author:
LbaeNed, P. J.:
      Booses, J.

text:
    JOHN N. DRESSEL, Respondent, v. THE CITY OF KINGSTON, Appellant.

      Costs — action against a municipal corporation — who is to he deemed its chief fiscal ofilcér— Code of Civil Procedure, sec. 8245.
    'The plaintiff having recovered a judgment against the city of Kingston, the defendant, for the damages occasioned by his falling into a hole in the sidewalk, moved for and obtained an order directing the clerk to tax costs and ■ disbursements in his favor. Upon the motion for such order an affidavit was made by the treasurer of the city, in which he stated that at the time of the accident and of the commencement of the action he was “ the chief fiscal officer” of the city and that the claim had never been presented to him. It appeared that, prior to the commencement' of the action, the plaintiff had presented his claim to the mayor and common council of the defendant, by which body all claims against the city were to be audited, and that it had been rejected.

      Meld, that the treasurer was to be deemed the chief fiscal officer of the city, within the meaning of those words as used in section 3245 of the Code of Civil Procedure, and that as the plaintiff’s claim had not been presented to him costs could not be awarded to the plaintiff. (Boches, J., dissenting.)
    Appeal from an order of tbe Ulster County Court awarding to the plaintiff bis costs and disbursements herein, and directing the clerk to tax the same and insert them in the judgment.
    The plaintiff began an action in .the Ulster County Court to recover damages for personal injuries claimed to have been sustained by bim in falling into' a hole by reason of the unsafe condition of the sidewalks of defendant. He had never, before the commencement .of the action, presented the claim upon which the action was founded to the treasurer of the city for payment, or tor any purpose, lout he had presented it to the mayor and common council and they had rejected it. The cause was tried and a verdict rendered in plaintiff’s favor for the sum of $300. The clerk having declined on objection to insert costs in the judgment a motion was made to compel him to do so. Upon the hearing an affidavit of the defendant’s treasurer 'was read, in which he said “ ¿hat during all the time between the occurrence of the accident, on account of which this action is brought and the commencement of this action, he was the treasurer of the said city of Kingston and the chief fiscal officer thereof.”

      John J. Jinson, for the appellant.

      E. S. Wood, for the respondent.
   LbaeNed, P. J.:

The affidavit of Grove Webster, used on this motion, states positively that at the time of the occurrence and of the commencement of the action he was the chief fiscal officer of the city of Kingston. There is no affidavit denying this. He further states that he was the treasurer; which word would itself seem (unless some contrary proof were given) to indicate that he was the chief fiscal officer. At any rate, the fact is not disputed on the affidavit. And if we look at the charter, chapter 150, Laws of 1872, we find the authority for the appointment of a treasurer, and we find no other person who can be called the chief fiscal officer. I do not think that to make section 3245 of the Code of Civil Proceedure applicable it is necessary that the officer be denominated “ chief fiscal officer.” Those words are descriptive and in this case they describe the treasurer of Kingston. Hence under Baine v. City of Rochester (85 N. Y., 523), it is of no consequence that this officer was not authorized to adjust the claim That case decides this.

Order should be reversed, with ten dollars costs and printing disbursements and motion denied, with ten dollars costs.

BoaedmaN, J., concurred.

Booses, J.

(dissenting):

This is an appeal from an order allowing costs of the action to the plaintiff. The plaintiff had a recovery in his favor for $300 damages in an action for negligence. The defendant insists that he. is not entitled to costs, because of his omission to present his claim for damages for payment to the defendant’s treasurer before the commencement of the action. (Code of Civil Pro., § 3245.) The plaintiff answers that although he did not present his claim to the defendant’s treasurer he did so present it to the mayor and common council of the appellant, which was by them rejected.

The law of 1859 (Sess. Laws of 1859, chap. 262, § 2), relating to the allowance of costs in cases of recoveries against municipal corporations, was held not to apply to actions for unliquidated damages arising ex delicto. (McClure v. Supervisors of Niagara, 50 Barb., 594; affirmed in Ct. of App., 4 Abb. [N. S.], 202; Butler v. City of Rochester, 4 Hun, 321; Quinlan v. City of Utica, 11 id., 217; affirmed, 74 N. Y., 603.) Section 3245 of the Code of Civil Procedure is more specific and comprehensive in its language than was the law of 1859. That section is as follows : “ Costs cannot be awarded to the plaintiff in an action against a municipal corporation in which the complaint demands judgment for a sum of money only, unless the claim upon which the action is founded was, before the commencement of the action, presented for payment to the chief fiscal officer of the corporation.” It will be observed that this provision embraces every case in which judgment is demanded in the complaint “ for a sum of money only,” hence it is not to be limited in its effect to actions on contract.

The plaintiff’s claim in this case was, before the commencement of the action, presented for payment to the mayor and common council of the city, and was by them rejected. According to the decision in Butler v. The City of Rochester (4 Hun, 321), such presentation and the rejection of the claim by the municipai authorities, should be held to be a sufficient compliance with the law in a case like the present, where the corporate powers were so distributed that the officer, who from his duties might be assumed to be the chief fiscal officer of the corporation, has no power to reject or to allow and pay the claim if presented to him. The court here remarked as follows: “ The claim was presented to the common council, who alone could'authorize its payment, and it was rejected. The treasurer is a subordinate officer. The relation between him and the common council in matters of this kind resembles that of an agent to his principal, and a presentation to the higher authority is equivalent to one to the lesser.” It should be added that the purpose of the law is answered in such case, that purpose being this: that the claim should be laid before the common council for its action by allowance or disallowance, having in view the saving of costs in ease it should be found right and just.

It is suggested and urged that the decision above cited is overruled by the Court of Appeals in Bain v. The City of Rochester (85 N. Y., 524). We think otherwise. What was there decided was this: that it was no answer to the requirement of the provision of law there under consideration that the chief fiscal officer of the city was not authorized to adjust or pay the claim on presentation.” This decision was made in direct obedience to the law which in-that case expressly declared that the city treasurer should, “ by virtue of his office, be the chief fiscal-officer of the city.” (Laws of 1880, chap. 14, § 72.) The law itself so declared, so there was nothing open in that regard for intendment or construction. This provision did not exist in 1875 when the Butler case was decided, but was a new provision brought into the consolidated charter of the city of Rochester, adopted in 1880. The decision in Bain’s case does not therefore touch the decision in Butler’s case, which holds good in a case like the present, where there is no law expressly declaring who shall be “ the chief fiscal officer ” to whom presentation of a claim against the city should be made. Tire subject is here open to intendment. That the treasurer is such officer can be upheld only by force of construction. But why hold that one who performs ministerial duties, merely, is the chief fiscal officer of the corporation in preference to those on whom devolve the right and power to act discretionary or quasi judicially- in the particular matter 1 Besides, if presentation be made to the treasurer, the purpose of the law might be frustrated by his omission to layj the claim before the municipal officer or officers charged with its audit. And again, some municipal corporations of the State have no treasurer, but in his place have an officer designated “ receiver of taxes,” with auditors and village trustees and president in the place of a common council. Now, it is tbe chief fiscal officer to whom presentation should be made; not to an inferior or subordinate one. It is directed to be made to officers of the highest grade having the fiscal affairs of the municipality in charge. Chief fiscal officers are not those who may merely handle money placed in their hands for disbursement, in contradistinction to those who are authorized to manage and direct fiscal affairs. In view of the subordinate duties which pertain to the office of treasurer, and of the superior right and power of the common council over the fiscal affairs of the municipality, and inasmuch as the subject is open to construction, I am constrained to adhere to the conclusion declared in Butler’s case.

The order appealed from should De affirmed, with ten dollars costs of appeal and expenses for printing.

Order directing clerk to insert costs reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. ,


source: Caselaw Access Project

author: By the Court. :

license: Public Domain

text:
    THE WEST TROY WATER-WORKS COMPANY, Respondent, v. THE VILLAGE OF GREEN ISLAND, Appellant.

      Temporary injunction — when it should not he granted — when the use of water hy a village for public purposes will not he restrained on the application of the company furnishing it.

    By chapter 102 of 1881 the defendant was authorized to contract for a supply of water for public-purposes in the village with the plaintiff, a corporation formed under chapter 737 of 1873, providing for the creation and formation of waterworks companies in towns and villages in the State. In pursuance of a contract entered into under the said law the plaintiff supplied water for certain hydrants and drinking fountains at an agreed price down to June, 1883.' Being unable to agree upon the price to be paid in the future for the water to be supplied, the plaintiff brought this action to restrain the defendant from using the hydrants or drawing water therefrom.
    Upon an appeal from an order granting a temporary injunction to that effect:
    Held, considering that the privilege of laying the pipes in the streets imposed a duty to the public upon the' company, that no irreparable injury could be inflicted upon the company by the use of the water, and that the village relied upon the existing arrangement to guard itself against fire; that the cpurt below erred in granting the temporary injunction.

      Appeal from an order made at a Special Term granting a preliminary injunction restraining the defendant from using or interfering with the hydrants, mains, etc., of the plaintiff.
    The West Troy Water-Works Company is a corporation organized ' under the general law of 1873, authorizing the formation of waterworks companies in towns and villages. It was organized principally for the purpose of furnishing water to the village of West Troy. "By section i of the act referred to (chap. 737, Laws of 1873) it had the right to lay its mains in the streets or avenues of Green Island, which is a village adjoining West Troy and in the same town. By chapter 102 of the Laws'of 1881 the defendant was empowered by the legislature to contract with the plaintiff for the use of its water for public purposes. In pursuance of this law the plaintiff and defendant on the 18th of May, 1881, entered into a contract by which the plaintiff agreed to supply the defendant with water for fire and drinking purposes from twenty hydrants for the period of two years for the sum of $2,000 per year. The contract'was after-wards extended for one month, or until June 1,1883. Prior to the expiration of this contract the plaintiff notified the defendant that it could not continue to furnish water for less than $2,500 per year, and offered to increase the number of hydrants to twenty-five, in accordance with the said statute of 1881. The defendant refused to enter into such a contract, or to pay more than $2,000, and up to the commencement of this action had persisted in such refusal. Though no contract was executed the defendant, as the moving affidavits show, continued to use the plaintiff’s hydrants for the extinguishment of fires, and the president of the defendant has threatened to continue such use. The defendant receives its protection from fire from hose companies using the hydrants of the plaintiff, which afford sufficient head for that purpose. Finding that the defendant would not enter into the proposed contract, and was still determined to use the plaintiff’s hydrants if its officers thought it necessary, the plaintiff commenced this action to restrain such use, and upon a complaint and affidavit setting forth the above facts moved for an injunction.

      Henry A. King, for the appellant.

      JSsek Cowen, for the respondent.
   By the Court. :

It is not necessary now to decide whether, on a final hearing, the court might, or might not, restrain the defendant. (Powers v. Village of Athens, 19 Hun, 165.) There are several reasons why, in our opinion, the present injunction should not be maintained.

The plaintiffs were incorporated for the purpose of supplying water. For that purpose they are permitted to enjoy certain privileges of laying their pipes in streets and the like. Like railroad corporations therefore, and other similar bodies, they owe a duty to the public to perform the purposes of their organization. We are not therefore ready to say, that they have an absolute right to refuse to supply water, except at such price as they may choose to fix. At any rate, if they have such right, its exercise may be very inequitable and ought not necessarily to be aided in equity.

This case, then, is not one where a defendant is trespassing upon the rights'of a plaintiff, who owes him no duty. It is more like the case of one who desires to send goods by a railroad, while the railroad insists upon a price which he considers excessive. A court of equity would not restrain the owner of the goods from shipping them, although the parties could not agree upon the price.

Again, no argument is needed to show that there is no irreparable injury. The plaintiffs have for several years supplied the defendant with'water, in the very manner in which the defendant now seeks to enjoy it. The plaintiffs are still able and willing to give the same supply, only they demand a higher price. Therefore the question is only one of money. The previous acts of the plaintiffs in supplying water to defendant has not caused irreparable injury to the plaintiffs. It can cause none to continue the supply.

Again the plaintiffs say it would be impossible to determine the value of the use of the water, if defendant should continue to use it. How cau this be ? The parties determined the value before at .a certain price. There is no impossibility in determining it again. What the parties determined for themselves must be capable of determination by a tribunal, if the parties do not agree. Again, public interest demands that this injunction shall not stand. The protection of the village from fire is so important,.that equity ought not to interfere summarily and suddenly with this protection, even though the plaintiffs might have some difficulty or delay in obtaining tbe compensation which they claim. The village has relied upon the existing arrangement to guard itself against fire. This is so important to life and property that it would be an improper use of equitable powers to break up the arrangement suddenly, merely to promote the pecuniary benefit of the plaintiffs.

These remarks are made solely with reference to this injunction. What may be just between these parties upon a final hearing; how the disagreement as to price is to be determined; whether it can or cannot be determined in this suit; whether a failure to agree might not, in the end, justify a final judgment enjoining the defendant, and many other matters are left undecided.

The injunction should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

Present — Leakned, P. J., Booxes and Boardman, JJ.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


author: Bocees, J.:

text:
    JOHN N. DRESSELL, Respondent, v. THE CITY OF KINGSTON, Appellant.

      Oily — liability of, for injuries sustained by one passing along the sidewalk because of a hole therein — it is not excused by the fact that the contractor making it agreed to prevent all accidents.

    The city of Kingston entered into a contract with one Langan for the grading of certain of its streets. The work was to he done under the direction and to the satisfaction of certain of the city officers, and Langan agreed to adopt and take all necessary precautions for the prevention of accidents during the progress of the work. The plaintiff while passing along the sidewalk fell into a hole therein, which had been blasted by the contractor’s servants for the purpose of setting the curb-stone, and left uncovered and wholly unguarded. Held, that the city was liable for the injuries sustained by the plaintiff.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover damages for injuries sustained by the plaintiff from falling into an excavation in the sidewalk of one of the defendant’s streets.

      John J. Idnson, for the appellant.

      JE. S. Wood, for the respondent.
   Bocees, J.:

The appellant, the city of Kingston, contracted with Patrick. Langan for the "grading of a part of Pierpont street and other streets in the city. The work was to be done under the direction and to the satisfaction of the ci ty officers .named, and it was stipulated that Langan should adopt and take all necessary precautions for the prevention of accidents during its progress. This last requirement he omitted to observe, but having, by his servants, blasted a hole in the sidewalk, near the foot-path, for the purpose of setting the curb-stone, he left it uncovered and wholly unguarded by lights or otherwise. The plaintiff on passing along the walk fell into the excavation and was injured. On the trial he had a recovery.

The appellant now urges as grounds of law (1) that the cause of injury was the negligence of Langan, the contractor, or of his servants, for which the city was not responsible, and (2) that there was contributory negligence on the part of the plaintiff. In answer to the last point it is sufficient to say that the question of contributory negligence was for the jury on all the circumstances of the case as disclosed by the proof. It seems that the excavation was made only a few hours prior to the accident, and after the plaintiff had recently passed the locality in safety, going and returning from his house to his business. The time was early evening, but it had already become very dark; no guards had been placed around the excavation, nor was it covered, nor was there any indication of danger by lighting the place or otherwise, nor was there any question as to the right of the plaintiff to pass along the walk, as he was doing, and evidence was given as to the manner -in which he was pursuing his way. The case was plainly for the jury on the question of contributory negligence.

On the other point, that the negligence complained of was that of Langan, for which the city was not responsible, the case falls directly within the decision in Storrs v. The City of Utica (17 N. Y., 104), where the defendant’s liability was declared, in a case much like the present, on the facts. The question discussed in the case cited was also considered in McCafferty v. S. D. and P. M. Railroad Company (61 N. Y., 178), and so also in Vogel v. The Mayor (92 id., 10-17, etc.), where tbe difference was again noted between a case like the present and that of Blake v. Ferris (5 id., 48), that of Pack v. The Mayor (8 id., 222), and that of Kelly v. The Mayor (11 id., 432). See, also, Brusso v. City of Buffalo (90 id., 679), and Smith v. Simmons (29 Alb. L. J., 109). The doctrine of the case last cited is this, that where the injury occurs by reason of the negligent acts of workmen, over whom the corporation has no control, and done by them in the performance of the work contracted for, as in the case of negligently blasting out rocks under a contract with the corporation for grading streets, the latter is not liable. But, as stated by Judge Comstock, in Storrs v. The City of Utica, where the accident does not occur because of the manner in which the work is carried on by the laborers, but because of the result of the work itself, however skillfully performed, creating in itself a nuisance, liability of the employer or ultimate superior ensues. The learned judge in Storrs’ case says, that “ although the work may be let out by contract, the corporation still remains charged with the care and control of the street in which the improvement is carried on. The performance of the' work necessarily renders the street unsafe for night travel. This is a result which does not at all depend on the care or negligence of the laborers employed by the contractor. The danger arises from the very nature of the improvement, and if it can be averted only by special precautions, such as placing guards or lighting the street, the corporation which has authorized the work is plainly bound to take these precautions.” The true rule is very plainly stated by Clifford, J., in Water Company v. Ware(16 Wall., 566), where the learned judge says, that “where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but when the obstruction or defect which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do, the person who employs the contractor and authorizes him to do those acts, is equally liable to the injured party.” It may be also noted that in such case the duty of notice to the corporation of the existence of the obstruction or defect is removed, inasmuch as the thing itself contracted to be done creates the liability. The point now under discussion has been so fully considered by Judge Comstocjk and Judge Earl in the cases cited, that further comment here is quite unnecessary, if not actually presumptuous. The liability of the city for the negligence, charged in this case, is put beyond cavil by the decisions in the cases cited, and this too irrespective of the fact whether or not the contractor in and by his contract, stipulated to conduct the work with all needful care and prudence, and further to save the city harmless from all claims for injuries which should be caused thereby.

The appellant’s counsel refers us to Norton v. Wiswall (26 Barb., 618); Schular v. Hudson River Railroad Co. (38 id., 653), and Sweet v. Village of Gloversville (12 Hun, 302), as cases supporting his alleged ground of error. But in this he is under mistake, or if it be as he claims, those cases must yield to the superior authority of those referred to in the Conrt of Appeals.

Exceptions were taken in the progress of the trial to the admission of evidence; also to rulings of the judge in his refusal to charge the jury as requested in numerous particulars. But no point is made on this appeal by the defendant’s counsel to any of them, hence we give them no attention.

Judgment affirmed, with costs.

LearNed, P. J., and BoakdmaN, J., concurred.

So ordered.


author: LeaRNed, P. J.: Bookes, J .:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY DEVOE, Appellant, v. JOHN KELLY, Sheriff of Otsego County, Respondent.

      Habeas corpus —what errors in the sentence of a prisoner maybe reviewed, under it— when the application for it should be denied although the sentence is illegal — punishment for an assault in the third degree.

    The relator having been convicted by the Court of Sessions of Otsego county, of the offense of assault in the third degree, was sentenced to be imprisoned in a State prison for the term of one year. Upon an appeal from an order made by a county judge denying an application for a discharge of the relator upon the return to a writ of habeas corpus, addressed to the sheriff of the county, in whose custody the relator was :

      Held, that although under the provisions of 'the Penal Code the court had no power to sentence the relator to an imprisonment in a State prison, upon a conviction of an assault in the third degree, hut could only sentence him to he imprisoned in a penitentiary or county jail, yet the order denying the application should he affirmed, for the reason that the error of the court was not one which could be reviewed upon a habeas corpxis. (Per Learned, P. J.)
    For the further reason that although the sentence was absolutely void, yet the relator was properly in the custody of the sheriff as a convicted hut unsentenced prisoner. (Per Bocees, J.)
    Appeal from án order made by tbe county judge of Otsego county, dismissing an application made by tbe relator for a discharge by a writ of habeas corpus, and remanding him to tbe custody of tbe sheriff.

      James A. lynes, for tbe appellant.

      Clarence L. Barber, district attorney, for tbe respondent.
   LeaRNed, P. J.:

Tbe relator was indicted for assault in tbe second degree. He was convicted of assault in tbe third degree and sentenced to the State prison for one year. He obtained a writ of habeas corpus and urged bis discharge on the ground that the sentence should have been to a penitentiary or county jail. His discharge was refused and he appeals.

Two questions arise: 1st. If the sentence should have been as he claims, is he entitled to his discharge on habeas corpus. 2d. Was the sentence incorrect.

There is no doubt that the decision in People ex rel. Tweed v. Liscomb (60 N. Y., 570), and still more the language of one of the opinions, gave what seemed to be a new construction to the provisions of the Revised Statutes touching habeas corpus. Those provisions required the relator to be remanded when “ detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction,” and forbade the court or judge “ to inquire into the legality or justice of any mandate, judgment, decree or final order.” (Code of Civil Pro., §§ 2016, 2034.) These sections of the Code are substantially like the corresponding provisions of the Kevised Statutes and we therefore cite them.

Under this language it was thought that an error in the judgment must be remedied by appeal or writ of error, as the case might be, unless the judgment were such as the court pronouncing it could under no state of -facts whatever have power to pronounce. But thé Court of Oyer and Terminer in the Tweed case might, under some state of facts, have sentenced the prisoner to a term as long as that which was imposed. Whether they could do so upon the state of facts before them was a point — a mistake on which had been supposed to be error — to be corrected as other errors are.

That case, however, has been explained in People ex. rel. Woolf v. Jacobs (66 N. Y., 10), as holding only that where a court has imposed a sentence to the full limit allowed it has exhausted its authority; and that after the prisoner has served the term authorized by statute, he is entitled to discharge on habeas corpus. Under that construction the decision does not control this present ease. For this prisoner has served no term at all.

The case of Ex parte Lange (18 Wall., 163) is not important here, because there is generally no review of a criminal conviction by writ of error, or otherwise, in the United States Courts. No remedy exists, therefore, except by habeas corpus. And fu-rthermore, that writ is not restricted in the Supreme Court of the United States by any provisions such as those above cited from our Code and Bevised Statutes.

The Code of Criminal Procedure, by section 515, provides that the only mode of review is by appeal, and by section 543, that where an erroneous judgment has been entered the appellate court may correct the judgment. To this may be added the authority to remit the record to the court below, to pass such sentence as the appellate court may direct. (Chap. 226, Laws-1863, if that chapter is still in force, as to which it is not necessary to inquire.)

The prisoner, therefore, in this case, has abundant remedy. He may appeal and may have his sentence corrected, if it be erroneous.

Now, under this liberal provision, by which the prisoner is amply protected against an unjust sentence, we do not think that it was intended by the legislature that, when such an error as is here alleged has been committed, the prisoner should be set free on habeas corpus. Even in the Tweed case it was not pretended that Tweed could bave been released until the lapse of the term to which he was properly sentenced.

It may be said, by way of argument, suppose the Court of Sessions had sentenced the prisoner to be confined on a ship, or in some other-place, to which no prisoner can be sentenced, would not that sentence be absolutely void ? The answer, is that that would be a sentence which upon no facts whatever could the court impose. The present is a sentence which, upon proper facts, might be imposed by the court. We are of opinion, therefore, that the county judge was right in not treating the judgment as absolutely void, and in following the provisions of the Code of Civil Procedure, above cited, and remanding the prisoner. -

In- this view we have no power upon this proceeding to consider whether there was error in the judgment, because this proceeding is not an appeal therefrom.

But the question of error in the sentence has been argued at. length. And as we have formed an opinion thereon, we think it best to state it in order to save the trouble of further argument in some other proceeding.

The provisions of the Penal Code are somewhat conflicting. We do not think it necessary to go over them in this opinion and te explain at length how we reconcile them.

It is enough to say that, considering all the sections and the general subject of misdemeanors and felonies and the respective punishments, we are of opinion that imprisonment for assault in the third degree must be in a penitentiary or county jail, and cannot be in State prison.

The order should be affirmed.

Bookes, J .:

The return of the sheriff to the writ of habeas corpus shows that the relator was held by that officer under a conviction, on due trial,, in the Court of Sessions of Otsego county, of the crime of assault in the third degree, for which offense he had been sentenced by that court to imprisonment in the State prison for the term of one year. The claim made by the relator’s counsel, for his discharge from imprisonment, is put upon the ground that the crime of assault in the third degree is punishable as a misdemeanor by imprisonment in a penitentiary or county jail, or by fine or'both, under section 15 of the Penal' Code, not by imprisonment in a State prison ; hence, that the sentence in this case to imprisonment in a State prison was, and is, without authority of law and void. I am entirely of the opinion that the offense of assault in the third degree is but a misdemeanor and punishable only as such.

Whether a crime is a misdemeanor or a felony is determinable by the grade of punishment authorized by law to be inflicted. Now a misdemeanor is declared to be punishable by imprisonment in a penitentiary or county jail “ for not more than one year, or by a fine of not more than $500, or both” (Penal Code, § 15), andt section 222 (Id.) provides that assault in the third degree is punishable by imprisonment “ for not more than one year, or by a fine of not more than $500, or by both.” Thus the punishment for assault in the third degree is identical with that provided for the punishment of misdemeanors. It is therefore clear, as I think, that the relator could only be punished as for a misdemeanor; that is, by imprisonment in a penitentiary or county jail, or by fine, or both. The relator’s case comes very manifestly within the purview of ■section 15, above cited ; indeed it is exactly within its terms.

It is insisted by the district attorney that his case is covered by the provisions of section 70S of the Penal Code, which declares that when a person is convicted of a- crime for which the punishment inflicted by law is imprisonment “ for a term of one year” he may be sentenced to imprisonment in a State prison. But the relator’s case (assault in the third degree) calls for punishment “ for not more than one year” (sec. 222), not “for a term of one year.” In the former case the term is for not more than one year; that is, •one year or less; in the latter the term must be for one year, and may be for a longer period. The sentence of the relator should have been pronounced under section 15, to imprisonment in a penitentiary or county jail, or by fine, or both. The sentence to the State prison was without authority of law, and void. The Court of Sessions might as well have sentenced him to imprisonment in a county house, asylum or hospital as to imprisonment in the State prison, in so far as there is any warrant or authority for the sentence imposed. That the State prison is a place where persons convicted of crime may be by law imprisoned does not change the legal aspect of the case, inasmuch as even criminals cannot be imprisoned there save under lawful authority; that is, when convicted of a crime which by law authorizes their confinement in that place. I am of the opinion that the sentence in this case is simply void; that the case is the same as if no sentence had been pronounced.

But it by no means follows from this conclusion that the relator is not rightfully in the custody of the sheriff; that officer still holds him as a convicted criminal. He holds him on a valid charge and conviction of crime. This is shown by the record of conviction presented by the sheriff in his return to the writ. He holds him for legal sentence by the Court of Sessions on due conviction of assault in the third degree. So the relator should be remanded into the custody of the sheriff, or rather should be left in his custody, to the end that he may have legal judgment passed upon him and carried into effect. We should not remand him to the end that an illegal and void sentence may be made effectual in his case, but in order to have legal, valid judgment pronounced and executed against him. Nor can it be maintained that he should be discharged from custody and go free from punishment, as is claimed by his counsel, for the reason that the term of the court at which he was convicted has closed its session. In the first place it may be answered that he has caused the delay, and himself created the present condition of the case by his own action. He cannot now gainsay the right of the court to proceed on the conviction when it shall next convene. But again, suppose instead of this proceeding by habeas corpus an appeal had been taken to this court, the sentence would then have been reversed and he would have been required to appear in the Court of Sessions for rightful lawful sentence there, that is, he would have been remanded to the custody of the sheriff to the end that he might receive lawful sentence. . He could not in that case be discharged on the ground that the term of the court at which he was convicted had closed its session. So here his claim to a discharge on that ground cannot be allowed. The Court of Sessions has still jurisdiction of the case to pass sentence. As before suggested, it stands the same as if no sentence had been pronounced. The county judge was therefore right in refusing his discharge, even if it be true that the refusal was put on wrong grounds.

It is true, of course, tbat all that can be done on habeas corpus is either to discharge the prisoner or remand him to the officer having him in lawful custody, and that the court need go no further or say more than to discharge or remand. But the court must inquire into the cause of detention, and must, in case the prisoner be remanded, see that he is held under lawful authority, either for trial on a charge of crime or for sentence if duly convicted, or to have sentence executed when pronounced if not illegal. So in this case I have sought to determine the grounds of the relator’s detention, why he is held in the custody of the sheriff, and for what purpose he should remain in custody. He is found to" be, as I think, in lawful custody, being a convicted criminal awaiting lawful sentence therefor. He should therefore be remanded, not discharged.

The case would be quite different were the relator actually in the State prison, and held there for punishment only, under the illegal and void sentence here pronounced. In such case the decision in Ex parte Lange (18 Wall., 163) would require his absolute discharge, because held in custody under an illegal and void process. At the same time, it might be that the officer who pronounced the illegal judgment or sentence, would have judicial protection in an action against him for false imprisonment, as was held in Lange v. Benedict (73 N. Y., 12). But these questions we need not consider, inasmuch as we find the relator yet subject to the jurisdiction of the Court of Sessions — held in the county jail by the proper officer, as a convicted criminal subject to legal sentence therefor by that court.

It follows from these conclusions that the county judge was right in remanding the prisoner to the custody of the sheriff, and his order to that effect should be affirmed.

BoaedmaN, J., concurred in result.

Order affirmed.


author: BoCees, J.:

text:
    BENTLEY S. MORRILL, Respondent, v. THE C. T. SEGAR MANUFACTURING COMPANY, Appellant.

      JBMdeiux — authority to enter into a contract, given at a meeting of the directors of á company, may he proved by-parol — it need not appear in the minutes — when the principal is liable upon a contract signed, by the agent m his own name.

    Parol evidence is admissible to show that at a meeting oí the directors of a private corporation, its secretary was authorized to enter into a contract for the transportation of lumber needed by the company.
    The validity of a contract so made by the secretary is not affected by the failure of the directors to have the authority to make it entered in the minutes.
    By-laws of a corporation, requiring- contracts to be made in a particular way and form, do not prevent the making of a particular contract in such a form as the officers of the company may direct at a regular meeting.
    A written contract was entered into between the plaintiff and the defendant, which was signed in behalf of the defendant “O. T. Segar, secretary and .treasurer.”

      Held, that parol evidence was admissible to show that Segar had authority to act for the company, and that it was understood by both parties that the company was to be charged with the performance of the contract, and that such proof having been given the company was liable thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, and also from an order granting an extra allowance.

      W. T. Dunmore, for the appellant.

      J. B. Biley, for the respondent.
   BoCees, J.:

The plaintiff recovered for breach of contract. His claim may be stated in a few words, as follows: that the defendant held a contract with C. B. Turner for the sale and delivery, by the latter to the former, of 500,000 feet of lumber, to be delivered on boat, at the' dock at Plattsburgh, N. Y.; that thereupon the defendant contracted with the plaintiff to receive said lumber for the former, from time to time, on his boat, at the dock at Plattsburgh, and transport it to, and unload it on the dock at Utica, the defendant’s place of business, for two dollars per thousand feet; that the defendant refused performance, to plaintiff’s damage. The latter recovered $200. The defense urged on the trial was that no binding contract was entered into between the parties.

To establish his action, the plaintiff proved a contract in writing, made by and between himself and O. T. Segar, the latter signing it “ O. T. Segar, See'y c& Treas.," to the purport above stated; further proved, by parol, that C. T. Segar was the secretary and treasurer of the defendant’s company, and its general manager; that at a meeting of the officers of the company, shortly prior to the entering into the contract with the plaintiff, Mr. Segar was authorized to obtain lumber for the company, and thereupon proceeded to Plattsburgh, and the contract counted on was made.

It is objected that proof by parol of the meeting of the company and the authorization of Mr. Segar to obtain lumber for the company was inadmissible. It was held in The Trustees of St. Mary's Church v. Cagger (6 Barb., 577-580) that the acts of corporations may be proved in the same manner as the acts of individuals; that if there be no record evidence they may be proved by the testimony of witnesses, and even where no direct evidence of such acts' can be given, facts and circumstances may be proved from which acts may be inferred. This doctrine was reiterated in Moss v. Averell (10 N. Y., 454), with citation of many cases in its support. It must be remembered that the defendant is a private corporation, and that there is no law requiring it to keep a record of its meetings or proceedings. There was no proof given or offered showing that there was a record of the proceedings had at the meeting as to which parol evidence was given. The objection was made with the remark that the minutes of the meeting were in court and show no authority; in other words, that the proceedings of the meeting testified to by the witnesses were not entered in the minutes. The omission to make such entry would not render the proceedings null and void, nor preclude the party from showing what proceedings were had. This was held in effect in Moss v. Averell (supra). Such is the law now in this State, whatever may have been held at an early period, or whatever may now be the rule in other States.

Certain of the by-laws of the corporation were put in evidence, showing that its contracts, to be binding, should be made in a particular way and form; but these by-laws would not prevent, or render invalid, such special directions, authorizations or contracts as should be made by the company at its meetings. The officers, at a regular meeting, might bind the company in the matters of its business, by special action, in any way that should be deemed advisable.

The objection is taken that the contract on its face was not the contract of the defendant, but was the contract of C. T. Segar individually. It was signed “ C. T. Segar, Secretary and Treasurer.” The rule now is, that where the instrument raises on its face a question as to the personal liability of the party signing it, párol evidence is admissible to show the intention of the parties. (Bellinger v. Bentley, 1 Hun, 562; Hood v. Hallenbeck, 7 id., 362; Haight v. Sahler, 30 Barb., 218; Lee v. The M. E. C., 52 id., 116; Auburn C. Bank v. Leonard, 40 id., 136.) And when it is made to appear that the party signing in fact acted as agent for another, with authority from his principal to so act, and it was so understood by the parties, the principal will be charged. There was no error, as we think, in the rulings on questions of evidence calling for a reversal of the judgment.

We are of the opinion that the case was well disposed of at the circuit.

Judgment affirmed, with costs.

Learned, P. J., and BoARDMAN, J., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Final Accounting of STEPHEN S. WANDELL, as General Guardian of FLORENCE L. CRAIG, Formerly FLORENCE L. PEASE.

      Guardian —should not apply more than the income of the fund held for 7iis wan'd to the latter’s support— exceptions to the rule — when made and how established.

    The income of a fund held by a guardian for his ward is the primary fund from which to give support and maintenance to the latter, and the expenditures and disbursements to he made for such nurposes will generally be limited to the income from the fund.

      Where, however, the fund is small and more means are necessary to the due maintenance of the ward than can he derived from the income the capital may he brpken in upon, only, however, to the extent necessary to answer the just and .proper demands of the ward, having in view the amount of the fund and the situation, circumstances and condition of the ward in the particular case. The burden of showing an encroachment upon the principal to have been necessary rests upon the guardian on his accounting, either by the production of an order of the court giving the right to make the payments or by furnishing undoubted proof fully establishing the fact.
    In 1872 the appellant had a fund of $9,970.83, as guardian for a girl between twelve and thirteen years of age, occupying a position of high respectability and of considerable refinement. Upon the settlement of the guardian’s account it appeared that he had expended in the support, education and maintenance of his ward a sum exceeding by the amount of several thousand dollars the income of the fund. By the decree settling his accounts he was allowed the income of the fund up to 1876, and thereafter he was allowed to encroach upon the principal to an amount sufficient to make the annual expenditure $900, thereby encroaching upon the principal to the extent of $1,204.50.

      Held, that the decree was correct; that the guardian should not be allowed to charge the remainder of the .expenditures upon the fund.
    Appeal by Stephen S. Wandell from a decree of the surrogate of Albany county taking and stating the accounts of the said Wandell, as guardian of Florence L. Craig.

      Smith, Fursman <& Gowen, for the guardian, appellant.

      Alomo P. Strong, for Florence L. Craig, respondent.
   Bocees, J.:

This is an appeal, by Stephen S. Wandell from the decree of the surrogate of Albany county, rendered on final accounting by him as general guardian of Florence L. Craig, formerly Florence L. Pease.

The appellant rendered his account in due form, to which objections were interposed as to various items, both of debit and credit, whereupon a reference was ordered to a referee to take proofs relating thereto, and to state the account and report thereon, with the evidence taken by him. The referee proceeded with the reference, made his report in detail, stated the account with annual rests, wherein he made to the guardian, because of disbusements for his ward, some allowances (hereafter noted) over and above the income received by him from the fund in his hands, which excess went in reduction thereof, but refused further depletion of the fund by an allowance to the guardian of disbursements as was claimed in his account. „

The fund was $9,970.88, received by the guardian in 1872 and 1873; and the allowances to him made in the report and decree going in reduction thereof were as follows: Two hundred dollars for the time intervening between May 1, 1872, and January 1, 1873, and an increase over and above-the income for the years 1876, 1877, 1878 and 1879, to an extent making the aggregate annual allowances for expenditures and disbursements for those years $900 each.

To be specific as to those allowances over and above the income from the fund, they were as follows : For 1876, $226.25 ; for 1877, $242.08; for 1878, $259.02, and for 1879, $277.15.

For the years 1873, 1874 and 1875 the allowances to the guardian were limited to the actual income, $673.75, each year; and all disbursements claimed to have been made by him from and including December 23, 1879, to the end of the account, were uncontested by the ward, and were credited to the guardian as the same were stated and claimed in his account.

Besides the above allowances to him, over and above the income from the fund, aggregating $1,204.50; the guardian claimed in his account to be further credited and allowed for expenditures and disbursements for his ward as follows: For the period preceding January 1, 1873, $192.20; for 1873, $322.40; for 1874, $296.44; for 1875, $433.13; for 1876, $272.48 ; for 1877, $646.12; for 1878, $580.01, and for 1879, $322.91, which sums, if allowed to him, would further deplete the fund to the extent of their aggregate amount. His claim for these allowances was rejected by the referee’s report and surrogate’s decree; and such disallowance raises the question presented on this appeal.

It is the settled and sound doctrine ot the law that the income from a fund held by a guardian belonging to his ward is the primary fund from which to give support and maintenance to the latter; and the expenditures and disbursements so to be made will generally be limited to the income from the fund. But where the fund is small and more means are necessary to the due maintenance of the ward than can be derived from the income. the capital may be broken in npon, only, however, to the extent necessary to answer the just and proper demands of the ward, having in view the amount of the fund and the situation, circumstances and condition of the ward in the particular case. The burden of showing an encroachment upon the principal fund to be necessary and proper, rests upon the guardian on his accounting, either by the production of an order of the court giving the right, or by furnishing undoubted proof fully establishing the fact. That these souqd rules of law are applicable to the case in hand, is manifest on examination of the following authorities : 2 Story’s Eq. Jur., § 1355 ; Voessing v. Voessing (4 Redf., 360, and cases cited on page 365); Clark v. Clark (8 Paige, 152); Matter of Bostwick (4 Johns. Ch., 102); Kelaher v. McCahill (26 Hun, 148); In re Clements (17 W. Dig., 431). There are many other cases, both in this country and in England, to the same effect. The referee in his report recognized the doctrine of these cases and acted upon it, and in so doing exercised circumspection and sound judgment. As he states, he took into consideration the amount of income applicable to the use of the ward, her age and educational needs, the necessity of affording her proper care and attention, and her previous, then present and probable social standing. The fund was $9,970.83, after January 1, 1874, $9,625.17. While there was some other property belonging to the ward, it was of comparatively small value and wholly unproductive, nor was it probable that it could be made available in any way in the immediate future. The entire really available fund was as above stated. The annual income to be depended on from this fund, after the last mentioned date, was $673.75. This would seem to be a very respectable sum, in view of the small amount of the fund, for the support and maintenance of a young girl in good health, aged from fourteen to seventeen years, and this too even in view of the then present and previous social • position of the ward in this case. Her means were small and it was requisite that they should be employed with caution and prudence. There was not sufficient for 'the indulgence of extravagance in the least degree. The guardian was, therefore, especially bound to observe prudence and strict ‘economy in the management of her affairs. Less than this would be, in law, negligence on his part. The case shows that for the years prior to January, 1876, tbe income ($673.75), used circumspectly, would have met all the ward’s absolute necessities for education and maintenance, and would, too, have sustained her in substantially the same social position in all respects as that to which she had been accustomed, which, by the way, was one of high respectability and of considerable degree of refinement. It is said, and it is a sound observation, that the guardian, in supplying the needs of his ward, must consider not so much the style of life to which the latter may have been accustomed as the amount of the income at his disposal. If, to maintain such style, destitution would soon follow, the future welfare of the ward would suggest a change of surroundings to a simple and less expensive mode of life. The limitation of the allowance in this case to the amount of the income for the period specified in the referee’s report, sanctioned by the surrogate, was, as we think, entirely right.

For the four years following January 1, 1876, an allowance of $900 annually was made. This broke in somewhat upon the principal fund. The amount allowed in diminution of the fund during those years was $986.50, an average of $246.62 per year. It can be readily seen that for this period an increase of the allowance might well be urged as reasonable and right. There was a proper demand for some increase in order to secure to the ward greater educational advantages at her then age, and to obtain a better and more expensive wardrobe, to say nothing of many little expenses incident to the social 'life of a young lady of genteel surroundings. This demand was recognized by the referee in a liberal spirit in the allowance of $900 annually, holding in mind the comparative insignificance of the fund from which the amount was to be derived. An allowance beyond that sum, we think, would have been absolutely extravagant and unreasonable under the circumstances of this case. The rule to be applied in passing a guardian’s accounts is that of fidelity and ordinary diligence and prudence in the execution of his trust, and in the absence of fraud his acts will be liberally construed. But a liberality of construction which would lead to the speedy and entire depletion of his ward’s funds could not be permitted except in the most extreme case of imperative necessity.

The referee, in stating the guardian’s account in. this case, has, as we think, exercised in favor of the latter a liberal discretion to the full extent sanctioned by public policy and sound judgment.

It is to be regretted that the line of action pursued by the guardian has occasioned loss to him, but the just and sound principles of law, above stated as applicable to this case, must be maintained by the court in their integrity. That he acted in a spirit of kind feeling towards his ward, and in entire good faith, may induce commiseration, but cannot be allowed to override wholesome rules of action applicable to cases of confidence and trust.

It is urged that there is a mistake in stating the account in the deei-ee amounting to $282.61, which should be corrected. This is sought to be sustained by the statement in -the appellant’s printed points, that from January 1, 1880, to July 8, 1880, the guardian expended for the ward $1,204.71, and that after she attained her majority he paid her $3,067.14; in all, $4,271.19 (corrected, $4,271.85) But in this statement the counsel includes the following items (fob 67), which were not payments to the ward, to wit:

Five per cent on income ..'. $7 28

Commissions on principal received.. 199 70

Paid for preparing account. 78 00

$284 98

Thus it seems that the error is but $2.37, and that in favor of the appellant.

The respondent’s counsel has taken the point that the appeal in this case does not bring up any question of fact, but only questions of law, and cites us to ‘the Code (§§ 2745, 2568, 2576, 2586), and also to Rule 42 of this court, and also to 2 Revised Statutes (Edm. ed.), 634: But inasmuch as we think there should be an affirmance of the decree appealed from on the merits, we omit an examination of this question.

Surrogate’s decree affirmed, with costs.

Leabned, P. J., and BoardmaN, J., concurred.

Decree affirmed, with costs against appellant personally.


author: Booees, J.:

text:
    SARAH M. SIMMONS, Appellant, v. ZACHARIAH E. SIMMONS, Respondent.

      Judgment of divorce — petition to have it vacated because of fraud — when the petitioner shows no right to intervene — power of the court to impose upon him, the payment of costs — the court cannot modify an order, of its own motion, without notice to the parties interested.

    One'B. J. Henry presented to the court a petition, in his own behali, praying that a judgment of divorce heretofore entered in this action be vacated, upon the ground that it was collusively and fraudulently obtained, and was the result of a conspiracy entered into between the parties to the action and others to-effect a marriage between the plaintiff and a son of the said B. J. Henry, and thereby obtain control of the son’s property. Upon the return of the order to show cause granted on the petition, an order of reference was made which was resettled by an order made on May 12, 1883. While the reference so ordered was pending, the court on its motion, and without notice to any of the parties, made an order amending th’e order of May twelfth by retaining to the court power to make such order in regard to costs and compensation as it deemed proper, and providing that the order of reference and intervention be granted upon that condition. The petitioner refused thereafter to proceed before the referee.
    Upon an appeal from an order, made upon the coming in of the referee’s report, dismissing the petition and awarding to the plaintiff $350 as compensation for disbursements and counsel fees to be paid by the petitioner:

      Held, that the petition was properly dismissed, as the petitioner showed no right to intervene.
    That as the petitioner had submitted himself to the jurisdiction of the court by presenting the petition, he could not object to its imposing the payment of proper costs upon him, upon the ground that it had no jurisdiction to act in the matter.
    That the order made by the court, upon its own motion, modifying the former order so as to make it conditional upon the retention by the court of the' power of fixing the amount of the compensation to be awarded, being made without notice to, or the consent of, the petitioner was void.

      It seems that the court would have power to impose, as a condition of granting the order asked for by the petitioner, the obligation on the part of the petitioner to pay compensation to be awarded by the court, but such condition could not be imposed by the court upon its own motion and without notice to or the assent of the petitioner.
    That in so far as the order awarded the said compensation to the plaintiff, such compensation being neither the costs of a motion nor costs of a special proceeding but being a gross sum allowed “ as compensation for disbursements and counsel fees ” in the proceeding, it should be reversed.

      Appeal from an order denying the motion of one Evan J. Henry, for leave to intervene herein, and granting an allowance to the plaintiff to be paid by the said Evan. >

      W G. Beecher, for E. J. Henry, petitioner.

      C. M. Woodbury, for the plaintiff.

      William A. Fowler, for Z. E. Simmons.
   Booees, J.:

This is an appeal from an order of the Special Term, purporting to have been made in this case (entitled as above), denying the prayer of a petition presented by one Evan J. Henry, in his own behalf, asking to have the decree of divorce granted in such action vacated and declared void, and dismissing such petition, and further granting an allowance of $350 to the plaintiff (now Sarah EL Henry), as compensation for disbursements and counsel fees ” in the proceeding based on such petition. The ground of the application, as stated in the petition, so we are informed by counsel, the petition itself not being inserted in the appeal book, was that the decree of divorce was collusively and fraudulently obtained, in this, that it was the result of a conspiracy entered into between the parties to the action and' others named, to the end that a marriage might be effected between the plaintiff and James G. Henry, the son of the petitioner, and thus to obtain control of his, James G. Henry’s, property. Without referring to other proceedings directed by the Special Term, soon to be considered, we may pause here and state our conclusion based on the facts above given, that the dismissal of the petition was entirely correct, and we may add that a dismissal of the petition should have been granted, as we think, forthwith, on its presentation. The petitioner had no standing in court to make the application.v He showed no right to intervene in the action for divorce. He had no interest, legal or equitable, in the subject-matter of that suit. He was a mere naked intruder. Nor did the fact that he was the father of James G. Henry, who became the husband of the plaintiff following the decree of divorce, make his action other than simply intrusive. Not being a party to the action, and having no right to control it in any respect, and being without interest in the subject-matter of it, he had no standing in court to be heard thereon. (E. B. v. E. C. B., 28 Barb., 303; Matter of Beers, 5 Robt., 643.) The petition was properly dismissed, and on such dismissal it was competent for the court to impose costs against the petitioner, and this, eren if it be now held that the court was without jurisdiction of the subject-matter of the application. The petitioner had submitted himself to the jurisdiction of the court by bringing before it other parties to be heard on the matter of his complaint as to which he sought-redress, and the court assumed jurisdiction and undertook to adjudicate upon the subject of controversy. Under suen condition of the case, it does not lie with the petitioner to deny that the court had jurisdiction, in order to escape liability for the costs oi ms proceeding. (Cumberland C. & Iron Co. v. H. S. Coal Co., 39 Barb., 16; King v. Poole, 36 id., 242; Thiem v. Madden, 27 Hun, 371; People v. Sturtevant, 9 N. Y., 267.) But quaere, is not the petitioner estopped from denying jurisdiction in this case ? (The People v. F. Ass. of Philadelphia, 92 N. Y., 311; Vose v. Cockcroft, 44 id., 415.) In view of the decisions above referred to, and of our conclusions based thereon, we deem it unnecessary to pursue this inquiry.

The important question brought before the court on this appeal still remains to be examined, to wit, whether the Special Term had authority, on dismissing the application, to impose upon the petitioner the payment of $350 “ as compensation ” to the party called before the court by him, his “disbursements and counsel fees incurred in the proceeding.” It is suggested by the appellant that the proceeding was inaugurated and continued by the court of its own volition and for its own protection and vindication, on suggestion by the petitioner that a fraud upon it had been perpetrated and its authority employed for the attainment of an unlawful purpose, and our attention is called to the opinion of the Special Term, which opinion is made part of the case before us, where it is said that “the court owes to itself and to the State the duty of carefully investigating such charges as have been made,” and that “ any person may call the attention of the court to what it has done in a case of this character * * * and the court will then act to protect itself and the public.” Now, did it clearly and fully appear that the court had voluntarily and of its own volition entered or directed tbe entry of the order for investigation, even conceding its right and pbwer thus to proceed, instead of bringing the subject to the attention of the public officer having charge of criminal matters, 'the expenses of the proceeding could not be charged upon the party imparting the information, whatever might be the result of the inquiry so directed. But notwithstanding what was said by the Special Term in the opinion, it is made apparent that the proceeding was one instituted by the petitioner. He put the court in motion. He claimed the right in himself to have the decree of divorce vacated and annulled. The order to show cause (and indeed this was so as to each of the subsequent orders except the last one) was entitled “In the Matter of the Petition of Evan J.’Henry.” and such order and the subsequent proceedings purport to have been based upon his petition, and at his instance the persons named therein were required to show cause why the prayer of his petition should not be granted. Thus it is seen that he took the position of a moving party in the proceeding, and must be held to answer in the court to all the legal requirements and obligations of that position. He cannot escape liability for the costs and expenses of the proceedings, on the ground that it was not his proceeding, but was the independent voluntary action of the court for its own vindication and for the reason that such was not the fact.

This brings us to the consideration of the question of the imposition of costs. The action taken by the petitioner in court on his application for relief was either a special motion in the action of Simmons v. Simmons, in which case the allowance to be made to any party rested in the discretion of the court, and was limited by law to ten dollar’s, besides necessary disbursements for printing and referee’s fees, or it was in the nature of a special proceeding In the Matter of thé Petition of Evan J. Henry,” in which case the allowance for costs must, when granted, be at the rates allowed for similar services in an action. (See Code of Civil Pro., §§ 3251, 3240.) But the allowance in this case was not made under either of these sections. .It does not purport to be so made. According to the order the allowance of $350 was not for costs at all, but it was made in gross “ as compensation for disbursements and counsel fees ” in the proceeding. It is so stated in the. order itself. It seems very manifest that the allowance receivés no ground of support under tbe sections of the Code cited, nor indeed has it support under any other express provision of law giving allowances to parties for costs, disbursements or. counsel fees in an action or proceeding.

But the allowance is sought to he vindicated on' the ground that it was made a condition of the order granted to the petitioner on his application to the court for a favor, and that, having accepted the favor, he cannot be heard to complain of the condition. The legal proposition here put forward is a sound one. (Claflin v. Frenkel, 3 Civ. Pro. B., 109; Strong v. Jones, 25 Hun, 319; Bright v. Milwaukie Railroad Company, 1 Abb. N. C., 14; In the Matter of the Waverly Water-Works Company, 85 N. Y., 478.) Then, was the petitioner’s application granted upon the condition as claimed, that the court might, in the final order to be made in the proceeding, make the allowance here challenged as irregular and improper, and did he accept or take the benefit of an order imposing such condition ? This he denies. The question of fact must be determined by an inspection of the record, and the order or orders themselves must control as to the imposition of the alleged condition. The first order following the order to show cause was the order of reference granted April 26, 1883. This, order is without condition. It was resettled by the order of May 12,. 1883, which remained without condition on its resettlement. While the reference directed by those orders was pending, and on July 7, 1883, an order was made by the judge, as is stated in the papers and as is conceded by counsel, “ on his own motion,” whereby,, after reciting the omission of any condition in the order of reference, it was ordered as follows : “ That the order of reference and intervention in this proceeding, and dated May 12,1883, be and the same is hereby amended so that the court retains to itself power to make such order in regard to costs and compensation as it deems proper, and the order of reference and intervention is granted upon that condition.” This order, which injects the condition into the prior orders of reference, is claimed to be wholly without authority and void, and it may be here noted that it does not appear that the petitioner ever accepted or took any proceeding under the order of reference after its attempted amendment of July seventh. It seems that an appearance was had before the referee on the seventeenth of July, when he took the requisite oath as referee, and the counsel for the parties, other than for the petitioner, announced themselves ready to proceed with the reference, but the petitioner; by his counsel, declined to proceed and withdrew from the reference. No evidence was put in before the referee, and the latter made and signed his report to the effect that the petition should be dismissed. Thus it seems that no action was taken by the petitioner under the order as declared amended. Indeed he expressly refused to further proceed in the matter. It cannot, therefore, be held that he was bound by the condition imposed by the order of July seventh by reason of an acceptance of it as an amendment of the order of reference of May twelfth. Then had the order of July seventh any binding force? "Was it of any validity against the petitioner ? We are of the opinion that it was wholly without jurisdiction. It was made by the judge “ on his own motion,” and, in so far as can be discovered from the record, without the presence even of the parties, or at least of the party •now sought to he hound by it. Certainly there is nothing in the record showing that such party was called before the court by any legal proceeding for the purpose of amending the order of reference. The contrary does in fact appear, for the order was made hy the judge on his own motion,” that is, of his own volition, not on due ■application of any party; and this too appears from the recital in the order itself. So according to the record before us the judge ■on the seventh of July, on his own motion, without the presence of the parties, or notice to any party, made an order in the matter pending in the court changing and amending an order granted in such matter on the preceding May twelfth. A judge of the court has no authority, any more than has any third person, of his own motion, without having the parties before him m pursuance of some formal legal process or proceeding; or unless, being present, they ■consent that the subject may be then judicially considered, to make an order in a-pending suit or proceeding, or even to correct an error In an order theretofore made therein. The same formalities are requisite to confer jurisdiction upon a judge or court to amend or ■correct an order previously granted in a matter in litigation as would be necessary to obtain the order in the first instance. We are of the opinion therefore that the order of July seventh was void for want of jurisdiction in the court' to make it, and it follows that the order of reference of May twelfth stood and stands without condition as claimed by th'e respondent on this appeal. If right in this conclusion the allowance of $350 to the respondent in the order appealed from .was erroneous, and as to such allowance the order should be reversed.

The part of the order appealed from dismissing the petition of Evan J. Henry affirmed, and that part making an allowance of $350 to Sarah M. Henry against said petitioner and directing its payment by the latter reversed, without costs of appeal to either party.

LeaeNed, P. J., ahd BoaedmaN, J., concurred.

So much of the order as dismisses the petition affirmed; so much as grants an allowance reversed.


author: UooKes, J.:

text:
    NELLIE NEAR, as Administratrix, etc., of GEORGE F. NEAR, Deceased, Respondent, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Appellant.

      Railroad company — its duty to keep its tracks in good repair — its liability to one of its servants injured by reason of its failure so to do.

    The defendant’s road was carried across a marsli, partly upon embankments and partly upon trestle-work. The embankment upon the south side of the marsh was joined to the south end of the adjoining trestle-work by long timbers laid on and supported by old ties. The embankment and trestle-work adjoining this place settled from time to time, and as occasion required the defendant placed there a great quantity of old ties and other combustible materials. At the time of the accident, by which the plaintiff's intestate was killed, the marsh grass and this combustible material was very dry. On the day of the accident the marsh grass near the place in question was on fire, and subsequently the old ties and other materials took fire, but it was not shown whether they took fire from the burning grass or from coals dropped from the defendant’s- engines. The track over this burning material gave away while one of the defendant’s trains, upon which the plaintiff’s intestate was acting as a brakeman, was passing over it.
    In an action to recover the damages sustained by reason of his death:

      Held, that the question as to whether the accident was not occasioned by the defendant’s negligence was properly left to the jury, and that a verdict in favor of the plaintiff would not be disturbed.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Henry Smith, for the appellant.

      James W. Verbeelc, for the respondent.
   UooKes, J.:

The plaintiffs intestate was forward or head brakeman on the defendant’s train, running between Green Island and Port Henry, and was killed while on duty because of the breaking down of the track, weakened and rendered unsafe by fire at a place called Nigger Marsh” in the county of Washington-. The plaintiff had a verdict of $5,000 damages.

The track, at the place where the accident causing .the injury complained of occurred, crossed the marsh upon embankments on the north and south with trestle-work through the center. The embankment on the south side' of the marsh was carried along for some distance until connection was made with the trestle-work. At the place where the south end of the trestle-work connected with the north end of the embankment, there were long timbers laid on and supported by old ties, one end fastened to the bent of the trestle and the other resting on the bank. The southmost bent of the trestle settled from time to time, as did also the end of the embankment, which extended for about 150 feet, and to keep up this embankment immediately south of the trestle, the defendant from time to time, as occasion required, piled, in a great quantity of old ties, and left there other combustible material. This place where the embankment and the trestle connected was called a sink hole, and the grade was sought to be maintained there by the means above described. The marsh grass in the vicinity at the time of the accident was quite dry, as was also the combustible material employed to keep up the grade and to give support to the rails. On the day of the accident this marsh grass near by was on fire, and in the afternoon and early evening of that day the old ties and combustible material which gave support to the timbers under the rails were also on fire. It does not appear however (not with certainty, at least) that the latter fire had its origin in the burning marsh grass. No one was stationed at or near the trestle to guard it against fire or otherwise. The train came along on its way from Fort Henry south, reached this point about or near nine p. m. ; the support of the rails at the sink hole had then become so weakened by the fire that the track gave way and the engine, on which the deceased was riding, was wrecked and the deceased killed.

The plaintiff claims, and such was the basis of recovery in theory, that the accident and consequent injury to the intestate were occasioned by the defendant’s negligence in omitting to make the road-bed reasonably safe for use by their employes, and to maintain it in such reasonably safe condition.

The rule of liability here suggested is now so well settled and has become so familiar that there need be no citations of authority in its support. The question then resolves itself into one of fact on the proof submitted, and in examining this case it must be assumed that the burning of the combustible material of which the embankment wa's composed in part, rather that its insufficiency if left intact, was the proximate cause of injury. The defendants had the right to use' combustible material in constructing the embankment as they had the right to use wood in constructing a trestle, but the use of such material would require increased care and diligence in maintaining the road-bed and track in a safe condition for use. Then, was the company directly responsible for the happening of the fire, or in not extinguishing it in time to prevent the injury? It is here Sufficient, that there was evidence before the jury tending to establish the affirmative of this inquiry. On this question the following facts had bearing and significance: that the embankment was, in part, composed of combustible materials; those materials, instead of being of earth, as is customary in constructing railroad embankments, were of wood, as it turned out, to a dangerous extent; the materials were liable to be set on fire by the falling of burning cinders from passing trains, and in this case it is probable, if it be not directly and absolutely proven, that the fire had its origin in this way. Thus great vigilance was imposed as a duty upon the company to prevent the occurrence of such an accident. Was such'duty observed? The facts and circumstances- bearing on this inquiry were laid before the jury by the proof. Those were: the favorable opportunity for a fire because of tbe uncovered combustible materials under tbe track ; tbe exposure from tbe frequently passing engines; tbe absence of all precaution; tbe presence or absence of means to extinguish a fire, if kindled ; the time intervening between the commencement of tbe fire and the happening of tbe accident, with the rules or habits of watchfulness imposed by the company upon its servants, and whether these were sufficient'to answer the requirements of due care and prudence in the case. These facts and circumstances had bearing upon the question of negligence charged upon the company; hence the case was for the jury on that subject. Nor is it an answer here to say that the company had employed competent servants to look after the matter of complaint. On- this subject the case of Davis v. Central Vermont Railroad Company (55 Vermont, 84), a case involving the principles of law here invoked, is. instructive, and attention is called to the elaborate opinion of the court by Ross, J. Therq a recovery was sustained for an injury to the defendant’s locomotive fireman, because, as was alleged, of negligence and want of due care in furnishing and maintaining a suitable and sufficient road-way for its trains; and it was held that the negligence of the company’s -bridge-builder in constructing, and of the road-master in repairing the culvert, was attributable to the company, although they were ■ordinarily skillful and careful men in their several employments. (See, also, Vosburg v. The L. S. & M. S. R. R. Co., 18 W. Dig., 300; Laning v. N. Y. C. R. R. Co., 49 N. Y., 521; Fuller v. Jewett, 80 id., 46; Kain v. Smith, Id., 458.) It should also be noted that the company’s servants ’ were directed in their line of action in this ease as regards care and watchfulness, or were habituated to settled practice of long standing, presumably known to the company itself, amounting to instructions from the company in that regard. It may be added that if the servants of the company repeatedly and habitually omitted to exercise due watchfulness by patroling the road, or. were guilty of other repeated and habitual negligences of duty, the question of their competency would become a subject of examination. The doctrine of the law applicable to this case is well stated in Toledo P. & W. R. Co. v. Conroy (68 Ill., 560) as follows: “ The duty owing by a railroad company to the public as well as to those in their employment is, that their road and bridges and other appurtenances shall be constructed of the best material, having in view the business to be done upon it. In their construction they should equal those of the best roads doing an equal amount of business, and the utmost care and vigilance should be bestowed in keeping them in a safe condition. The law will not allow them to be out of repair an hour longer than the highest degree of diligence requires. And further it is their duty to keep a sufficient force at command, and of capacity sufficient to discover defects and apply the remedy. Neglecting to keep it in the best condition, if injury or loss occurs thereby, the companies will be liable, and they ought to be so liable. From this responsibility they cannot be relieved, except by showing that the’defect was one which could not be discovered or remedied by any reasonable skill or foresight.” Under this statement of the' law the case was eminently one for the jury on the proof as to the question of the defendant’s negligence.

It is urged that the negligence .of the engineer, the intestate’s co-servant, in running the train, caused or contributed to the injury. We cannot so adjudge as matter of law. Whether or not such was the cases was for the jury to determine. There was a sharp curve in the road near the place of the accident, and the opportunity for observation was obstructed until a near point to it was reached. It was also for a little time, and until the train had approached near to the danger, subject of doubt by the engineer whether the fire observed by him was under the track. The train was running on a downgrade. We cannot say as matter of law that the'engineer should be charged with negligence for not stopping the train before the place of the accident was reached.

It is also insisted that the plaintiff’s intestate must be charged with contributory negligence — that he was riding on the engine instead'of being at his customary place at the head of the line of cars next following. It seems, however, that it was not very unusual for the forward or head brákeman to ride on the engine. Besides the cars immediately following the engine wer„e precipitated into the sink hole as well, or, as the witnesses expressed it, went down the trestle. Would the deceased have escaped injury had he been on the front car behind the engine instead of on the latter ? It was also for the jury to pass upon the question of contributory negligence presented by the evidence.

It is further insisted that the damages awarded by the jury are excessive. The verdict was for $5,000, the full amount allowed by law to be given in such cases. This subject is one of perplexity to the court. It is impossible to determine precisely what would be right in very many cases if not in all. It is, however, left by law with the jury, after giving proof of the circumstances surrounding the deceased (in a case where death ensues), his pecuniary condition, the number and situation of his family or immediate relatives if he have no family, his ability to acquire property, etc. It is not an easy matter to determine what the actual pecuniary loss to the widow and next of kin of a deceased may be. So it is not easy to determine whether the damages awarded in a given case are or are not excessive. Cases of death or of great bodily injury occasioned by negligence, differ widely in the means — the data — from which to estimate the damages, from those cases where a party is wrongfully ejected from a train. In the latter class of cases the loss and damages may be approximated with tolerable certainty. In this case we do not see our way clear to reverse the judgment because of the awarding of excessive damages.

We are of the opinion that the judgment must be affirmed, with costs.

LkaRned, P. J., and Boardman, J., concurred.

Judgment and order affirmed, with costs.