a direct and physical injury to property of an individual, which from its nature is liable to be repeated and continuous, but which is remedial by a change of plan, the corporation is liable for such damages as occur in consequence of the continuance of the original cause, after notice m,d an omission to adopt measures to remedy the evil. In the present case, however, it does not appear that there was notice to the city and an omission by the city to.adopt measures to remedy the evil.

In the case last cited a sewer had been constructed; within a short time after its construction actual use demonstrated that it had not sufficient capacity to carry off the accumulations of water and matter turned into it; and the sewage was forced through the man-holes and inundated the district where plaintiff resided, injuring. his property. Afterwards lateral sewers were constructed, emptying into this main sewer and increasing the water which went into it, thus making the defects of the original plan still greater.

It appears, in the present case, that the gutter along the street by •plaintiff’s house was laid, not by the city but by plaintiff’s husband, •and was laid with cobble-stones; and there is some evidence that .the cobble-stones were not well laid. And plaintiff’s husband, at one part of his testimony, after stating that they had cobble-stone for gutter-stone, adds, that is where the whole detriment is.”

The plaintiff urges on the argument that the road-way was filled ■with broken stones and fragments of stones, and that it was the percolation of water through these stones and fragments which caused the injury. We cannot think that the filling in the roadway with fragments of stone, instead of using clay or some such ■material, would give a cause of action to plaintiff. Water will percolate through sand, through gravel, and through nearly every kind of filling, unless it be very compact clay, yet we do not think a city is bound to use impervious material for filling in its ■streets.

We cannot repeat, in any detail, all the evidence given in this case, which is quite voluminous. But after examining it, in the light <of the decisions which we have cited, we are brought to the conclusion that the learned justice was correct in nonsuiting the plaintiff, and we think it cannot be of any use to comment at length on the testimony. That plaintiff’s house has been injured is seemingly not disputed; and it is evident that the situation of the house •and of its sidewalk were such that -it was not easy to grade the street without some inconvenience to the plaintiff. As the lot was lower than the grade there would be a tendency for water to soak through the-earth and thus to reach the house. But, upon the whole, we do not think that the action of the defendant was such as to render it liable in this action.

The judgment should be affirmed, with costs.

Landon, J. :

I concur. I think Radcliff,s Executors v. Mayor (4 N. Y., 195) covers this case. The damage the plaintiff sustained was because of the difference in grade between the street and her lot, and that difference did not suffice to charge the defendant with negligence because of the use of ordinary'material. '

Judgment affirmed, with costs.


author: Bockes, J.: Landon, J.

text:
    ROBERT C. MARTIN, Appellant, v. MARIA ANN RECTOR, Respondent.

      Ejectment — when the fifteen days' notice required by section 1505 of the Code of Civil Procedure must be given.

    This action of ejectment was brought by the plaintiff, the assignee of two several instruments, known as YanBensselaer leases,each of which contained a covenant by the lessee to pay the rent, and a provision authorizing the lessor to distrain in case it should be unpaid, and also conditions, by one of which it was provided “that if it should at any time happen that no sufficient distress can be found upon the premises to satisfy such rent due and in arrear as aforesaid, or if either of the covenants and conditions hereinbefore contained ” should not he kept and performed, then the said Van Rensselaer, his heirs and assigns, might re-enter. On the trial the plaintiff was nonsuited because of his failure to allege and prove the giving of the fifteen days’ notice required by section 1505 of the Code of Civil Procedure.

      Held, that the ruling was sustained by the decision of the Court of Appeals in .Van Rensselaer v. Snyder (13 N. Y., 299); Sonne v. Ball (19 id., 100); Same v. Slingerland (26 id., 580); Hosford v. Ballard (39 id., 147), and that the question was not open for discussion in this court. (Landon, J., dissenting.)
    Appeal from a judgment dismissing the complaint, entered in Rensselaer county upon the report of a referee.
    The action was brought by the plaintiff, the assignee and owner of two of the leases in fee, known as the Yan Rensselaer leases. Each lease contained covenants by the lessee to pay the rent and a provision authorizing the lessor and his heirs and assigns to distrain for any rent unpaid, and also numerous conditions, by one of which it was provided “that if it should at any time happen that no sufficient distress can be found upon the premises to satisfy such rent due and in arrear as aforesaid, or if either of the covenants and conditions hereinbefore contained, on the part of the said parties of the second part, their heirs and assigns, to be performed, fulfilled and kept, shall not be performed, fulfilled and kept, or shall be broken, that then, and in each and every such case, from thenceforth, and at all times thereafter, it shall and may be lawful to and for the said Stephen Yan Rensselaer, his heirs and assigns, or any of them,” to re-enter upon the said premises.

      Rosendcde & Ilessberg, for the appellant.

      Geo. W. Miller, for the respondent.
   Bockes, J.:

The action was ejectment by re-entry for the non-payment of rent. On the trial .before a referee, the plaintiff was nonsuited and the complaint dismissed, because of the omission to allege and prove the giving of the fifteen days’ notice provided for by section 1505 of the Code of Civil Procedure, which superseded section 3 of chapter 274, Session Laws of 1846.

This ruling seems well sustained by several decisions in the Court of Appeals, both directly and inferentialiy. (Van Rensselaer v. Snyder, 13 N. Y., 299; Same v. Ball, 19 id., 100, on page 108; Same v. Slingerland, 26 id., 580 ; Hosford v. Ballard, 39 id., 147, on page 152.) The provisions in the leases here counted on, giving the right of re-entry, are, as will be seen on examination and comparison, precisely the same as in the three cases first above cited.. Those cases are, as is also Hosford v. Ballard (supra), to the effect that on a lease conditioned as are these, the right of re-entry for non-payment of rent is made to depend on the service of the fifteen days’ notice before suit. We do not deem this question open here to discussion.

It should bo noted that when the right to re-enter arises on default of payment of rent, and is not made to depend on a sufficiency of goods, whereon to distrain, the fifteen days’ notice is unnecessary. (Hosford v. Ballard, supra; Cruger v. McLaury, 41 N. Y., 219.) Such, however, according to the decisions first above cited, is not this case. Here, as is there held, the right to re-enter was given in case no sufficient distress could be found upon the premises to satisy the rent in arrear. The right to re-enter did not arise simply on an omission to pay the rent reserved and agreed to be paid. It is true the provision following that giving the right to re-enter for failure of distress, also in terms gives such right, “if either of the covenants and conditions hereinbefore contained * * * shall not be performed, fulfilled and kept, or shall be broken,” one of which covenants was for the payment of rent at the time specified; and it is urged by the appellant’s counsel that, under this provision, the right of re-entry is preserved to the landlord, independent of the other right given him in case of failure of distress. This contention seems to be sustained by the remarks of Jewett, Ch. J., in Van Rensselaer v. Jewett (2 N. Y., 141, on page 146). Whether these remarks were or were not concurred in by the other members of the court is not made directly to appear, although such would be the inference probably, and they would doubtless be controlling in this court, in the absence of any later case in the Court of Appeals holding them unsound. But the later cases, particularly the first three above cited, wherein the provisions of the leases there considered were the same as here, hold, as it seems, to a different construction of the proviso, and assert the rule to be that, under the provisions contained in the lease here counted on, the fifteen days’ notice is made essential to the right of action in ejectment for non-payment of rent. We are of the opinion that the question here presented is determined favorably to the defendant by the cases cited.

The judgment should be affirmed, with costs.

Learned, P. J., concurred.

Landon, J.

(dissenting):

I cannot concur. By this lease the landlord had the right to re-enter upon default in payment of rent, without any reference to the question whether there was a sufficiency of goods whereof distress could be made. Section 1505 of the Code of Civil Procedure, requiring fifteen days’ notice, applies to a lease in which the right of re-entry is given in default of sufficient distress, but does not apply where the right to re-enter depends upon the mere nonpayment of rent. (Hosford v. Ballard, 39 N. Y., 147; Cruger v. McLaury, 41 id., 219.

Now, in addition to the absolute right to re-enter for non-payment of rent, this lease also contains the right to re-enter “ if no sufficient distress can be found upon the premises.” The plaintiff does not count upon this covenant, and if he did, he should not fail, if, alleging two sufficient causes, he made one good. It seems unsound to hold that the plaintiff cannot maintain the first covenant of his lease, because he has not attempted to maintain the second; the two covenants being independent. Van Rensselaer v. Jewett (2 N. Y., 141) supports this position. The lease there was precisely like' this. Subsequent cases in which the point did not arise are cited as authority for the contrary doctrine. Every judge knows how difficult it is to limit his language to the precise point he needs to decide, and the little consideration his language deserves when it covers new points which he did not have to consider. In Snyder's Case (13 N. Y., 299); Ball's Case (19 id,. 100); and Slingerland's Case (26 id., 580); the fifteen days notice was given. Hence there was no need to consider the effect of not giving it, and hence they do not detract from the authority of Van Rensselaer v. Jewett (supra).

Judgment affirmed with costs.


author: Learned, P. J.:

text:
    MARY A. SHARPLEY, Respondent, v. FRANK BROWN and DANIEL CONNELLY, Appellants.

      Civil damage act — when the remarriage of the plaintiff may he shown as hearing upon the question of damages.

    Upon the trial of this action, brought by the plaintiff, under the civil damage act to recover damages sustained through the death of her husband, which was alleged to have been caused by intoxicating liquors sold by the defendant, it was proved, without objection, that the plaintiff, after remaining unmarried two and a-half years, was married again to a brother of the deceased with whom she was living at the time of the trial. This evidence was subsequently stricken out by the court, and similar evidence again' offered by the defendant was excluded.

      Held, that the court erred in so doing.

      That the evidence was admissible as bearing upon the question as to the degree in which plaintiff had been injured in her “means of support.”

      Volans v, Owen (74 H. Y., 536) followed.
    Appeal by defendants from an order denying a motion.to set aside a verdict rendered at the Albany Circuit, in favor of the plaintiff for $1,250, and from the judgment entered on the verdict.
    The action was brought by the plaintiff, as the widow of James Sharpley, deceased, to recover damages sustained by her from his death, alleged to have resulted from his intoxication, which was caused by liquors sold to him by one of the defendants, a hotel-keeper, who was the tenant of the other defendant.
    It was proved on the trial, without objection, that the plaintiff, after remaining the widow of the deceased from July, 1882, to January, 1885, a period of two years and a-half, was then married again to a brother of the deceased, with whom, as her husband, she was living at the time of the trial, and who gave her a better support than her first husband. The court subsequently, of its own motion, struck out this evidence, the plaintiff’s counsel stating that they did not ask to have it stricken out, and the defendants’ counsel excepting thereto. The defendants, at a later stage of the trial, again offered to prove the same facts, and the evidence was rejected.

      Doyle <& Fitts, for the appellant Brown.

      F. J. Meegan, for the appellant Connolly.

      L ’Amoreaux dé Dake, for the respondent.
   Learned, P. J.:

In Volans v. Owen (74 N. Y., 526), which was a.n action for injury to “ means of support,” the court say that the accustomed means of maintenance must have been cut off or curtailed, and that “ diminution of income or loss of property does not constitute an injury to means of support within the fair intendment of the statute, if the plaintiff, notwithstanding, has adequate means of maintenance from accumulated capital or property, or his remaining income is sufficient for his support.”

This remark shows that actions, under the so-called civil damage act, are different from those of which a large number are cited by the plaintiff’s counsel, as, for instance, Terry v. Jewett (78 N. Y., 338), Kellogg v. New York Central and Hudson River Railroad Company (79 id., 72) and the like. In actions for common-law injuries to the person the damages would not be diminished by the possession of “accumulated capital or property” by the injured person. But in this class of actions the court say that such possession not merely might diminish the damages, but might altogether .defeat the action. (Stevens v. Cheney, 36 Hun, 1.)

Now the possession of another husband might be as useful to this plaintiff as the possession of “ accumulated capital or property,” so far as the means of support were concerned. It is true that she could not have been in possession of another husband at her first husband’s death. But if, shortly after her first husband’s death, she had come into the possession of such property as gave her an ample support, it seems to us, under the decision above cited, that this might have been shown upon the trial. Evidently the possession of such property at the husband’s death may be shown, notwithstanding the' possibility that the property might afterwards be lost or become worthless. So it seems to us, as the court have said that the primary purpose was the protection of the dependent and helpless, that it is material to show to what extent the plaintiff is dependent and helpless.

This cause of action was unknown to the common law, and cannot be made analogous to qther actions. The plaintiff evidently thought the evidence of the second marriage was proper, because she made no objection to it when given. It was subsequently stricken out by the court, the plaintiff saying that she did not ask to have it stricken out, and an offer of similar evidence was after-wards made and the' evidence was excluded. To illustrate, let us suppose that the husband had not died, but had only been disabled from working by his intoxication, and that plaintiff had sued for loss of means of support. Would it not be material, on the question of damages, to show that she had left her husband and was living with, and supported by, another man ? So in the present case, she is (but lawfully) living with, and entitled to the support of, another man, her present husband. Hoes not this condition affect the extent of injury to means of support which she suffers by the former husband’s death ?

Objection is also made as to proof that plaintiff had six children. The court very properly held that the plaintiff could not recover for any damages which the children had sustained. In looking at the testimony objected to we find that it was brought out on cross-examination by plaintiff’s counsel, and that the defendant’s counsel had previously inquired as to the condition of the family of the deceased prior to his death, how they were clothed and fed. Now it might be material and proper, as tending to show whether the deceased failed in respect to his duty, for plaintiff to prove how large the family was, and under the circumstances we think there was no error in this respect. Without examining the other questions which are presented, we are of the opinion that the evidence of the marriage of the plaintiff to another husband should not have been stricken out, and that defendant was entitled to have that considered by the jury on the question of damages.

The judgment and order should be reversed and new trial granted, costs to abide event.

Landon, J., concurred.

Judgment and order reversed, new trial granted, costs to abide event. _


text:
    HORACE J. ALLEN, Appellant, v. GEORGE C. CLARKE, Respondent.

      Failure of trustees to malee the report required by section 12 of chapter 40 of 1848, as amended by chapter 510 of 1875 — a judgment for costs is not a debt within the meaning of that section.

    A judgment for costs against a corporation, recovered in an action for trespass commenced by it, is not such a debt of the corporation as will make a trustee thereof liable therefor because of a failure to make the report required by section 12 of chapter 40 of 1848, as amended by chapter 510 of 1875.
    Appeal from an interlocutory judgment, entered in St. Lawrence county, overruling a demurrer interposed by the plaintiff to the third defense set up in the defendant’s answer.
    The action was brought against the defendant as a trustee of the Clifton Mining Company, a corporation organized under the act of 1848, for the incorporation of mining and other companies, to recover the amount of an aliened debt of the company, as a penalty for not making an annual report of the capital paid in, and the debts due from said company.
    The complaint alleges as the foundation of the plaintiff’s claim that the said Clifton Mining Company began an action against Starbuck, McCarty & Co. (the plaintiff’s assignors), for the wrongful taking and carrying away of certain logs from the lands of said company, and the conversion of the same; that said Star-buck, McCarty & Co. interposed a defense, and that such proceedings were duly had therein that judgment was rendered in their, the defendants’ favor, for $701.37 on September 21, 1885; that said judgment was afterwards duly assigned to the plaintiff, and the complaint then proceeds to allege the defaults of the company in the years 1886, 1885 and 1881. The third defense in the answer alleges that the said judgment was recovered for the costs and disbursements of the defendants in the action brought against them by the company, and not otherwise, and that the action was brought for the cause of action set forth in the complaint, viz., conversion. The plaintiff thereupon demurred to the third defense, and the Special Term overruled the demurrer. From the interlocutory judgment entered thereon, the plaintiff brings this appeal.

      JS. II. Heary, for the appellant.

      Lou%s Hasbrouok, for the respondent.
   Learned, P. J.:

The single question presented by this appeal is, whether a judgment for costs against a corporation in an action for trespass commenced by it is such a debt of the corporation that the defendant, a trustee, is liable therefor, on the ground of the failure to make the report required by the twelfth section, chapter 10, Laws 1818, as amended by chapter 510, Laws of 1875.

The judgment was recovered September 21, 1885. The failure to make the report was in January, 1881, 1885 and 1886. The last only is material. The judgment was in January, 1886, an existing debt; and, if a report had been made, should have been included therein as such. But the liability expressed is : “for the debts of the company then existing and for all that shall be contracted before such report shall be made.” Thesé words, shall be contracted,” explain the words “ existing debt,” and limit them to such debts as the corporation has contracted. In no accurate sense can the corporation be said to have contracted this judgment for costs, although a judgment is sometimes spoken of as a contract.

The case of Miller v. White (50 N. Y., 137) seems decisive of this case. In that case it was held that the judgment against the corporation was not even prima faeie evidence of the debt against a trustee in an action like the present. It was held to be necessary, therefore, to prove the debt by evidence other than the judgment. To do that would be impossible in this case. There was no debt prior to the entry of the judgment. No proof could be given (other than the judgment) of any debt of the corporation, because no such debt existed prior to the judgment. And if the judgment is not even prima facie evidence, then no evidence can be given ; and for a very good reason, viz., that the corporation owed no debt until the entry of the judgment made it a debtor. The spirit of the statute does not embrace this case.

The interlocutory judgment should be affirmed, with costs.

Mayham, J., concurred; Landon,' J., concurred on first ground.

Judgment interlocutory affirmed, with costs, with leave to withdraw demurrer on payment of costs.