author: Brady, J.:

text:
    JAMES B. JERMAIN, Respondent, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD COMPANY, Appellant. WILLIAM F. DRAKE and Others, Respondents, v. THE SAME, Appellant. ALEXANDER MONROE, Respondent, v. THE SAME, Appellant. CHARLES H. RABERG, Jr., Executor, Respondent, v. THE SAME, Appellant.

      Interest — runs at the rate fixed by law when allowed as damages — 1879, chap. 538 — Costs — effect of an affirmance by the Court of Appeals, with costs, of an order granting a new trial — disbursements — only the expenses actually incurred can be taxed.

    In an action, brought to recover arreai's of dividends on guaranteed stock issued by the defendant, a judgment dismissing the complaint was reversed at the General Term and a new trial ordered. The defendant having given the usual stipulation and appealed to the Court of Appeals, the order was there affirmed and judgment absolute ordered against the defendant, with costs. Thereafter •and in June, 1883, upon the plaintiff’s motion an extra allowance was granted by an order of the Special Term and a judgment was entered in his favor for the amount of the dividends, with interest thereon at the rate of seven per cent per annum from the time they were respectively payable to the time of the entering of the judgment, together with the costs of the action.

      Meld, that as the plaintiff recovered interest upon the amounts of the dividends as damages and not upon any contract, the rate per cent shsuld have been fixed at six per cent from and after January 1, 1880.

      Sanders v. Lalce Shore and Michigan Southern Baik’oad Company (MS. of Ct. of App.) followed.
    'That under the remittitur of the Court of Appeals the plaintiff was entitled not only to the costs in the Court of Appeals, but also to the costs of the trial in the court below.
    That the court had power to grant his motion for an extra allowance, and that the General Term could not, under the facts of this case, interfere with the discretion exercised by it.
    It appeared that certain documents were used upon the trial of each of several actions brought by different plaintiffs against the same defendant to recover the said arrears of dividends, and that the cost of procuring them — the sum of 1165 — Was taxed as a disbursement in each case.

      Meld, that in the absence of any proof to show that this sum was paid for the documents in each case, the amount should have been taxed hut once.

      Appeals from judgments in favor of the plaintiffs, entered in the above entitled actions, and from orders awarding to them an extra allowance and granting them leave to issue executions upon the judgments.
    These actions 'were brought to recover arrears of dividends on guaranteed ten per cent stock' issued by the defendant. They were brought to trial at Special Term, and tried with the cases of Board-man, Prouty and others, against the same defendant, wherein those plaintiffs recovered judgments, which have since been affirmed at ■General Term and in the Court of Appeals. (See the Boardman case, 84 N. Y., 157, and the Prouty case, 85 id., 272.) The cases at bar were precisely like the Boardman case, save that the date of the stock ■certificates of the several parties here plaintiffs, was subsequent to August 1, 1864, when the company declared and paid dividends on their common stock, while the certificates of Boardman and others bore ■date prior to such payment of dividends on the common stock. On that ground Judge Barrett dismissed the complaints of the present plaintiffs. On appeals by the plaintiffs, those judgments were reversed at the General Term in January, 1882, and new. trials ordered, with costs to abide the event. (26 Iiun, 474, 475.) From such orders the defendant appealed to the Court of Appeals, stipulating that if the orders were affirmed, judgments absolute should be rendered in favor of the respondents. Those appeals were decided by the Court of Appeals, March 6, 1883, and the orders of the General Term were affirmed, and judgments absolute ordered against the defendant, “ with costs.” (91 N. Y., 483, 664.) The judgments •of the Court of Appeals were made the judgments of this court by •orders of' March 10, 1883. Subsequently an order was made at a Special Term, granting an extra allowance to the plaintiffs.

      Edrward S. Bapallo, for the appellant.

      luden Birdseye, for the respondent.
   Brady, J.:

There are several appeals in this case. The points involved in each have been presented in one brief on the part of the respondents, and by separate briefs on behalf of the appellant. The questions involved will be disposed of without reference to the numerical order of the appeals.

The defendant complains that interest at the rate of seven per cent has been allowed upon the recovery in each of these cases down to the time that the judgment was entered. The absolute judgment was perfected in the present year. Also that the costs of the Special Term were given against it, and that an extra allowance was granted; and, further, that an application for liberty to-file objections nunc pro tunc to some of the items in the bill of costs, .taxed against it during the absence of its counsel, was denied; and again, that an execution was allowed to issue embracing these objectionable items as a part of the judgment. Some criticism has been made upon the manner in which one of the appeals was taken, the order appealed from having been entered by the defendant’s counsel without the consent or knowledge of the counsel for the plaintiff; but inasmuch as the whole case is before the court, it is regarded as unnecessary to take any notice of this fact, as suggested, assuming it to be true. If the items which form the subject of that application appear and are objectionable, it will be the duty of the court ex débito justitics to consider and reject them, if necessary.

The plaintiff’s recovery was founded upon a contract which was silent as to interest and made long prior to the act of the legislature, which took effect upon the 1st of J anuary, 1880, reducing the rate of interest from seven to six per cent. It is declared in that act that nothing therein contained shall be so construed as in any way to affect any contract or obligation made prior to its passage. The right of the plaintiffs to recover interest under such circumstances has been denied, however, by the Court of Appeals in the recent case of Sanders v. Lake Shore and Michigan Southern Railroad Company , manuscript opinion, by Earl, J. That case involved the precise question. The decision rests upon the principle that as interest was not secured by virtue of any provision in the contract to pay it, it could be recovered simply as damages,, inasmuch as the defendant was in default in the discharge of its obligations to the plaintiff and wrongfully withheld money due him. And the court said that in such a case, where interest is allowed as damages, it is well settled that the legal rate must govern. The appeal, therefore, so far as it relates to the allowance of interest at seven per cent must be sustained.

The remittitur from the Court of Appeals in these cases granted judgment absolute upon the stipulation given by the defendant, with costs, and the question is whether the words “ with costs ” give to the defendant the costs of. the trial in the court below. It is supposed that the right to costs arising from the form of the remittitur has been disposed of against the plaintiff by the case of Savage v. Allen (2 Sup. Ct. [T. & C.], 474), but this view seems to be erroneous. It appears in that case that in the action, which was an equitable one, the costs of the two appeals had been taxed, and the Special Term, on motion, granted an additional allowance; The appeal in the case to this court was from the order granting such allowance only and the court held that the case was one in which an allowance could not be given, on the ground that the defendant did not recover general costs but costs of the appeal only.

It will be perceived from this statement that the effect of the words in the remittitur “with costs,” was not considered, the appeal relating entirely to the order granting the extra allowance. The precise questions, however, of the right to costs and the power to make allowances were considered in the cases of Burdett v. Lowe (22 Hun, 588) and that of Parrott v. Sawyer (26 Hun, 466). In the latter case, in which judgment had been ordered absolute in the Court of Appeals, with costs, this court held that the Special Term had the power upon the remitttiur to entertain a motion made by the defendants for an additional allowance. The cases of Eldridge v. Strenz (39 Supr. Ct., 295), and McGregor v. Buell (1 Keyes, 153), were considered in the opinion of the court and disregarded as controlling upon the question.

In the case of Burdett v. Lowe, the court held that upon such a remittitur as suggested, the judgment -embraced all the costs in the action, and that the sureties on the appeal to the Court of Appeals; were liable for them. On the appeal to the Court of Appeals (see 85 N. Y., 241), this judgment was reversed as to the sureties, upon the ground that they were not liable for the costs as sureties but the right to the costs was not disputed. In the case of Von Keller v. Schulting (45 How. Pr., 139), this court, at General Term, held that where judgment was rendered absolute for the defendant, with costs, in the Court of Appeals, the defendant was entitled to costs from the commencement of the action, notwithstanding that costs were in the discretion of the court and none were allowed to the plaintiff on recovering judgment. These adjudications dispose of the appeal which relates to costs and allowances.

The appeal from the order denying the application for leave to file with the clerk nuno pro tuno certain objections to items in the bills of cost which were taxed by the plaintiff, may be disposed of without reference to the technicalities affecting it, as it should be, as matter of justice. It appears that certain documents were used in all the cases, the expense of which, to the plaintiff’s attorney, was one hundred and sixty-five dollars, and this sum is taxed in .each case. It would seem to be improperly taxed as a disbursement in each case. In the absence of proof that one hundred and sixty-five dollars was paid in each case for documents, it would appear to be unjust to allow it as a disbursement in each case. There does not seem to be any pretense that it was paid more than once in all the cases. To this extent we think the appeal relating to that subject should succeed.

The appeal from the order granting leave to issue the execution should therefore be modified so as to conform to the views herein expressed as to the interest and the item as to documentary evidence.

The allowance made in each one of these cases would seem to be excessive, from the account of the proceedings at the trial, but we do not think that upon the facts before us we would be justified in declaring that the discretion exercised by the justice in the court below in making the allowance, was abused. No costs allowed to either party on these appeals, and orders to be settled on two days’ notice of submission thereof, and the amendments, if any, to Justice Brady.

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

Order modified as directed in- opinion; order to be settled by Brady, J.

       See Mem., 94 N. T.


source: Caselaw Access Project

author: Bradt, P. J. :

license: Public Domain

text:
    THE DAVENPORT GLUCOSE MANUFACTURING COMPANY, Respondent, v. ISAAC W. TAUSSIG and Others, Appellants.

      Practice — striking out allegations from the complaint — action to recover a chattel wrongfully detained — when the fads showing the detention to be wrongful should be stated in the complaint— Code of Oivil Procedwe, sec. 1721.
    This action was brought against the defendants Taussig & Hammerschlag and their general assignee, Barricklo, to recover certain goods, or their value, which had been obtained from the plaintiff. The complaint alleged the sale of the goods by the plaintiff to the defendants Taussig & Hammerschlag; that the latter were at the time hopelessly insolvent and made the purchase without intending to pay for the goods, but with the intention of failing and depriving the plaintiff of its goods without paying therefor; that the plaintiff believing that the said defendants were solvent, and having no knowledge of their insolvency or of their intention to fail, shipped the goods and drew drafts for the price thereof, payable one day after sight, which were not paid. The •complaint then alleged that at or about the time of obtaining the said goods, and within a few months prior thereto, the said defendants mortgaged, transferred, removed, concealed and disposed of a part of their property with intent tó defiaud their creditors, and with the intent to obtain from the plaintiff and others goods, wares and merchandise and not pay for the same; that thereafter they failed and made a pretended general assignment to the defendant Barricklo, and thereby attempted to unlawfully transfer the goods belonging to the plaintiff to Barricklo; that at the time of the purchase of the goods the debts and liabilities of the purchasers amounted to $137,192.41, or thereabouts, and their contingent liabilities to the further sum of $93,931.16, while the actual value of their assets was $31,821.40, or thereabouts; that the plaintiff upon learning of the insolvency and fraud of the defendants disaffirmed the sale.
    The defendants moved to strike out the allegations of the complaint, setting forth the fraudulent representations made by the defendants to induce sales by sellers other than the plaintiff, and those stating the amounts of the defendants’ debts and liabilities, and the disaffirmance of the sale.

      Held, that the motion was properly denied.
    That as section 1721 of the Code of Civil Procedure required the complaint, in actions to recover a chattel founded upon its wrongful detention, to set forth the facts showing the detention to be wrongful, the plaintiff should not be required to incur any danger from an omission to state the facts sought to be stricken out.

      Qumre, as to whether the said section (1721) related to any cases other than those involving the detention of a chattel, eo nomine, when the possession theremf has been improperly usurped by the defendant and not procured by a sale fraudulently induced.

      Appeal from an order made at a Special Term denying a motion to strike out certain parts of the complaint.

      Henry Sehmitt, for the appellants.

      Aaron Pennington Whitehead and Richard Stacpoole, for the respondent.
   Bradt, P. J. :

This is an action for the claim and delivery of property. Its design is to recover goods, or their value, which were obtained by the defendants Taussig & Hammerschlag, to whom they were sold, by fraud, the charges being that they were insolvent, at the time of the purchase and made it with the intention preconceived of not paying for them.

The Code (§ 1721) provides that where the taking of the chattel is not complained of, but the action» is founded upon its wrongful detention, the complaint must set forth the facts showing that the detention was wrongful. It may be questionable whether this provision relates to any other cases than those involving the detention of a chattel eo nomine and not procured by sale fraudulently induced, but to the possession of a chattel belonging to another improperly usurped. But assuming it applies to an action such as the present, the question is whether the allegations objected to are improperly inserted in the complaint.

The complaint alleges the sale of certain property mentioned. It then alleges that at the time of the purchase the defendants were hopelessly insolvent and concealed such insolvency from the plaintiffs, and made the purchase without intending to pay for the goods, purposing on the contrary to fail and stop business, knowing that the plaintiffs would be deprived of their goods without receiving any payment therefor; and further that the plaintiffs, believing that Taussig & Hammerschlag were solvent and responsible, and having no knowledge or information that they were not so or that they were about to fail or stop business, or that they did not intend to pay for the goods shipped them, and that they were received by Taussig & Hammerschlag, who took them fraudulently and without intending to pay for them ; and further that they drew drafts upon Taussig & Hammerschlag, payable one day after sight, which were not paid. It will be perceived that, except as to the sale and delivery of the goods, the allegations thus far are of conclusions, namely, that the defendants made the purchase when they were hopelessly insolvent, concealing such insolvency with a preconceived design not to pay for them, but to obtain and use them and fail.

The plaintiffs then proceed .to set out facts which justify the conclusion thus stated, namely, that at or about the time of obtaining the goods from them and within a few months prior thereto, the defendant Taussig and Hammerschlag mortgaged, transferred, removed, concealed and disposed of a part of their property with intent to defraud their creditors, and with intent to obtain from the plaintiffs and others, goods, wares and merchandise, and not pay for the same; and that on the 17th of August, 1883, they failed in business and declared their insolvency; and that they thereupon made a pretended assignment of their property to the defendant Barricklo, for the alleged benefit of their creditors, with preferences, and that by that assignment they attempted to unlawfully transfer the goods belonging to the plaintiffs, or some part thereof, to the defendant Barricklo, and, further, that at the time of making the contract of sale, their direct debts and liabilities amounted to $137,192.11, or thereabouts, and their contingent liabilities to the further sum of $93,931.16, making the total of their liabilities $231,122.57, or thereabouts ; while the actual value of their assets was $19,821.10, or thereabouts, less $18,000' pledged as collateral, leaving the actual value of their assets only $31,821.10, or thereabouts. And they further allege that having learned of the insolvency of these defendants, and of their fraud in the purchase, they disaffirmed the sale and allege, as they are advised, that no title ever passed to these defendants, or from them to Barricklo, and that a certain number of barrels of glucose were still their property.

The defendants seek to strike out the allegation of the debts and liabilities in figures which has just been narrated, and also the paragraph alleging the disaffirmance of the sale, and further a statement of fraudulent representations made by the defendants Taussig & Hammerschlag to other sellers and by which sales were accomplished.

It is very clear that in respect to the allegation as to the indebtedness mentioned and the allegation as to the disaffirmance of the sale, the order of the court below is correct. These elements of the pleading should not be disturbed. They are essential facts bearing upon the allegation of insolvency, its fraudulent suppression, and the design in making the purchase under the circumstances disclosed.

After due consideration of the other allegations objected to, namely, of fraudulent representations made to others, by which property was obtained, the same conclusion has been arrived at-The propriety of these averments seems to be unquestionable. The goods obtained from the plaintiffs were not procured by any representations, but by the suppression of the truth -with a preconceived fraudulent design. The courts have held that proof of similar representations to those alleged by the plaintiffs may be given in evidence, for the purpose of establishing the general fraudulent design. (Hall v. Naylor, 18 N. Y., 588; Hennequin v. Naylor, 24 id., 139; Hathorne v. Hodges, 28 id., 486 ; Van Kleek v. Le Roy, 4 Abb. [N. S.], 431.) And these representations are facts upon which the plaintiffs rely to establish the existence of the fraudulent intent and without which their case might be insufficient. They are not irrelevant, they are not redundant and they are not frivolous. They are as suggested, essential facts, in conjunction with others, leading to the truth of the conclusion stated, namely, that the purchase was made from the plaintiffs fraudulently, and with a preconceived design not to pay for the goods obtained. The defendants 'cannot be injured by the statement of them; on the contrary, it is quite clear that being thus advised of the different elements composing the plaintiffs’ charge they would be better prepared to meet it.

The plaintiffs should not be required to incur any danger from the omission of these facts in contemplation of the provisions of section 1721 of the Code of Civil Procedure, to which reference has already been made, or from any other consideration. It is true that a statement which is merely evidence, and not of the facts 'constituting the claim, should be stricken out. But this does not apply to an action in which all the facts to be stated and the evidence of them are synonymous.

The objection to the allegations involving the fraud set out in the complaint cannot be entertained upon the proposition that answering them would subject the party against whom they afe. made to a criminal prosecution, for the reason that by section 323 of the Code the verification may be omitted in a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading, and therefore as to these allegations the verification in the defendants’ answer may be omitted.

This is one of the consequences resulting from the plaintiffs adopting the form of pleading presented in this case. It may be that if the allegations objected to in reference to the fraud were omitted, the defendants would be estopped from taking an objection upon the trial to their omission, in consequence- of their successful effort to have them stricken out, but inasmuch as the law-contemplates the insertion of them, and they have been properly inserted, the objections to them must necessarily fail.

It is thought, therefore, that the order made in the court below denying the motion to strike out the matter considered was properly made, cannot be interfered with, and should be affirmed.

Ordered accordingly, with ten dollars costs and the disbursements of the appeal.

Daniels, J., concurred.

Present — Brady, P. J., and Daniels, J.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE MUTUAL UNION TELEGRAPH COMPANY, Appellants, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK, Respondents.

      Taxation — review of an assessment unden' chapter 269 of 1880 — assessment of the capital stock of a telegraph company — duty of the company to make a proper statement as to the actual costs of its works — 1853, chap. 471, sec. 3.
    The relator, a telegraph company incorporated under chapter 471 of 1853, was assessed by the tax commissioners of the city of New York upon its capital stock the sum of $600,000, which was the amount of its paid-up capital stock. Between the opening of the tax books on the second Monday of January, 1881, and the closing thereof on the thirtieth of April of that year, the relator failed to make a proper return, although notified by the commissioners so to do. On June 6, 1881, a statement, verified by the relator’s secretary, was left at the office of the commissioners, which stated that the capital stock of the relator paid in was $600,000; that the stock had no market value, and that the personal property of the relator in the city did not exceed the value of $300.
    Upon an application for a review of the assessment made under chapter 269 of 1880:

      B.eld, that the statement presented to the tax commissioners in June was filed too late.
    That as the company had failed to make “ a true report of the cost to such company of their works within the State,” as required by the third section of the act under which it was formed, the commissioners had the right to assess its capital stock according to the best information they could procure.
    That the decision of the tax commissioners should be affirmed.
    Appeal from an order made at a Special Term, confirming tbe decision of tbe tax commissioners.

      Peabody, BaTcer dc Peabody, for tbe appellants.

      George P. Andrews, for tbe respondents.
   Beady, J.:

Tbe relator is a telegraph company incorporated under chapter 471 of tbe Laws of 1853. In tbe year 1881 it was assessed upon $600,000 capital, which sum was paid up at thé time tbe assessment was imposed. In July, 1881, an application was made for a writ of certiorari, under Laws of 1880, chapter 269, to review the action of-the tax commissioners in making the assessment. Upon the hearing on the writ and return, which seems to have taken place in December, 1881, a reference'was ordered for the purpose of taking such testimony as might be offered by the respective parties to the proceeding. The testimony tended, as suggested by the justice presiding in the court below in his opinion, strongly to show that while the tax books were open for correction, between the second Monday of January, 1881, and the thirtieth of April following, the period prescribed by the act of 1859, chapter 302, notices were given in writing and verbally to the -officers of the company calling upon them to make a proper return to the tax commissioners, although it may be here observed there is no provision of the statute requiring such notice to be given. No application to correct the tax was made during the period stated, and the assessment of the sum named was in consequence permitted to remain upon the books, which were closed, as required by the provisions of the act of 1859 (supra) on the first of May in order, as also required by law, that the tax commissioners might prepare the assessment-rolls. These rolls were in due time prepared and the sum named, as it appeared upon the books of the annual record, was copied from the rolls and sent to the board of aldermen, who imposed .a tax upon the relators. Subsequently, on the 6th of June, 1881, a statement signed by the secretary of the company and sworn to before a notary public, was left at the office of the tax commissioners, in which it was stated that the capital stock paid in was $600,000; that the stock had no market value, and that the personal property of the relator in the city did not exceed the value of $300.

The learned judge in the court below held that the application or statement filed with the tax commissioners came too late, and that as the company had failed to make the statement required by law in time, he agreed with the counsel for the corporation that the deputy-tax commissioners had the right to assess the capital stock of the relator according to the best information they could procure, citing the cases of the People ex rel. The Utica and Black River Railroad v. Shields (6 Hun, 556); and further holding that the assessment was not illegal, erroneous or unequal, for the reason that if it was higher than it should have been, the over valuation arose from the fault of the relator in not complying with the provisions of chapter 471 of the Laws of 1853, under which it was organized, and which by its third section provides as follows :

Every such company owning or using a line of electric telegraph, partly within and partly beyond the limits of this State, shall render to the proper officer a true report of the cost to such company of their works within the State; and the stock of such company -in amount equal to such cost, or the dividends thereof, shall be subject to taxation in the same manner and at the same rate as the stocks or dividends of other companies incorporated by the laws of this State are subjected.”

It is not disputed that the relator was subject to taxation in the city of New York, and indeed such a contest could not be well maintained. The Revised Statutes (see vol. 2 [7th ed.], 1036) provide that all moneyed or stock corporations deriving an income or profit from their capital, or otherwise, shall be liable to taxation on their capital in the manner prescribed, and require that the pi-esident, cashier, secretary, treasurer, or other proper officer of such company shall, on or before the first day of July in each year, make and deliver to the assessors, or one of them, of the town or ward in which such company is liable to be taxed, according to the provisions of the sixth section of-the second title of the chapter, a written statement. By the act of 1857, chapter 456, it is declared that the capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds exceeding ten per "cent of its capital, after deducting the’assessed value of its real estate, and all shares of stock in other corporations actually owned by such company, which are taxable on their capital stock or under the laws of this State, shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county. And the provisions of the Revised Statutes just cited relate to the power of taxation conferred by the act of 1857. "Whatever may have been the duty of the company to the State it is quite clear, as already suggested, that there was no statement made to the tax commissioners, who were the officers invested with the subject of taxation, and were the proper officers, so far as related to the county of New York, with whom the required statement should be filed.

The section cited from the law of 1853 expressly declares that the “ stock of such company, in amount equal to such cost, or the dividends thereof, shall be subject to taxation in the same manner, and at the same rate, as the stocks or dividends of other companies incorporated by the laws of this State are subject.” And it would appeal1 from this consideration of these different provisions, that it would be subject to taxation for the actual cost of its lines within this city, and for such personal property or real estate also as it might own in this city at least. These statutes in reference to statements have not been complied with, and between the first Monday of January and the 30th day of April, 1881, during which period they had the right to correct the tax books, on application duly made, no such statement appears to have been furnished.

The relators contend, it is true, that the proper officer referred to-in the section is not named, and for this reason they were not obliged to make the contemplated statement to the tax commissioners. This-view cannot be sustained. It was incumbent upon the defendants to discover, by inquiry, who were the officer or officers having the power to impose assessments or taxes in each county through which their lines passed. If such inquiry had been made, it would have been ascertained that the tax commissioners were the proper persons-to whom to make the report in this case. As we have seen from the opinion of Judge Lawrence, it has been held that where a company failed to make the statement required, the assessors had the right to assess the capital stock according to the best information they could procure. If the relator has been assessed beyond the sum Which should be imposed, it results from its negligence, and it must bear the burden. A compliance with the -statute of 1853-would have rendered it the duty of the commissioners, doubtless, to limit the assessment as already suggested herein, and would have prevented in that way the imposition of a sum in excess of what was right.

.In view of the omission of the relator to file the statement mentioned, and to present its objections to the tax commissioners before the books were closed, and of the facts existing apparently at the time of the action of the board of aldermen in reference to it, there was nothing to show that the assessment was illegal, erroneous, or unequal, and therefore there is nothing under the provisions of chapter 269 of the Laws of 1880 calling upon this court to make the correction which the relator seeks in this proceeding. The Court of Appeals, in their consideration of that act, declared, in the case of the People ex rel. The Westchester Fire Insurance Company v. Davenport et al. (91 N. Y., 571), that there was nothing in it by which it was intended to exempt the property of corporations affected thereby from local taxation.

The result of a consideration of the whole case, is, that the disposition made of it in the court below, is correct, and that the action of the commissioners should be affirmed, and the writ dismissed.

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

Decision of commissioners affirmed, and writ dismissed.


author: Brady, P. J.:

text:
    EDWARD REILLY, Appellant, v. GEORGE H. SISSON, Respondent.

      Attachment — the affidavit upon which it is granted, should, show clearly that a cause of action exists in favor of the plaintiff.

    On November 5, 1883, the plaintiff applied for an attachment against the property of the defendant upon the ground that he was a non-resident. The affidavit made on that day, stated that the defendant was indebted to the plaintiff in the sum of $6,000, over and above all counter-claims known to the plaintiff, for damages for the breach of a contract, and that the indebtedness arose upon the following facts: That “ at sundry times since April 1, 1888, and up to and including this date, the said plaintiff, at the special instance and request of the said defendant, loaned and advanced to the said defendant, in cash, sundry .sums and amounts of money, amounting in the whole to the said sum of $6,000, and which he agreed to repay to the plaintiff, and no part of which has at any time been repaid, and which the defendant has neglected to repay to the plaintiff, and still so neglects.”

      Held, that the affidavit failed to show any cause of action existing in favor of the plaintiff, as it did not appear, expressly or by necessary implication, that all or any of the money so loaned was due and payable at the time the attachment was issued.

      Smith v. Davis (29 Hun, 306); Pomeroy v. Picketts (27 id., 242), followed; Kiefer v. Webster (6 Hun, 526) distinguished and criticised.
    Appeal from an order made at a Special Term vacating an attachment against the property of the defendant as a non-resident debtor.

      The affidavit upon which the attachment was issued, alleged, among other things, that “Edward Reilly, the above named plaintiff, being duly sworn, says that the above named defendant is justly and truly indebted unto this deponent in the just and full sum of six thousand dollars, lawful money of the United States, over and above all counter-claims known to the plaintiff, for damages upon a breach of a contract, express or implied, other than a contract to marry, and that such indebtedness arises upon the facts next hereinafter set forth and stated. At sundry times since April 1, 1883, and up to and including this date, the said plaintiff, at the special instance and request of the said defendant, loaned and advanced to the said defendant, in cash, sundry sums and amounts of money, amounting in the whole to the said sum of six thousand dollars, and which he agreed to repay to the plaintiff, and no part of which has at any time been repaid, and which the defendant has neglected to repay to the plaintiff, and still so neglects.”

      P. J. Joachimsen, for the appellant.

      Stern ds Myers, for the respondent.
   Brady, P. J.:

The plaintiff in this case, in the affidavit on which the attachment was granted, alleges that the defendant was indebted to him in the just and full sum of $6,000, over and above all counterclaims, for damages for a breach of a contract, express or implied, other than a contract to marry, and that such indebtedness arises upon the facts stated. And the facts are these. That at sundry times since April 1, 1883, up to and including this date, namely, the 5th day of November, 1883, upon which date the attachment was granted, the plaintiff, at the special instance and request of the defendant, loaned and advanced to him sums of money, amounting in all to the sum of $6,000, which he promised and agreed to repay, but no part of which has been repaid. It will appear, therefore, from the affidavit that on the very day when some portion of the money was loaned to him, namely, the 5th day of November, 1883, when the affidavit was made, he had loaned and advanced money to him. As to what arrangement was made with regard to the repayment of the money, whether it was to be repaid instantly or •at some time in the future agreed upon by the parties, whether any notification to repay the money so alleged to be advanced to the defendant was given him, and whether he had any information at all on the subject, is not alleged. Nor is it stated that any demand was made upon him on the date that the suit was commenced for the money which is asserted to have been loaned and advanced. There is, in other words, nothing to show that as to the money at least that was advanced upon the day that the attachment was •granted, there was any breach of the contract to pay. It is not reasonable to suppose that the money advanced upon the fifth day ■of November was to be paid on the fifth of November, in the .absence of any allegation to the contrary. But even if so the defendant would have the whole day to pay it. The learned judge in the court below therefore regarded the affidavit as one which was .subject to the criticism made upon the affidavit in the case of Smith v. Davis (29 Hun, 306) and Pomeroy v. Ricketts (27 Hun, 242); and this was a correct view of the subject.

In the case of Pomeroy v. Picketts (supra), the court said that it was indispensable to show that a cause of action existed before the right to an attachment could be made to appe ar, and that no hardship was imposed upon the plaintiff, who was allowed to prove this fact by his own affidavit, in requiring that it should lie made out with a reasonable degree of clearness, and that the plaintiff must ■certainly be required to show that he has a demand upon which the defendant has become legally liable for the recovery of judgment against him, before a cause of action could be made to appear. And in the case of Smith v. Davis (supra), the court said : “ To entitle a party to make such a seizure (under an attachment) before his right to appropriate the defendant’s property has.heen established by evidence, reasonable and satisfactory proof is required. A plain ■case must be made out and where it is not, then it necessarily follows ■that the attachment must be set aside.” And the learned judge in •the court below said that if the affidavit was true upon which the •attachment was granted, a portion of the loan was made on the day the attachment was issued. ' He might have added that not only was the loan made upon that day but the money advanced, because, as we have seen, the language of the affidavit is that at sundry times from the 1st of April, 1883, up to and including the fifth of'November, which was the date of the affidavit, the plaintiff loaned and advanced to the defendant cash. And the learned justice also said: “ Therefore I do not think that a breach of the alleged contract was shown.”

The case of Kiefer v. Webster (6 Hun, 526) seems to be, but is not, in conflict with these views, because the allegation in that case was that the defendants were indebted to the plaintiffs in a sum named for goods sold and delivered, for which they had promised to pay but failed to do so. The time of the delivery is not stated, and it may be assumed that the promise was made after the delivery on demand. In reference to that case it must also be said the rule adopted was very liberal and should not be extended, particularly since the subsequent cases, to which reference has been made have weakened its authority. It must be confined to cases, if it be held yet to be controlling, of a precisely similar character.

For these reasons it is thought that the judge in the court below was right in the disposition he made of the application to vacate the attachment, that the attachment should not be held, and that on the contrary it should have been vacated as it was. The order appealed from is therefore affirmed, with ten dollars costs and the disbursements of the appeal.

Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Bradt, P. J. i

text:
    JOHN F. HATHEWAY, Appellant, v. AMERICAN MINING STOCK EXCHANGE, Respondent, Impleaded with Others.

      Unincorporated association — actions against — upon whom, the summons may be served when it has no president or treasurer — Code of Oivil Procedure, sec. 1919.
    This action was brought against the American Mining Stock Exchange, “John K. Mullaney, as president or chairman of said exchange,” and other persons, trustees of an insurance and gratuity fund of said exchange. The summons and complaint were served upon the exchange by serving the same upon Mullaney. It was alleged in the complaint that the exchange was an unincorporated association composed of about 100 members. A motion having been made to vacate the service of the summons and complaint, upon the ground that section 1919 of the Code of Civil Procedure only authorized actions against such associations to be brought against their president or treasurer, and that the American Mining Stock Exchange had neither of those officers

      Held, that the motion should be denied and that the service made upon Mullaney, who was the chairman and presiding officer of the association, was valid.
    The object of the provisions of the section, specifying the officers of the association against whom actions are to be brought, was to secure the service of the papers upon the persons who represent the association, and in that way prevent a judgment from being obtained against it without its knowledge. Service upon its-chief officer secures such notice, and no association should be permitted to secure immunity from prosecution by reason of the designation which it adopts for its chief officers and representatives. (Brady, J.)
    Appeal from an order made at a Special Term vacating and setting aside the service of the summons and complaint herein.
    The action was brought against the American Mining Stock Exchange, “John R. Mullaney, as'president or chairman of said exchange,” and five persons, trustees of the insurance and gratuity fund of said exchange.
    The complaint alleged that the exchange was an unincorporated voluntary association, composed of about 100 members. Two copies of the summons and- complaint were served upon the defendant Mullaney, one directed to the “ American Mining Stock Exchange ” and the other to “John R. Mullaney, president, or chairihan thereof.”

      Royal 8. Crane, for the appellant.

      Root <& Bartlett, for the respondent.
   Bradt, P. J. i

This action was commenced to effect the dissolution of the-American Mining Stock Exchange, the distribution of the insurance and gratuity fund created by and belonging to the members and asking that the trustees be restrained from further acting. Service of the summons wasynade on John R. Mullaney, and a motion was made to set it aside upon the ground that he was not the president of the exchange, the contention being that under section 1919 of the Code, service must be made on the president or treasurer, and as tbe officers of the company were a chairman and secretary, the court had no jurisdiction by virtue of the service made. .

The point is technical and has no merit. The plaintiff’s affidayit shows, and the defendants do not controvert the allegation that Mullaney was practically the president, because he was the presiding officer. If we regard him as chairman it makes him the presiding officer. Such is the definition of Webster and such is the popular acceptation of that term. .Being the chairman of the Mining Exchange he is substantially and in legal effect, for the purpose of the service of the summons and complaint, the presiding officer, vested with the authority which such a position confers. Mr. Mullaney therefore being the chairman and the representative as such, was really the chief executive officer, and the chief excutive officer of a company is the person contemplated by the provisions of the Code upon whom the service is to be made.

Ey section 431 of the Code, providing for the manner in which service of a summons may be made upon a domestic corporation, it is declared by the third subdivision that in any other case than that mentioned in the two preceding subdivisions, which do not apply herein, service may be made by delivering a copy to the president or other head of the corporation; and by sectioii 432 it is provided that personal service of a summons may be made upon the defendant, being a foreign corporation, by delivering a copy of the summons to the president, treasurer or secretary, or if the corporation lacks either of these officers, to the officer performing corresponding functions u/nder another name.

It is contended by the respondent that the statutory provisions contained in section 1919 of the Code, to which reference has been made, should be strictly construed, and that they only relate to such associations as have a president or treasurer and expressly designated as such. The various provisions of the Code to which reference-has been made, including section 1919, show that that view is not within the letter or spirit of the statute. Whether the chief officer' is called president or chairman makes no difference. The object of the provisions referred to is to secure the service upon the person who represents the company or association, and in that way prevent a judgment from being obtained without the knowledge of the association or company proceeded against. Service upon the chief officer secures such notice, and no company or organization should be permitted to secure immunity from prosecution by reason of the designation of their chief officers who are invested, nevertheless, with due authority aud are its representatives.

Tor these reasons we think the order appealed from should be reversed, with ten dollars costs and the disbursements of the appeal.

Daniels, J., concurred.

Present — Brady, P. J., and Daniels, J.

Order reversed, with ten dollars cost and disbursements.


author: Brady, J.: Daniels, J.:

text:
    WILLARD PARKER, Appellant, v. ALBRO B. STROUD and Others, as Executors, etc., of CHARLES STROUD, Deceased, Respondents.

      Note payable on demand at a specified place —failure of the malcer to pay it when presented to him at another place — duty of the holder to notify an indorser of such failure.

    This action was brought’against the maker and the payee and indorser of a promissory note dated Oanastota, November 23, 1870, and payable, on demand, at. the Importers and Traders’ National Bank, New York city, with use. It appeared that within six months from the time the note was given the maker was requested by letter to pay the note, hut failed so to do; that in'reply to another letter requesting payment of the whole or a part of the note he said that he was negotiating the sale of some real estate and that if that was effected he would pay the whole. Ou September 22 aud December 33, 1879, letters were written to the maker by the plaintiff’s attorney, in which the latter stated that the note had been placed in his hands for collection, and asked the maker to give his early attention to the matter. The maker was solvent until 1877, when he became insolvent to the plaintiff’s knowledge. The note was presented for payment at the bank in New York, February 20, 1880, aud notice of its non-payment was given to the indorser.
    Held, that it was tbe duty of the plaintiff, upon the failure of the maker to pay ■ the note when payment was first demanded of him, to at once present it at the hank for payment and notify the indorser of its dishonor resulting from either or both of the demands.
    That by his delay in so doing he had discharged the indorser from all liability upon the note.
    Appeal from a judgment dismissing the complaint, entered upon. a nonsuit directed at the circuit.

      Earl L. Sümson and Arthur H.. Hasten, tor the appellant.

      Thomas & M. E. Barlow, for the respondents.
   Brady, J.:

This action was founded upon a promissory note in form as follows:

■a | Z J| 2

“$1100. “Canastota, N. Y. Nov. 23, 1870.

“ On demand, I promise to pay to the order of Charles Stroud eleven hundred dollars, at the Importers and Traders National Bank, New York City. Yalue received — with use.

_ “Y. W. MASON.

Endorsed — “ Charles Stroud,

•“ Canastota, N. Y.”

The maker permitted the judgment to pass against him by default. The indorser Stroud answered, but died pending the action, which was duly continued against his executors. The complaint alleged a demand of payment and notice of non-payment on the 20th of February, 1880. The answer set up as a defense:

First. A demand of payment of the maker within a year after the note was delivered; that it was not paid, and that no notice of such non-payment was given to the indorser.

Second. That the time of payment of the note, after demand, had been extended without the knowledge or consent of the indorser; and

Third. The statute of limitations, as against the indorser.

The evidence shows that the interest upon the note was paid up to the 23d of November, 1875, and further, that on the 22d of September, 1879, a letter was addressed to the maker, at his place of residence, by the counsel of the plaintiff, advising him that the note had been placed in his hands for collection, and asking early attention to the matter, and again on the thirteenth of December following; but no demand was made at the bank at which the note was payable until the 20th of February, 1880. It also appeared that within six months after the note was given there was a request of the maker, by letter, to pay it, which was not complied with; and, further, that another letter was received by the maker requesting payment of the note, or part of it, to which the reply was that he was negotiating the sale of some real estate which, if effected, he would pay the whole. The precise time when this letter was received does not appear, but it seems to have been prior to the demand of the plaintiff’s counsel in 1879. It also appeared that the maker’s financial condition was good until about 1817, at which time he advised the plaintiff that he was unable to pay, and requested further time. It thus appeared that the payment of the note had been demanded years before the demand was made at the bank, and of which latter demand only the indorser was notified, namely, in 1880.

The plaintiff insists that the prior demands are of no avail, inasmuch as they were not made at the bank where the note was payable. But this proposition should not be sustained, for the reason that the maker, when applied to personally, -admitted his inability to pay, from which it is clear that there were no funds in the bank for the purpose. The presentation at the bank, if necessary as a matter of form, should then have been made, in addition to the personal demand, if the plaintiff designed to hold the indorser. He knew from the maker’s declaration that the note could not be paid, and he was, therefore, advised of the essential fact which put upon him the obligation to send notice to the indorser. The disposition of the plaintiff to assist the maker, by granting extensions, is quite apparent from the evidence, and the inference may be fairly drawn that he did not consider the indorser, or, if he did, disregarded his rights. Assuming that the case of Merritt v. Todd (23 N. Y., 28) defines the respective obligations and duties of parties to an instrument such as the one in suit, nevertheless it does not control the disposition of this case.

The note sued upon in that case was payable on demand, with interest, it is true, but when demand for payment was made, and payment refused, notice of the dishonor was promptly given. The court declared that the note was a continuing security, and that the indorser remained liable until an actual demand and notice. Such is no doubt the general rule. This rule, applied here, disposes of this appeal, without considering any other question. The demands made of the maker for payment within the year, and subsequently and prior to the demand at the bank, were actual demands, under the circumstances, disclosed by the evidence. The demand at the bank was a mere form, the result of which might readily be anticipated by the plaintiff, with his knowledge of the maker’s financial condition, of which he had been advised, and it was an idle ceremony as to such result. It has not been declared in any case which lias been found, that a presentation for payment, to the maker of a note payable on demand, is not an actual demand, although the note is payable at a particular place. A strict compliance with the terms of the note in that respect could be insisted upon only by the indorser. The maker would not be discharged by the omission. (Hills v. Place, 48 N. Y., 520.) If the holder chose to adopt another mode of presentation, and in that way learn of the inability of the maker to pay, he cannot delay the formal presentation, deal with the maker hy extending his time, and when he finds that insolvency has intervened, make presentation at the stipulated place, and insist that prior to that act there was no actual demand. The indorser here did not put his defense only upon the ground that the plaintiff omitted within the year to make a demand at the bank, but mainly upon the ground that he made a demand of the maker, and was advised of the inability to pay, and omitted to give notice of the fact to him. The obligation resting upon the plaintiff when he demanded payment of the note from the maker, was to present it to the bank for payment, and to notify the indorser of the dishonor of the note resulting from either or both of the demands. The principles of justice applicable to this case seem, therefore, to demand that the judgment should be affirmed.

Davis, P. J., concurred.

Daniels, J.:

I entertain serious doubts whether the requests made for payment or part payment of the note, and the failure of the maker to comply with such requests, dishonored the note. The requests seemed to be of a friendly nature, not made in such a manner as indicated an intention to end the credit. But as my brethren are confident in their conclusions that the requests, followed by the failure to pay, did dishonor the note, and relieved the indorser, although by the terms the bank was designated the place for such demand, I defer to their superior wisdom, and concur in the decision.

Judgment affirmed.


author:
Brady, J.:
      Daniels, J.:

text:
    LOUIS SMADBECK, Appellant, v. GEORGE H. SISSON and JOHN J. SAFELY, Respondents.
    Attachment— the affidavit must show that a cause of action exists in favor of the plaintiff — when a demand, and refusal to pay for services rendered must he alleged.

    Tie plaintiff obtained an attachment against the property of the defendants, as non-residents, upon an affidavit stating that the defendants were indebted to-him, in a sum named, for work, labor and services done and performed by him for them at their request, the reasonable worth of which they had promised to pay; that such work and services were reasonably worth the sum of $30,000; that no part of it had been paid, and that the said sum was still due and owing from the defendants to the plaintiff, over and above all counter-claims. It was then stated that the said work, labor and services were performed during a period extending from September 1, 1883, down to the time of the commencement of the action.

      Reld, that as the action was commenced on the very day the services were completed, and as the defendants were entitled to the whole of that day to pay for them, and as no demand and refusal to pay was alleged, no cause of action was shown and the attachment was properly dissolved.
    Appeal from an order made at a Special Term, vacating an attachment against the property of the defendants as non-resident debtors.

      Morris Goodhart and P. J. Joaohimsen, for the appellant.

      Stern <& Myers, for the respondents.
   Brady, J.:

Tbe learned judge in tbe court below vacated the attachment granted in this case upon the ground that a cause of action was not clearly made out by the affidavit on which it was granted. The statement in the affidavit of the plaintiff is, that the defendants were indebted to him in a sum of money mentioned, over and above all counter-claims, and upon facts which he recited, namely, for work, labor and services done and performed, and caused to be done and performed, by and for the defendants, at their special instance and request, in consideration that they undertook to pay what the services were reasonably worth, and then stated of what the services consisted. He further alleged that the work and services thus indicated were reasonably worth the sum of $20,000, that no part of it had been paid, and that the sum which they were reasonably worth was still due and owing from the defendants to the plaintiff, over and above all counter-claims. Then follows a statement that the “ said work, labor and services were performed during a period from September 1, 1882, in Arizona, to the time of the commencement of this action,” so that the action was commenced at the time the services were complete.

It would appear from this statement that on the very day that the services were completed and all the obligations on the part of the plaintiff performed, the action was commenced. There is no statement of any notification to the defendants that the services were completed, no evidence of any demand having been made, no proof of any refusal to pay, and no statement of any fact from which the court could draw the inference that in this regard the right of action was complete on the day when the action was commenced. This element of the case was one of great importance in the consideration of the propriety of granting the attachment. It is discussed in au elaborate opinion by the justice in the court below, who arrived at the conclusion that there was no evidence of any breach of the contract, that there was no demand, and that .there was no refusal to pay, therefore, that there was no fact stated from which the court could say there was a breach of contract; that the affidavit literally read meant that the suit was commenced simultaneously with the performance of the work, and that the only evidence of the breach was the plaintiff’s own assertion. And the judge further remarked that if the affidavit of the plaintiff was true, there was not an instant of time between the completion of the work and the commencement of the action.

The case of Kiefer v. Webster (6 Hun, 526), is not in conflict with these views, because the allegation in that case was that the defendants were indebted to the plaintiffs in a sum named for goods sold and delivered, for which they had promised to pay but failed to do.

We think the disposition of the application was a proper one and that the attachment should have been vacated as it was.

The order appealed from is therefore affirmed, with ten dollars costs and the disbursements of the appeal.

Daniels, J.:

Tbe defendants were entitled to tbe whole of tbe day in wbicb the services were completed to pay for their performance. Tbe action was, therefore, prematurely commenced, and tbe attachment was properly set aside.

Present — Brady, P. J., and Daniels, J.

Order affirmed, with ten dollars costs and disbursements.


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

text:
    In the Matter of the Petition of the UNITED STATES for the Appointment of Commissioners, Pursuant to Chapter One Hundred and Forty-seven of the Laws of the State of New York, as Amended by Chapter Three Hundred and Forty-five of the Laws of Eighteen Hundred and Seventy-nine.

      Proceedings to acquire tide to land for a public improvement — when the expenses of the petitioner are to be included in the assessment —1878, chap. 147; 1879, chap. 345.
    Pending an application to congress for an appropriation for the survey and improvement of the Harlem river, chapter 147 of 1876 was passed by the legislature of this State; this act authorized the engineer in charge of the improvements for the United States, and any other authorized agent of the United States, to
    ' take the necessary proceedings to acquire the right of way. The provisions of the act were similar to those of the general railroad act, but contained no provision for tlje payment for the lands to be taken or for the expenses of the proceedings. In 1878 and 1879 acts were passed by congress appropriating money for the said improvement, but expressly declaring that the appropriations should not be available until the right of way was secured to the United States free of cost.
    Chapter 345 of 1879 was passed by the State legislature and provided for the appointment of commissioners to estimate and assess the damages to be occasioned by the improvement, and establish an area of real estate “upon which the amount necessary to pay the awards and expenses of such proceedings shall be assessed,” and directed that there should be paid from the moneys to be collected from such assessment “ the necessarry expenses of the several proceedings under this act, to be certified by one of the justices of the Supreme Court for the first judicial district.”
    Held, that under the said act the United States engineer in charge of the improvement was entitled to select and appoint such attorney and counsel as he might deem fit to institute the necessary proceedings.

      That he was not required to select such attorney from the salaried attorneys of the United States government.
    That the expenses arising from the employment of the attorney so selected by him should he taxed hy a justice of the Supreme Court and included in the assessment to he made hy the commissioners. (Dayis, P. J., dissenting.)
    Appeal from an order denying the application of Messrs. Lyon & Ogden for counsel fees in conducting this proceeding.

      Joseph H. Choate and Thomas L. Ogden, for the appellants and petitioners.

      John C. Shaw, FranMin Bartlett, J. M. Martin and Fordham Morris, for the respondents, property owners.
   Brady, J.:

It appears that in 1878 an appropriation was made by congress for the survey of the Harlem river and Spuyten Duyvil creek, with the view to their improvement by a canal between the North and East rivers. General Newton, who seems to have been authorized so to do, made a survey of the loctis in guo and reported the practicability of the work at a cost of something less than $2,000,000. It also appears that whilst an application to congress was pending for an appropriation to commence the work, the legislature of this State, by chapter 147 of the Laws of 1876, authorized the government of the United States, upon the petition of the engineer in charge of the improvement, namely, General Newton, to take proceedings to procure the right of way. The sections of this act are substantially the same as the general railroad act, making no provision, however, for the payment of awards for the lands to be taken or for expenses. It is suppbsed that this feature of the act resulted from the expectation that the necessary expenditures would be provided for by proper congressional action. This was not done, however, and was not in contemplation, inasmuch as in the first appropriation made for the work, in 1878, it was expressly declared that the appropriation was not to be available until the right of way for the work was secured to the United States free of cost, and the second appropriation, made in 1879, contained the same condition. (See Harbor Improvement Acts of 1878 and 1879, chap. 264 of the Statutes at Large of the United States of the year 1878, p. 158; and chap. 181 of the year 1879, p. 372.) The effect of this declaration was to make it necessary, in order to complete the design of the survey, to procure a grant to the United States of the right of way free of cost, and, therefore, the legislature by chapter 315 of the Laws of 1879, passed an act providing for the appointment of commissioners of estimate and assessment. And by section 3 they were directed to establish the area of real estate upon which the amount necessary to pay the awards and expenses of such proceedings shall- be assessed by them,” and by seetioh 5 to pay from the moneys to be collected upon such assessment “ the necessary expenses of the several proceedings under this act, to be certified by one of the justices of the Supreme Court for the first judicial district.”

By the act of 1876 {supra), as we have seen, it was provided that the United States, upon the petition of the engineer in charge, should initiate the proceeding to procure the right of way. • This was done. The commissioners were appointed and a report made. Subsequently, and in April, 1883, the commissioner’s bill of costs and expenses in the matter was presented by Samuel E. Lyon and Thomas L. Ogden to Judge Barrett, sitting in chambers, for taxation and certification under the provisions of the act of 1879 {sup>ra). 'The learned justice referred the same to the Hon. "William Mitchell for his report, excepting, however, therefrom, the charges of the attorney and counsel who conducted -the proceedings, Justice Barrett deciding that under the acts relating to the subject they were not entitled to any. compensation from the fund. Whether they were or not is the question presented upon this appeal.

Some of the respondents, who are owners of land affected by the improvement, not only do not oppose the taxation of the costs and counsel fees, but think it should be allowed, while others strenuously object to any such allowance. No provision is made in the act of 1876, or the amendments thereto, declaring that the proceeding shall be conducted by any law officer, either State or Federal; indeed, there is no suggestion in the acts on that subject. It is merely provided, as we have already seen, that the application of the United States may be upon the petition of the engineer in charge of the improvement.

By the act of 1879, to which reference has already been made, the chief object was to secure the benefit of the congressional appropriation for the benefit of the Harlem river improvement and Spuyten Duyvil creek. It is provided by section five, amending section three of the act of 1876, that commissioners of estimate and assessment shall be appointed, and that the amount to be assessed upon the real estate in front of and benefited by such improvement, which the commissioners should establish as the area of real estate upon which the amount necessary to pay the awards and expenses of such proceeding, shall be assessed by them. - And by section six, amending section five of the original act, it is provided that from the moneys collected, the commissioners shall pay the necessary expenses of the several proceedings under the act, to be certified by one of the justices of the Supreme Court for the first judicial district. And it seems to be deducible from this legislation that the intention of the legislature was to relieve the United States from all expenditures ; and this intention was further declared by chapters 65 of the Laws of 1880 and 61 of the Laws of 1881, the former providing for the issue of $50,000 in city bonds, in anticipation of the collection of the assessments growing out of the contemplated improvement, and directing the payment of such assessments to the comptroller, who from the fund so constituted should pay the awards for the land taken, and the expenses, charges and disbursements of the proceedings taken under the several acts, as taxed and certified by a justice of the Supreme Court. The provisions of the act of 1881 are substantially the same.

The learned justice in the court below rejected the item of costs and counsel fee, as the opinion is understood, for the reasons, first, that one of the salaried attorneys for the government should have been selected to conduct the proceedings, and that it could not successfully be asserted that the legislature meant to permit an engineer of the federal government to select such attorney and counsel as he might deem fit, and to employ him at the expense of the property owners. The learned justice deemed it his duty to state that the services rendered by the attorney and counsel had undoubtedly been valuable, and that they should have been compensated therefor by those who employed them, but he said that what he felt constrained to hold was, that such services could not, under the act, be charged upon the property owners.

. The act of 1879 was a special act in reference to a special subject ; that is to say, it related to the improvement of Harlem river and Spuyten Duyvil creek, and was founded upon congressional action on the subject, and by which appropriations for that purpose were made. The acquisition of the right of way necessary to carry out the object contemplated was one which necessarily would be attended by expense, no part of which the federal government was willing to pay, and the act of 1879 made special provision for it, several acts of the legislature relating to the subject having been passed. By the act of 1876 the United States, through the engineer in charge of the work, was to present the petition, and he selected the attorney and counsel who conducted the proceeding to acquire the right of way. It is to be presumed that proper notice was given and that the authorities were informed of the proceeding thus commenced, and that it was not conducted by any salaried officer of the United States or by the corporation counsel of this city. As we have seen, there was an omission in these acts of the designation of the person by whom the proceedings were to be conducted, the only provision being that they should be initiated by the engineer having charge of the work. It does not seem to bé a just presumption that he'knew of the existence of any officers, federal, State or municipal, whose duty it might become to conduct the proceedings without charge, assuming that there was such an officer. There was no attempt by the engineer to incur any expense on the part of the United States, and, therefore, the provisions of the Revised Statutes of the United States declaring that no compensation should therefore be allowed to any person besides the respective district attorneys and assistant district attorneys for services as an attorney and counselor to the United States, or to any branch or department of the government thereof, except in special cases, etc., provided by law, have no application further than, it would seem, to strengthen the propriety of allowing the charge of attorney and counsel fees of the gentlemen who conducted the proceeding on the petition of the engineer in charge.

The employment of counsel was undoubtedly necessary to perfect the right of way, and inasmuch as the statutes relating to that particular subject are silent as to who should act in that capacity, but comprehensive and clear in providing for the expense of the entire proceeding, and the counsel selected having rendered valuable services, there seems to be no good reason why the rejected item should not be included. If the statutes relating to the subject were such that the only inference to be drawn from the language employed was that some salaried officer should be employed for the purpose of conducting the proceedings, the views herein expressed would not be entertained. ' The whole subject seems to have been placed within the control of the engineer in charge, who is named in the act of 1876 as the person to institute the proceeding to acquire the right of way, and this would seem to invest him with power to do all that was necessary to accomplish the object in view. It was provided, for example, that he should present the petition on the part of the United States, and with the understanding that the United States was not to be subjected to any expense which might be incurred by that performance, and it is not disputed that the services of an attorney and counselor at law were necessary to aid him. It would seem to follow as a natural and necessary legal sequence, there being no instruction or restriction upon that particular element of the matter, that he could select such persons as he choose to assist him professionally.

For these reasons it is thought that the order of the court below in excluding the item of charges for attorney and counsel fees was erroneous, and that that part of it should, therefore, be reversed and an order made directing that the item be included in the order of reference.

Davis, P. J.:

I do not concur in the conclusion of my brethren. The proceeding was required to be and was taken in the name of the United States, by an officer of that government who was authorized to institute and conduct the same. It is an established rule that no officer of the United States government can employ an attorney to appear in its name in any legal proceeding without express authority from some superior officer who is vested by law with power to authorize an appearance on behalf of the government. It is not shown that the United States Attorney, or the United States attorney for the district, gave any authority to the engineer to employ the attorneys, or that either they or the Secretary of the Treasury consented to their appearance.

The court at Special Term, I think, was correct, in holding that the charges for counsel and attorneys’ fees should, under the •circumstances, be exclúded.

I therefore dissent.

Present — Davis, P. J., Beady and Daniels, JJ.

Order reversed and order entered as directed in opinion.


author: Daniels, J.:

text:
    MARIE A. WTTTHAUS, Appellant and Respondent, v. FREDERICK C. C. SCHACK, Respondent and Appellant.

      Dower — action by a widow to vacate a deed in which she had joined with her husband— when she may recover in such an action her dower interest — when she must recover such interest in an action to have her dower admeasured — she cannot recover rents from her husband’s grantee' accruing prior to her demand for dower.

    'This action was brought by the plaintiff, after the death of her husband, to set aside a deed in which she had joined with him in conveying certain real estate owned by him to the defendant, to be sold by the latter, the proceeds arising from such sale to be applied to the payment of certain debts of the husband. This deed was set aside, in so far as the plaintiff’s right of dower was affected thereby, as to a portion of the lands which the plaintiff did not know were includfed in the deed at the time she executed it. The interlocutory judgment, after establishing her title as doweress in such lands, directed an accounting of the rents and profits of the premises and adjudged that she was entitled to recover her proportion of the same.
    Upon an appeal from the final judgment, entered upon the report of the referee so appointed to take the accounting:

      Deld, that as to so much of the said real estate as had been sold by the defendant to bona fide purchasers, against whom no action would lie by the plaintiff, the, proceeds of the sales received by the defendant constituted a trust fund, as to which the plaintiff was entitled to an accounting and to recover thereof the amount found due to her.,
    'That as to so much-of the said real estate as still remained in the defendant’s hands the plaintiff could not recover her share of the rents and profits thereof until she had had her dower therein set apart to her in an action brought for that purpose.

      Kyle v. Kyle (67 N. Y., 400) distinguished and followed.
    'That as the defendant was the grantee of the plaintiff’s husband, the plaintiff could recover none of the rents and profits of the lands which had accrued or been received prior to the time when her demand for dower was first made

      Appeals from a judgment, entered ontlie direction of the Special Term, and a motion on behalf of the defendant for the re-argument of the appeal from the interlocutory judgment herein, heretofore decided.

      G. Zabrishie, for the plaintiff.

      Lewis Sanders, for the defendant.
   Daniels, J.:

The plaintiff joined her husband in a deed executed on the 23d day of December, 1876, conveying real estate owned by him to the defendant, for the purpose of selling the same and applying the moneys realized from the sales to pay off and satisfy claims and demands mentioned in the deed and owing by the plaintiff’s husband. He died on the 19th of March, 1877, and in the following month of April it was alleged by her that she first discovered that the deed included lands in the city of New York, south of Fifty-ninth street.

And she commenced this action 'to vacate and set aside the deed so far as it included her dower rights, or interests in such lands, on the ground that she had assented only to the execution of such a conveyance of lands owned by her husband as were north of Fifty-ninth street, and that she had been deceived into the execution of the deed by the representation that it contained only such land. The action was tried upon proof substantially sustaining her allegations, and an interlocutory judgment was thereupon entered setting aside and annulling the deed so far as it affected the plaintiff’s dower right in lands south of Fifty-ninth street. And the judgment .after establishing her title as dowress in such lands directed an accounting of the rents and profits of the premises, and adjudged that she was entitled to receive her proportion of the same. And this judgment on appeal, after being modified was affirmed. Neither upon the trial nor the hearing of the appeal was it objected that such a recovery could not be had by her in this action, or in any other not in form brought for the recovery of the plaintiff’s dower. And because of that circumstance and the decision of the Court of Appeals in Kyle v. Kyle (67 N. Y., 400), the motion has been made for the re-argument of the appeal from the interlocutory judgment. But nothing contained in that case will probably require such a re-argument for the purpose of adjusting and determining the legal and equitable rights of these parties. For the direction given for the accounting of the rents and profits appears to have been entirely proper as to the real estate sold by the defendant, in which the plaintiff under this decision has been held entitled to her dower. For as to that the decision of the case just referred to does not affect the rights or liabilities of the parties. It was there held that ■ the widow was not entitled to recover the rents and profits of the land in which she might be entitled to dower as a distinct or independent cause of action, but only as an incident to the recovery of her dower in the- property. This ruling was made upon the manifest effect of the provisions of the statute declaring that whenever a widow should recover her dower in lands she should also be entitled to recover damages for the withholding of such dower. (2 B. S. [6th ed.] 1122, § 19.) And this provision has since been embodied in section 1600 of the Code of Civil Procedure. The statute also further provided that the plaintiff recovering judgment in ejectment in any, of the cases in which the action might be maintained should be entitled to recover damages against the defendant for the rents and profits of the premises recovered. (3 B. S. [6th ed.], 577, § 39.) But these provisions of the statutes manifestly relate to actions in which the widow may recover the land itself so far as it may be subject to her right of dower, and do not therefore wholly include an action of the nature of the present suit. For this action not only included lands still held by the defendant, in which, upon setting aside so much of the deed as affected her dower interests, she would be entitled to recover her dower, but' in addition to such lands those that were sold by him to purchasers in good faith under the authority of the deed in which the plaintiff herself had joined. As. to the latter class of lands she could not recover her dower in the lands themselves under the provisions of these statutes, for the property had passed into the hands of purchasers,'having no notice- or information of her rights, and therefore would be held by them discharged of all her claims as dowress. This would necessarily follow from the authority contained in the deed executed by herself and her husband to the defendant, for it in terms empowered him to sell and convey the property, and so far as he did so under its. authority, before that was legally questioned or assailed, the title of the purchaser would be good. But she would not necessarily, by that circumstance, be deprived of her interest in the fund realized from the sale as the substitute for the principal, after the deed had been so far vacated and annulled as to exclude from it her dower right in the property south of Fifty-ninth street. From that time certainly the defendant would hold the proceeds obtained from the sale of the plaintiff’s dower interest as a trustee for her benefit, for they were to that extent the substitute of her interest in the estate or property sold. And where that may appear to be the character of the fund in the hands of the defendant, it may be reached by a proper action, for that purpose, brought in this court as a court of equity. The fund itself is capable of being clearly and distinctly traced, and so far as it may have been obtained by selling and conveying the right which 'the plaintiff has now maintained to dower in this property, she is equitably entitled to recover it. Upon this subject “it has been well remarked that the receiving of money which consistently with conscience cannot be retained, is in equity sufficient to raise a trust in favor of the party for whom or on whose account it was received. And, therefore, whenever any interest arises the true question is not whether money has been received by a party of which he could not have compelled a payment, but whether he can now with a safe conscience ex aequo et iono retain it.” (2 Story’s Eq. Jur. [12th ed.], §§ 1255-62.)

So far as the property described in the deed was sold by the defendant under its authority and the proceeds were received by him, a proper case for a suit in equity was presented, and neither the statutes nor the construction placed upon them in Kyle v. Kyle (supra), have divested the court of its jurisdiction over such an equitable action. For neither this authority nor the*statute has in any form attempted to abridge the jurisdiction of this court, as ai court of equity over .controversies concerning funds of this general'character. It was clearly its proper province to entertain jurisdiction over the action to vacate and. annul the deed executed by the plaintiff so far as it included her dower interest in property south of Fifty-ninth street. And having jurisdiction over that subject, as well as over the general subject of trusts, it was the duty of the court to proceed, certainly so far as might be necessary, to secure an accounting of this fund, and the distribution and payme'nt of the plaintiff’s portion of it to her. These were both proper subjects of equitable jurisdiction, and to that extent the interlocutory judgment heretofore affirmed, may still be held to have properly proceeded," and if any further or more explicit directions are required to be given, that can be done by an order expressly declaring the extent and limits of such an accounting. And that will include all except the remaining parcels of real estate still held by the defendant and known as 404 and 406 Fourth avenue in the city of New York. The motion for the re-argument of the appeal from the interlocutory judgment may therefore very well be denied.

The reference which was directed by the order and followed by the referee, was much broader than the rights of the plaintiff as they have been considered would justify. It was made to include the rents and profits and management of the property south of Fifty-ninth street during the time it was under the defendant’s charge, and partly including the period therefore in which the plaintiff’s husband was living. As to that period of time, it certainly was unauthorized, for she was entitled to no rents or profits of the land in which her right to dower became complete upon the decease of her husband, before the occurrence of that event. That was the clear language of the statute enacted upon this subject, for it had provided that the damages to be recovered by a widow for withholding her dower should be one-third part of the annual value of the mean profits from lands in which she.could recover her dower, to be estimated in a suit against the heirs of her husband from the time of his death, and in a suit against any other person from, the time of her demanding her dower from that person. (2 K. S. [6th ed.], 1122, § 20.) And the same provision was re-enacted in section 1600 of the Code of Civil Procedure. The defendant was the grantee of her husband, and held the property described in the deed as such, and she, therefore, could recover none of the rents and profits of the land against him until her dower had been-demanded from him, and that demand was first made in April, 1877. It was from that time,' and that time only, that the accounting could lawfully be taken for ‘ the purpose of determining or ascertaining her interest in the proceeds of this property. But her right was not so limited either by the order or the hearing had before the referee, for they included the management, proceeds and expenses of the property while tlie plaintiff’s husband himself was living. And it is probable that a portion of the amount directed to be recovered by the final judgment was for rents received prior to the demand of dower made in April, 1877. At least such is the construction which the report and the judgment appears to be entitled to receive, notwithstanding the qualified statement made concerning the former by the referee, and so far as the recovery has proceeded upon that basis, it certainly was erroneous.

The report also included a charge against the defendant for the proceeds of property known as 51 'Exchange place, but it was made to appear as to this property that the plaintiff herself executed a quit-claim deed releasing her dower in the property and' all other right, title and interest. Eor that she received the sum of $500, one-half of which was paid by the defendant and the other half by the purchaser of the property. And this, under the evidence, should have been held to be a satisfaction of all her claims so far as they depended upon this parcel of land. But it was not so held, and she was allowed to recover interest upon one-third of the surplus proceeds'received from the property by the defendant.

The judgment also directed the payment to her, in addition to her interest in the preceding rents, of one-third part of the net income, computed from April 2, 1882, of the premises known as 404 and 406 Fourth avenue, and it required the defendant to pay over such future income to her from time to time. This was an improper direction, for as to this property her dower was capable of being recovered in the land; and by the statutes which have been referred to, and the case of Kyle v. Kyle (supra), her right to her proportionate share of its profits- or income was dependent upon such a recovery. And as no such recovery was claimed, or had, in this action in the manner prescribed by the statute, and held to be controlling by this authority, the judgment could not legally direct the payment to her of any portion of the income of these particular parcels of property.

As to both parties, the reference proceeded on an erroneous theory. It was well directed, so far as it included the rents and profits of the property which had been .sold and conveyed by the defendant after the time when the plaintiff demanded her dower, and it should have been extended" so far beyond that as to require an accounting of the value of her interest in one-third of the proceeds received upon the sales-of the real estate made by the defendant south of Fifty-ninth street, excluding, however, the property upon Exchange place. The failure to restrain the direction within these limits was fundamental and erroneous, and the error can be in no other manner corrected than by reversing the judgment from which this appeal has been taken and directing a further reference in conformity with these conclusions. It is not necessa2y, the2’efo2’e, to consider the other objections which have been taken to the report made by the referee.

Those which have been considei’ed are unavoidable in their character, and to provide for their correction the judgment in the case should be reversed and the further reference which has been mentioned ordered under the interlocutory judgment, without costs to either party.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, further reference ordered under the interlocutory judgment, as directed in opinion, without costs to either party.