text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. A. ANDREW WEMMELL, Appellant, v. THE BOARD OF AUDITORS OF THE TOWN OF NEW LOTS, Respondent.

      Jlegislation of births, ete. —power of the boards of health as ¿0 — 1881, chap. 431 — power of boards of supervisors as to —1880,' chap. 513.
    •Chapter 431 of 1881, amending chapter 334 of 1850, imposed upon every hoard of health the duty of supervising and making complete the registration of births, deaths and marriages within the limits of its jurisdiction, and the cost of so doing, not exceeding the amount prescribed in the act, is a town charge and must be audited and allowed by the board of town auditors.
    The duty thereby imposed upon the boards of health is independent of, and not merely supplementary to, the power to provide for the registration of births, marriages and deaths conferred upon boards of supervisors by chapter 513 of 1880.
    Appeal from ah order, made at a Special Term, denying a motion for a writ of peremptory mandamus.

      'William J. Gaynor, for the appellant.

      Benjami/n, Rausch, for the respondent.
   Barnard, P. J.:

The legislature, in 1880, provided for the registration of births, marriages and deaths in each town and village in the State. (Chap. 612, Laws of 1880.) The act simply gave powers of legislation to effect the registration to boards of supervisors. It was not compulsory upon these boards to legislate. It gave no power of registration except upon the report, within three days of the event, of the attending clergyman,- magistrate and physician. The county could give the books at the county expense, and the registration was to be made in the county clerk’s office of each town and village. The -county boards of supervisors wei’e empowered “ to fix the amount and provide for the payment of the registration fees.” The act was silent as to manner of payment, whether by county or town assessment. By chapter 431 of the Laws of 1881, the legislature provided for the establishment of boards of health in each town in the State by an amendment of chapter 324, Laws of 1850. By one of the amended sections of the law of 1881 it is provided that “ it shall be the duty of every such board of health to supervise and make complete the registration of births, deaths and marriages within the limits of its jurisdiction, and in so completing the said registration the cost thereof shall be a charge upon such town, village or city, and shall not exceed fifty cents for each completely verified and registered record of a birth, death or marriage, but the town clerks and registering clerks provided by law in villages and cities may still keep all records of -births, deaths and marriages as required by chapter five hundred and twelve, Laws of eighteen hundred and eighty.” Under this law the board of health of New Lots employed the relator to make complete and keep for the board of registration of births, deaths and marriages in the town. The compensation was fixed at fifty cents for each registration. Under this contract he did the service and claimed of the board of town auditors that his claim therefor should be audited according to contract, which was refused. It does not appear that the county board of supervisors have legislated on the subject. It may, perhaps, be inferred from a statement in relator’s affidavit that the refusal was put upon the ground that the town clerk was bound to keep a similar registration. I do not deem it to be material whether the supervisors have acted or not. It is manifest that the registration, allowable under the action of the supervisors, would be very imperfect. No obligation was put upon clergyman, magistrate or physician to report in three days after the event of birth, ma.rriage or death. It was competent for the legislature to add to the efficiency of the supervisors’ action by action of the State legislature. The boards of health were to supervise and make complete “ the registration ” within the limits of each town, and at a limited cost to the town. The words permitting the town clerks to keep the records under the action of the supervisors ” were not intended to limit the duties of the boards of health. If that were their meaning, then if the supervisors did not act there would be no registration by the board of health, because it was only a supplemental board and there was no foundation upon which to supplement; and if it did act there would be no registration by the health board because of the record kept by the town clerk. The duty seems to be imperative upon the boards of health, and it must be observed notwithstanding the permission given to town clerks to keep a record under the act of 1880. This act rather seems to me to be intended to provide a method of proving births, marriages and deaths, as the record is made presumptive evidence, and the record would be rather voluntary than compulsory and for the purpose of future evidence of the fact.

The order refusing a mandamus should, therefore, be reversed and a peremptory writ of mandamus granted- to the auditors to audit the bill, with fifty dollars costs of appeal.

Dykman and Pratt, JJ., concurred.

Order' denying writ of mandamus reversed and mandamus granted, with fifty dollars costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    LODOVISKA M. BRISBANE, Respondent, v. ALBERT BRISBANE, Appellant.

      Power of a cou/rt of equity to sirilce out the defense of a party disoheymg its orders — Code of GivH Procedure, sec. 1773 — effect of.

    The power possessed by a court of equity to strike out a defense, in an action brought therein, because of a refusal to obey its orders, was not taken away by section 1773 of the Code of Civil Procedure, but still exists.

      It seems, that that section was intended to require that before punishment by fine or imprisonment could be inflicted, proof should be given showing that the amount required by the order to be paid could not be realized from sequestration or by a receiver of the property of the party in default. (Barnard, P. J.)
    Appeal from two orders, made at Special Term, striking out the defendant’s amended answer in this action because of a failure by him to pay a counsel fee and alimony as directed by orders duly made therein.
    The action was brought by the plaintiff to procure an absolute divorce from her husband, the defendant, upon the ground of his adultery.

      Frcmeis H. Van Veehten, for the appellant.

      Brewster Kissam, for the respondent.
   Barnard, P. J.:

The power to strike out a defense in an action in equity for refusal to obey orders of the court existed in the Court of Chancery, and now exists (Walker v. Walker, 82 N. Y., 260), unless section 1773 of the Code has taken it away. That section does not 'purport to take it away, but only to provide a way by which a disobedient party may be fined or imprisoned for a contempt for refusing to obey orders for the payment of alimony. The real change intended seems to have been that before punishment, by fine or imprisonment, could be inflicted proof should be given that the amount required by the order could not be realized from sequestration or by a Receiver of the property of the party. There does not appear to have been any design to destroy the old principle that courts of equity would, and could, lawfully refuse to hear a person who was in contempt for a violation of an order of the court. One who asks equity must do equity. No right is taken away which may not at once be regained by the application of the defendant to the court for leave to pay the amount ordered to be paid, and thereupon to answer and contest upon the merits.

The order should be affirmed, with costs and disbursements as of one appeal.

Dykman and Pratt, JÜ., concurred.

Order of June 17, 1884, affirmed; order of June 21, 1884, v affirmed, costs as of one appeal.


author: Barnard, ,P. J.:

text:
    ADOLPH H. GETTING, Respondent, v. NICHOLAS MOHR and MARGARETHA MOHR, Appellants.

      Swmma/ry proceedings to recover land hy a purchaser at a sale under execution— Code of Oivü Procedure, sec. 2232 — the validity of the judgment cannot he collaterally attaclced therein.

    In summary proceedings, instituted under section 2232 of the Code of Civil Procedure, to remove a person who remains in possession of real property after it has been sold by virtue of an execution against him and a title under the sale has been perfected, only the fact of the sale under the execution and the perfecting of the title thereunder need he proved. Neither the validity of the judgment nor the failure to file a transcript thereof in the county where the land was situated can be set up as a defense to such proceedings.
    Appeal from a judgment of the County Court of Suffolk county, affirming a judgment of a justice of the peace in summary proceedings.

      Fiooll Floyd, for the appellants.

      Timothy M. Griffing, for the respondent.
   Barnard, ,P. J.:

Summary proceedings may be instituted to remove a personTwho holds over and continues in possession of real property after it has been sold by virtue of an execution against him, and a title under the sale has been perfected. (Code, § 2232.) The affidavit upon which the summons was issued was very full, setting forth not only the judgment under which the sale was made, but also the filing of a transcript in Suffolk county where the land was situated and where it was sold. The affidavit upon the return of the summons was a general denial. Upon the trial before the jury no proof was given of the filing of the transcript in Suffolk county. The record was proven to have been filed in Kings county, and was produced on the trial. The sale was proven and that a title had been perfected under it. This was all that the plaintiff was called upon to establish. It was not the proper place to try collaterally the validity of the judgment. When a sale by execution was proven, and the sale had been made effectual by the sheriff’s deed, this was all that was required by the Code to confer jurisdiction on the magistrate. (Spraker v. Cook, 16 N. Y., 567; Brown v. Betts, 13 Wend., 30.) The case does not fall within the principle of the cases cited by appellant, that when a title is.taken by law the law must be strictly followed. The title was not taken by the summary proceédings, but a remedy was given by law to recover speedy possession of premises when the title had passed away from the owner by judgment proceedings.

The judgment should be affirmed, with costs.

Dtkman and Pratt, JJ., concurred.

Judgment of County Court affirmed, with costs.


text:
    WILLIAM H. LEONARD, Appellant, v. JAMES E. SPENCER and Others, Respondents.

      Nuisance — right of a landowner, specially injured, by it, to bring an action to heme a nuisance caused by a pond abated — when he may do so, although his land is expressly subject to the right of another to retain the pond thereon.

    Where a pond, maintained by the defendant for manufacturing purposes upon lands belonging to the plaintiff, and which adjoins other lands belonging to him, is a common nuisance and especially injurious to the plaintiff, he may bring an action to have the pond removed and the defendant restrained from restoring it, even though by the terms of the deed, by which the lands were conveyed to the defendant by a former owner of the lands of both plaintiff and defendant, a right to maintain and'.use the pond is expressly reserved to the defendant.

      Appeal from a judgment in favor of the defendants dismissing the complaint upon the merits, entered at Special Term.
    The action was brought by the plaintiff for the destruction and abatement of a dam which restrains the waters of the pond, known as Kirby pond, situated in Bedford and New Castle, Westchester county, and for a perpetual injunction restraining the defendants from rebuilding or renewing said dam.
    From the proofs adduced upon the trial it appeared that in the year 1866 plaintiff became, and ever since has been, the owner of about eighty acres of land, upon which is his dwelling-house, situated in Bedford, in said Westchester county, and that about seven years later, and after the defendant’s grantors had acquired a right of possession and entered therein under a certain conveyance hereinafter set forth, he became, and ever since has been, the owner of about seventy-four acres of land, partly adjoining the first mentioned tract. The said last named tract of land is nearly covered by a pond of water, now and for many years known as “ Kirby’s Pond,” caused by an artificial dam constructed about thirty years ago, which dam obstructs and prevents to a certain extent the natural flow of the water over the entire parcel of ground covered by said pond, and thereby raises the water brought upon the said parcel of ground, by divers springs and streams, to a heighth sufficient to cause it to cover the lands above mentioned and submerge the same; that since February 1,1861, and long prior thereto, there has been another dam supporting and maintaining a small pond of water by collecting and restraining the water from the said Kirby pond, situated about 800 feet below the said Kirby pond, which is used to carry a water-wheel and machinery for manufacturing purposes ; that on or about the 1st day of February, 1861, by deed dated on that day, Jane Kirby and Leonard Kirby (being then the owners in fee of the lands now covered by said Kirby pond and owned by the plaintiff, and also of the lands owned by the defendants James E. Spencer and John S. Spencer, and leased by them to the defendant, the Spencer Optical Manufacturing Company), conveyed to Catherine LI. Halstead and Patience Ann Halstead the part of such lands below the said Kirby pond, now owned by the defendants Spencer, including said last mentioned dam, and the right to the use of the waters in said small pond; that' said deed contained the following covenant, with others, to wit: “Also the right to the said party of the sebón d part, her heirs and assigns, forever, in common with Jane Kirby, her heirs and assigns, forever, to the use of the waters of the large pond, known as the Kirby Mill pond, with access at all times for both parties to the gates to turn the water on and off. The water to be used only during the regular working days and in the regular working hours, that is, eleven hours during each. day of twenty-four hours; and it is hereby expressly covenanted and ‘agreed by and between the respective parties to these presents, and their heirs and assigns, respectively, that neither party to these presents hath or shall have, nor shall their heirs and assigns, respectively, have any right to use the water in the said large pond when it falls below four feet from the top of the mill-dam; but whenever the water shall be running over the said mill-dam either party may use the water so long as it runs over the dam for so many hours a day as they wish. It is also mutually agreed that the small pond near the dwelling-house of Cornelia Geer, formerly of Jane Kirby, is to be kept full of water; that the upper and lower dam shall be kept always in order, and the expense therefor shall be borne equally, one-half thereof by the said Jane Kirby, her heii-s and assigns, and one-half thereof by the said party of the second part to these presents, her heirs and assigns;” that the plaintiff received by mesne conveyances from the said Jane Kirby and Leonard Kirby, and now holds title to and ownership of the lands covered by said Kirby’s pond, subject, however, to all the covenants aforesaid, and to all the easements in and over the same in said deed conveyed to said Catherine JEL Halstead and Patience A. Halstead, and that in the autumn of 187-3 the said Catherine H. Halstead and Isaac Halstead, her husband, and the said Patience A. Halstead, conveyed to the defendants, James E. Spencer and John S. Spencer, the lands now held and owned by them, with all the privileges, rights, estates and easements in and to the lands now of the plaintiff, covered by said Kirby’s pond, which were granted or conveyed to said Catherine H. Halstead and Patience A. Halstead by said Jane and Leonard Kirby as aforesaid.
    The court found, among other things, that the pond was a special injury to the premises and residence of the plaintiff, depreciating their value and rendering their" occupation as a residence hazardous, and that the said pond was a nuisance. He held, however, that the covenants and agreements contained in the said deeds estopped the plaintiff from maintaining this action against the defendants.

      Odie Glose, for the appellant.

      Martín J. Keogh, for the respondents.
   Barnard, P. J.:

Hnder the findings made by the court below the question presented by the appeal is one of law only. The defendant keeps and maintains a pond which is a common nuisance and specially in jurious to the plaintiff. There would be no doubt as to the case being within the cognizance of a court of equity, but the plaintiff owns the fee of the pond, subject to the right of ponding, expressly by reservation in his deed. We do not think that this dormant estate of ponding carries with it the right to create or maintain a nuisance. When the deed was taken no doubt the pond was pure and inoffensive. It has now become so filled with the wash of fields and ditches therefrom as to be dangerous to health and destructive of all enjoyment of life to the inhabitants living in the vicinity. Such a state of things could not be anticipated when the deed was taken. The subject estate is not therefore concluded by the pond as it is found to be. There is no estoppel in the fact that the plaintiff owned stock or had an interest in the company which created or which maintained the pond. There is no inconsistency even in being a stockholder in a corporation and maintaining an action against it for creating a nuisance.

The plaintiff is entitled to judgment, without costs.

Pratt, J., concurred ; Dykman, J., not sitting.

Judgment reversed, and judgment for plaintiff upon findings.


author: Dykman, J.:

text:
    ZIPPORAH R. CLARK, Respondent, v. JAMES MACKIN and WILLIAM S. VERPLANK, Executors, etc., and Others, Appellants.

      Practice'— a judgment entered in pursuance of a decision of the Court of Appeals cannot be altered by the Supreme Court — when a supplemental complaint may be filed after such a judgment has been entered.

    This action was brought by the plaintiff to procure the cancellation of the satisfaction of a mortgage and to foreclose the said mortgage, and to have another mortgage on the same premises, held by two of the 'defendants, declared subject to the plaintiff’s mortgage. A judgment was entered deciding that the lien of the mortgage held by the said two defendants was prior to that of the plaintiff, and that' she was not entitled to be subrogated to their rights under the mortgage or under a guaranty of payment accompanying the same. This judgment was affirmed by the General Term, but was so modified by the Court of Appeals as to entitle the plaintiff to subrogation upon the payment to the said defendants of the amount due to them. This judgment was subsequently made the judgment of the Supreme Court.
    Thereafter the plaintiff moved for and procured an order of the Special Term setting aside and vacating the said modified judgment, and granting him leave to file a supplemental complaint:

      Held, that in so far as the order set aside and vacated the judgment which had been entered in pursuance of the decision of the Court of Appeals, it was unauthorized and should be reversed, but that in so far as it authorized, the plaintiff to file a supplemental complaint it should be affirmed.
    Appeal from an order made at a Special Term, vacating and' setting aside a judgment heretofore entered in this action, and allowing the-plaintiff to file a supplemental complaint and mate certain-additional persons parties defendant to the action.
    This action was originally begun to obtain the cancellation of a satisfaction piece of the plaintiff’s mortgage and the establishment of the same as a first lien on the property described in it, and for its foreclosure. James Machin and William S. Yerplank, as trustees, were made parties defendant, as subsequent lienors by virtue of a mortgage given to Ramsdell & Co., and assigned by the members of that firm to those defendants. They defended, claiming .priority for the mortgage in their hands. The court at Special Term found as facts that the satisfaction piece was fraudulent; that, the plaintiff’s mortgage was a valid and existing lien; that Ramsdell & Co. took their mortgage with notice of the existence and validity of -the plaintiff’s mortgage and for an antecedent indebtedness; that Mackin and Verplank took tbe assignment of it without notice and for value, and recorded their assignment after the satisfaction piece was recorded and before this action was commenced, and as matter -of law decided that upon the recording of their assignment Mackin andYerplank acquired a lien prior to the lien of the plaintiff’s mortgage, and that as to them the complaint should be dismissed, and that the plaintiff was not entitled to subrogation to the defendants’ rights under their mortgage and a guaranty of payment held by them and made by Ramsdell & Oo. A judgment accordingly was entered, and from so much of it as was in favor of the defendants the plaintiff appealed to the General Term where the judgment was affirmed, and from the judgment entered upon the affirmance the plaintiff appealed to the Court of Appeals. Upon that appeal . a decision was rendered that the judgment should be modified so as to give the plaintiff the right claimed by her to be subrogated to the rights of the defendants under the bond, mortgage and guaranty held by them. The remittitur was filed by the defendants and an order entered modifying the judgment agreeably to that decision.
    When this action was tried it appeared that the defendants had brought an action to foreclose the mortgage assigned to them and that the plaintiff here was not made a party defendant to that action ; that it had proceeded to judgment and a sale had been had of all lands affected by it excepting those covered by the plaintiff’s mortgage, which were as yet unsold, and that the guaranty had not been enforced. It also appeared that the guaranty was good and collectible.
    It was claimed by the plaintiff that after the entry of the judgments in this action and without making the plaintiff a party to the other suit, the real estate covered by the plaintiff’s mortgage was sold for the nominal price of fifty dollars to James P. IT. Ramsdell, a son of the surviving partner of the firm of Ramsdell & Co., and thereafter the surviving partner and the executors of the deceased partner, in satisfaction of the contract of guaranty given by that firm; paid to the defendants Mackin, and Yerplank, trustees, the balance unpaid on the bond and mortgage assigned to the trustees, and those instruments, with the assignment and guaranty, were surrendered to them or their attorney.

      When the judgment was modified, therefore, Maekin and Yer-plank held neither the bond, mortgage nor guaranty, all having been restored to Ramsdell & Co. The plaintiff complied with the requirements of the judgment as modified, tendered the amount due to Maekin and Yerplank for principal, interest and costs, and demanded the bond, mortgage and assignment of the guaranty. The tender and transfer were refused, and the refusal put upon the ground that Maekin and Yerplank had been paid the money due on the guaranty and had surrendered the bond, mortgage and guaranty to the guarantors Whereupon a motion was made herein to set aside the judgment already entered, as the same had been modified, to amend the summons so as to bring in all the parties who have acquired interests growing out of the transactions which took place subsequent to the trial, and to file and serve a supplemental complaint in this action setting up the facts connected with those transactions, which motion was granted.

      E. A. Brewster, for the apnellants.

      Henry Bacon, for the respondent.
   Dykman, J.:

The principal object of this action was to foreclose the mortgage of the plaintiff and obtain the money secured thereby, by a sale of the mortgaged premises; as auxiliary relief, however, the plaintiff sought to procure the cancellation of the satisfaction of another mortgage on the same premises, held by the defendants Maekin and Yerplank. They defended the action and claimed priority for the-mortgage they held. The Special Term, on the trial of the action, decided in favor of the validity of the plaintiff’s mortgage, but decided that the mortgage held by Maekin and Yerplank was in their hands a lien prior to that of the plaintiff’s mortgage, and that the plaintiff was not entitled to subrogation to their rights under their mortgage and the guaranty of payment held by them from Ramsdell & Company.

That judgment was affirmed by the General Term, but on appeal to the Court of Appeals that court modified the judgment so as to subrogate the plaintiff to all the rights of Maekin and Yerplank, under their assignment of the mortgage held by them and the guarantee therein contained, on payment to them of the amount due-for principal, interest and costs, the Supreme Court having denied the plaintiff such right of substitution.

This judgment was made the judgment of the Supreme Court according to the law and practice, and now the plaintiff has obtained the order of the Special Term setting aside and vacating the judgment so modified and entered on the remittitur from the Court of Appeals, and granting leave to the plaintiff to file and serve a supplemental complaint.

From this order there is an appeal which presents a very serious obstacle in the way of the plaintiff. It has been seen by the statement already made that the judgment of the Supreme Court was not entirely reversed, but only that portion of it which denied to the plaintiff substitution to the place and rights of Mackin and Yerplank. The Court of Appeals held and decided that as to them the plaintiff was a junior incumbrancer and possessed all the rights incident to that relation; that she was entitled to the securities of the senior incumbrancer, and should be permitted to redeem the mortgage and acquire all the rights of the holders. The law of the case, therefore, is settled by the Court of Appeals and cannot be unfixed by any action of this court. The Supreme Court is without power to reverse the judgment of the Court of Appeals. Neither can it nullify the decisions of that court by setting aside its judgments entered on its remittitur in the Supreme Court. Because, if that could be done, then the Supreme Court would be in possession of the power to control all the judgments and decisions of the Court of Appeals. For this, of course, the respondent does’ not contend, and yet the argument put forward in her behalf, if followed to its logical conclusion, leads to that result. Doubtless the judgments of the Court of Appeals, after they become the judgments of the Supreme Court, may be opened and modified by this court in furtherance of justice in many ways, but they cannot be swept entirely aside.

The order appealed from therefore proceeds too far, and further than the necessities of the plaintiff require. She cannot litigate again the questions settled by the Court of Appeals in this action, and this court cannot place her in a position to do so by setting-aside the judgment of that court. The decision of that court would prevail even, if tbe record of its judgment was vacated. Tbe necessities of tbe plaintiff will be supplied by permission to file and serve her supplemental complaint, setting forth tbe. facts that have transpired subsequent to tbe filing of tbe original. Then she will be in a position to present all tbe new questions that have arisen and reap all tbe benefits of tbe decision of tbe Court of Appeals in lier favor.

The order appealed from should be reversed, so far as it vacates and sets aside tbe judgment in this action, and that part of tbe motion should be denied, and affirmed so far as it grants permission to file and serve a supplemental complaint, without costs of this appeal to either party.

Barnard, P. J., and Pratt, J., concurred.

Order modified by reversing that part of order which sets aside the judgment in this action, and affirmed so far as it permits tbe filing and serving of a supplemental complaint.


author: DykMAN, J.:

text:
    THE COMMISSIONERS OF CHARITIES AND CORRECTIONS OF THE COUNTY OF KINGS, Respondents, v. PATRICK C. O’ROURK, Appellant, Impleaded with PETER O’ROURK.

      Undertaking given on the conviction of a husband for abandoning his wife in Kings county— 1871, chap. 395 — a surety thereto cannot deny that the complainant was the principal’s wife.

    This action was brought upon an undertaking given by tbe defendants, under chapter 395 of 1871, relating to proceedings against husbands who abandon their wives in Bangs county. The undertaking recited the conviction of the principal of abandoning his wife; that he had been required by the sentence to give security for the payment of four dollars a week for the support of his wife, and it was conditioned for the payment of that sum for the term of one year.
    An action, brought upon the undertaking after a failure of the husband to comply therewith, was defended by the surety upon the ground that the woman who made the complaint, and for whose benefit the money was directed to be paid, was not the wife of the principal.

      Held, that the surety was estopped, by having signed the undertaking, from inter* posing that defense.

      Duffy v. The People (6 Hill, 75) distinguished.

      Appeal from a judgment in favor of tbe plaintiffs, entered upon the trial of this action by the court without a jury.

      Thomas J. L. MoMamus, for the appellant.

      A. Simis, for the respondents.
   DykMAN, J.:

The foundation of this action is an undertaking executed by the defendants in pursuance of the provisions of chapter 395 of the Laws of 1871, relating to proceedings against men who have abandoned their wives in the county of Kings. By the terms of the bond the defendants acknowledge that the principal owes the people of the State of New York the sum of $300. Then follows a recital that whereas the above bounden, Peter O’Rourk, was duly convicted by a police justice of the criminal offense of having on the 14th day of July, 1883, at the city of Brooklyn, abandoned his wife without adequate support, and neglected to provide for her according to his means, with which offense he was charged upon the oath of Lizzie O’Rourk, and upon such conviction, in addition to the sentence passed, was required by said police justice to give security in the sum of $300 to be of good behavior, and to pay the sum of four dollars weekly for the support of his said wife to the Commissioners of Charities and Corrections of the county of Kings for the term of one year from the date. The condition is that if. the named Peter O’Rourk shall be of good behavior towards the people of the State of New York for the term of one year, and pay the sum of four dollars weekly for the support of his said wife to the Commissioners of Charities and Corrections of the county of Kings for the term of one year from the date thereof, which was the 6th day of September, 1883, then the instrument was to be void, otherwise of force. The breach alleged against the defendant is the failure to pay the money. The defense set up is that the conviction recited was for the abandonment by the principle defendant of his wife Lizzie O’Rourk, and his failure to support her, and that the bond was given to relieve the county of Kings from the support of Lizzie O’Rourk as a pauper, and to compel Peter O’Rourk to support hex*. It is then alleged that Lizzie O’Rourk was not the wife of Peter O’Rourk. The answer is by the surety, who alone defends tbe action. When the parties came to the tria1, therefore, the only testimony requisite on the part of the plaintiffs was proof of the execution of the bond, and the breach of the condition by a failure to pay the money in accordance therewith. In relation to these-facts there was no dispute, and then it was admitted that the defendant named in the record of conviction and one Catherine Gough was married on the 15th day of April, 1880; that they were both living and have not been divorced; that a marriage ceremony was performed between the same defendant and Lizzie Fitzgerald, June-21, 1883, and that the proceedings against the defendant, resulting in his conviction, and the undertaking in question were for abandoning and failing'to support this same Lizzie Fitzgerald as his wife. Then it was the claim of the answering defendant, as it is now on appeal, that he can litigate again in this action the liability of his principal to support the woman who instituted the' proceedings eventuating in the conviction and the bond in suit. This was ruled against him on the trial and must be so ruled here. He says himself in his answer, that this same woman instituted the original proceedings charging that she was the wife of his principal; that he had abandoned her, and that he was convicted of such abandonment, and the bond in suit was given to relieve the county from supporting the woman as a pauper and to compel the principal to support her, as he was compelled by law to do, as his wife. Thus-showing, himself, a submission to the conviction as legal, and the execution of a bond as a security for the performance and fulfillment of tbe adjudication. What is now proposed might have been shown on the trial in the original proceedings and might have constituted a complete defense therein, and the fair presumption is either that such matter was not. offered there, or was offered and rejected, and the defendant acquiesced and gave the bond in suit. In either case he is concluded. The judgment of conviction must be deemed conclusive and the defendant cannot plead the invalidity of the bond. (Embury v. Conner, 3 N. Y., 511; Fay v. Ames, 44 Barb., 327; Westervelt v. Smith, 2 Duer, 449.) This statute is not like the provision of the Revised Statutes which makes a man who neglects to support his wife, a disorderly person, because on a conviction under that statute the defendant is required to find surety that he will be of good behavior for one year and the committing of any of the acts which constitute the person so bound a disorderly person is made a breacli of the condition. So that, in an action for the enforcement of such a bond, proof would be necessary that the defendant had committed some of the acts which constituted him a disorderly person under the original proceedings; and then as the abandonment of his wife would constitute an essential element in' such proof the defendant might show that he had no wife to .abandon. His conviction under the first proceedings would not be evidence, if subsequent conduct constituted him a disorderly person, and so would not conclude him on the second trial. Duffy v. The People (6 Hill, 75) is an authority for such a case and has no appli•cation here. The action is properly prosecuted in the name of the present plaintiffs, because by virtue of the Laws of 1880 (chap. 284) they succeeded to the power conferred on the superintendents of the poor by chapter 395 of the Laws of 1871.

There is no error in the record and the judgment should be .affirmed, with costs.

BaRNAed, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    THEODORE BRINKERHOOF and Others, Appellants, v. HENRY BOSTWICK and Others, Respondents.

      Statute of limitations — an action against the directors of a banking association for negligence must be brought within three years — Gode of Civil Procedure, seas. 894, 414 — the commencement of the action by one stockholder does not stop the running of the statute against others who subsequently join as plaintiffs.

    This action was brought by stockholders of an insolvent national bank, against the directors thereof, to recover damages occasioned by the negligent and wrongful acts of the defendants, whereby the stock of the plaintiffs was lost, and assessments were levied upon it which they were compelled to pay. The action was commenced by one of the stockholders, on his own behalf and for the benefit of such others as might join therein, on January 10, 1880. All the negligent acts of the defendants were committed between 1871 and 1876.
    Eeld, that the action was brought against the directors of a banking association “to enforce a liability created by law; ” that it was governed by the limitation prescribed in section 394 of the Code of Civil Procedure and must, therefore, be brought within three years after the cause of action accrued.

      That although the plaintiffs’ cause of action existed prior to the adoption of the Code of Civil Procedure, yet as he had failed to commence his action before the expiration of two years from the time the said Code took effect, as provided in section 414 thereof, it was governed by the limitation prescribed' in the said section (394) and was barred thereby.
    That the right of action accrued at the time of the commission of the wrongful acts, and not at the time at which the assessments were levied or paid or the damages actually sustained.
    After the commencement of the action, and on January 27, 1883, eight other stockholders were permitted to unite as plaintiffs.

      Held, that in so far as related to the defense of the statute of limitations the action was, as to the said additional stockholders, to be deemed as commenced at the time they were made plaintiffs, and that the commencement of the action by the original plaintiffs neither arrested nor delayed the running of the statute for them.
    Appeal from a judgment in favor of tbe defendants, entered upon a nonsuit directed at tbe circuit.

      O. D. M. Balter, for tbe appellants.

      G. Wheaton, Jl. A. Fowler and Samuel Hand, for tbe respondents.
   Dykman, J.:

Tbis action is brought by stockholders of the National Bank of Fishkill against the directors of that bank for the recovery of ■damages, sustained by the loss of their stock and an assessment thereon besides, resulting from the negbgence of the defendants. the answer denied the negligence, and set up the six years’ and the three years’ statute of limitation as a bar. The action was commenced on the 10th day of January, 1880, by.Theodore Brinkerhoof, who sued on bis own behalf and for the benefit of all other stockholders of the bank, and it was continued so until January 27, 18-83, when, on the petition of eight of the stockholders of the bank, an order was entered permitting them to unite as plaintiffs as of the date of that order. the amended complaint, with the additional plaintiffs, was served February 5, 1883, and the answer to tbis also denied negligence and set up the same statutes of limitation as a bar. On the trial the plaintiffs offered evidence tending to estabbsb the eause of action alleged in the complaint against the defendants for losses arising from transactions between the years 1871 and December 31, 1876. the defendant objected to such testimony, on the theory that the action cannot be maintained for transactions resulting in loss more than three years prior to its commencement. This objection was sustained by a decision that the action was subject to the limitation statute of three years. The counsel for the plaintiffs thereupon stated to the court that they could offer no evidence of transactions by the defendants tending to establish the cause of action set out in the complaint which had not been completed at some time between the year 1871 and December 31,1876. They requested permission to present proof of transactions between those dates and to go to the jury thereon, which was refused, and they excepted to the decision and rested their case. Thereupon the court granted a motion to dismiss the complaint on the ground that the three years’ statute of limitations applied to the case, and the plaintiffs excepted. So we have presented the only question for consideration, but it is well enough to say, in passing to the main question, that the eight additional plaintiffs who came in on the 5th day of February, 1883, are beyond the six years’ statute of limitations, and left without a remedy. The commencement of the action by Brinkerhoof neither arrested nor delayed the running of the statute for them. It simply left an opening for them to corne in and be made parties, as they did. But if they remained inactive until their remedy expired and was lost by lapse of time, it was not saved by the original commencement of the action. (Cunningham v. Pell, 6 Paige, 655.) The statute of limitations was applied to this case at the trial, on the theory that no malconduct could be established against the defendants within three years before the action was commenced, and that disposition of the case proceeded on the admission of the plaintiffs’ counsel to that effect. We must, therefore, see if the application of the three years’ statute of limitations was justified. It occurs in a chapter of the Code devoted to the limitation of the time of enforcing a civil remedy, and its language is this: “This chapter does mot affect an action against a director or stockholder of a moneyed corporation or banking association to recover a penalty or forfeiture imposed, or to enforce a liability created by law, but such an action must be brought within three years after the cause of action has accrued.” (Code, § 394.) The chapter intended here was chapter 4 of the Code; commencing with section 362 and down to section 393, the limitation for all actions bad been specifically prescribed. Then was inserted this section 394, with a broad opening that the chapter does not affect an action against a director of a moneyed corporation to enforce a liability created by law, thus removing such an action from the operation of every other provision for limitation, and then declaring that it most be brought within three years after the cause of action has accrued. The language employed is so broad and so plain and so comprehensive that there is left no room or occasion for construction or doubt. It has plain application to all actions brought to enforce a legal liability or liability created by law coming within its scope and operation. To limit the application of this section to actions for liabilities created by the statutes of this State, against directors of moneyed corporations, organized under a State law, would' be placing a restriction on the statute unintended by the legislature. If such had been the legislative intention, nothing was easier than to give it appropriate expression. Instead of doing that» a breadth of language is employed sufficient to comprehend all actions for liabilities created or imposed by law. The liability of directors of corporations for violations of duty exists independently of any statute, and so, in a comprehensive view, it is created by law, and falls within the intention and operation of this section of the Code. They are the agents of the corporation, and if they transcend their power or abuse their trust, their liability rests on the same principle that imposes liability on the agents of individuals. The plaintiffs also contend that they had no right of action against the defendants until the refusal of the receiver to sue, and, therefore, the statute of limitation did not commence running against them until that time; but the argument is faulty. In the first place, it is incorrect to say the plaintiffs had no right of action against the defendants before the refusal of the receiver to prosecute. The right of action accrued with the perpetration of the wrongs by the defendants, and was never suspended. The plaintiffs were under no disability, for while the right to commence an action .of this character is generally vested primarily in the corporation while it remains in the exercise of its corporate functions, yet even that right did not exist here, because the corporation was still under the control of the parties against whom the misconduct was alleged and the recovery was sought. The receiver was in the same predica/ ment, for be was a blameful director. So much was decided by the Court of Appeals wben this case was there, and on that very doctrine the action was permitted to proceed in the name of tire' stockholders. These considerations, however, affect only the question of parties to the suit, while the subject of the action remains the same. The cause of action is the negligence and misconduct of the defendants, and that is complete when the violation of duty is brought to a consummation, and it must follow that the statute of limitations is running for a bar to the action from that time. It is further contended that the statute was not set running until the assessment against the plaintiffs was made and paid. Let us see. That assessment was the result of the defendants’ negligence and misconduct, which is the sole and only cause of action set out in the complaint. There is no claim to recover for money paid out, but for damages sustained. The negligence of the defendants is alleged as the procuring cause of the damages sustained, a portion of such damages consisting of the assessment on the plaintiffs’ stock. The liability to this assessment was created by the malfeasance of the defendants, all of which was executed prior to January 9,1817. The wrougful acts complained of constituted the cause of action and not the effect it produced, nor the damage it occasioned, and the statute runs from the accruing of the cause of action. It still remains to examine a question presented by the appeal, whether section 394 of the Code of Procedure applies to the case. That section became a law on the 1st day of September, 1877, and the cause of action set forth in the complaint accrued against the defendants before January 9, 1877. Did the provision of this section 394 extend to this case, where the right of action h$d already accrued when it became a law ? The general rule for the construction of statutes is that they must be assumed to operate prospectively, and they are never to have retroactive effect, unless the manifest intention of the law itself requires it. Nothing in the language of the section of the Cod.e now under consideration requires the application of any other rule. Like all the provisions in the old Code of Procedure, it is made prospective. The first Code of Procedure relieved causes of action already accrued from the operation of the statute of limitations therein contained, and all the subsequent amendments of that statute have received from the courts a construction which has given them a similar operation. Carpenter v. Shimer (24 Hun, 464) was an action to recover for personal injuries. The cause of. action accrued in June, 1874, and the action was commenced in April, 1877. In May, 1876, the time of limitation for the commencement of such an action was reduced to one year*, by an amendment to the Code, and it was held that the amendatory statute operated prospectively only, and did not affect a cause of action .existing at the time of its passage. This decision received the approval of the Court of Appeals, in the case of Goillotel v. The Mayor (87 N. Y., 441), where a similar decision was made by the Court of Appeals. It is true these decisions have reference to an amendment of the old Code, while the statute before us is contained in the Code of Civil Procedure, which is a new law, yet it must be borne in mind that the question is whether it is to have a retroactive effect, and the rule of interpretation is the same whether the statute is enacted independently or as an amendment to an existing law. In view, therefore, of the general rule of construction and the authorities referred to we cannot resist the conclusion that the section under consideration is capable of a construction that will give it a prospective operation, and is incapable of any other. It furnishes a rule for future action in eases arising subsequent to its enactment. This view of the section would rescue the case from its operation and leave the former statute applicable, except for section 414, which now requires examination. So far as the same has relation to this action it enacts that the provisions of chapter 4, in which, as we have seen, section 394 occurs, apply and constitute the only rule of limitation applicable to a civil action, except in a case “in which a person is entitled when this act takes effect to commence an action,” * * * “ where he commences, institutes or otherwise resorts to the same before the expiration of two years after this act takes effect; in either of which cases the provisions of law applicable thereto immediately before this act takes effect continue to be so applicable notwithstanding the repeal thereof.” This section of the Code provides exemption for all causes of action existing at the time of its adoption from the system of limitations provided by chapter 4, and furnishes a short statute of limitations of two years for the control of actions commenced thereon. It applies to all causes of action accrued at that time, and limits tbe right to all remedies thereon unless pursued within two years. It was designed to have retroaction, and as it affords a reasonable time and opportunity for the assertion of all legal rights then existing, it was within the competence of the legislature tc make it. There is no vested right in any particular remedy. The legislature may abolish old remedies and substitute new at its will so long as reasonable legal means is left to enforce a right or redress a wrong. The cause of action asserted by these plaintiffs occurred previous to January 9, 1877, and so was in existence on the 1st day of September, 1877, when this section (414) of the Code became a law. Under it the plaintiffs had two years within which to commence their action, but they did not begin the same until January 10, 1880. They did not institute their action before the expiration of two years after the section took effect, and therefore the provisions of section 390 constitutes the rules of limitation applicable to this action.

This examination leads to the conclusion that the judgment should be affirmed, with costs.

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


author: Dykman, J.: Pratt, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PATRICK H. McGANN, Appellant.

      Constitutional lam — the legislature ma/y prohibit the manufacture or sale of an ajrticle deemed by it to be injurious to public health —1884, chap. 202.
    Section 6 of chapter 202 of 1884, provides that “ no person shall manufacture out of any oleaginous substance or substances, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream of the same, or shall sell, or offer for sale, the same as an article of food.” The act is entitled “An act to prevent deception in sales of dairy products.”

      Held, that the said sixth section prohibited, absolutely, the manufacture and sale, as therein specified, of any article designed to take the place of butter or cheese, without regard to whether or not it was manufactured or sold with an intent to deceive.

      That the legislature had power to pass the act by virtue oí the police power vested in it.
    That the act was constitutional and valid. (Pratt, J., dissenting.)
    Appeal from a judgment of the Court of Special ^Sessions, convicting the defendant of a misdemeanor in having violated the provisions of chapter 202 of the Laws of 188L

      James Troy, for the appellant.

      James W. Ridgway, district attorney, for the respondent.
   Dykman, J.:

The legislature of this State has enacted a law with a title at its head indicative of a purpose to prevent deception in sales of dairy products in this State. (Chap. 202, Laws of 1884-.) Section 6 of this law has in it these words: “No person shall manufacture out of any oleaginous substance or substances, or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream of the same, or shall sell, or offer for sale, the same as an article of food.” Then the same section specifies the punishment for its violation.

This defendant has been convicted of a misdemeanor for violation of this section of the law, on proof, that he manufactures what is called oleomargarine from an oleaginous substance other than that produced from milk or cream, namely, animal oil extracted from the tallow of beef; that this article is manufactured for sale as a substitute for butter; that it resembles butter so much in appearance and taste that it might be taken for butter by any ordinary person, and that it was designed by the defendant to take the place -of butter as an article of food and a substitute therefor. He, however, manufactures it as and calls it oleomargarine, and does not pretend or represent that it is butter, but states expressly that it is oleomargarine and not butter, and that it is designed and intended as a substitute therefor; that he has sold about eight pounds of this .article as oleomargarine with the design that it should be used for food as a substitute for butter, and that the purchaser knew how it was made and of what.it was composed and bought it for use as an article of food in the place of butter.

From such conviction the defendant has appealed to this court, on the theory that the section under which his condemnation was secured was intended only to apply to a case of deception in the manufacture and sale of the article specified. The language employed, however, will not admit of that mild interpretation. It prohibits both the manufacture out of any oleaginous substance, except that produced from milk or cream, of any article designed to take the place of butter or cheese produced from milk or cream, and also the sale, or offer for sale, of the same as an article of food. The prohibition, so far as it extends, is absolute, and if the legislature possessed the power to make the law it must be respected and enforced.

Tinder the American system of government the uncontrolled power of legislation resides in the people themselves as an aggregate body politic. On the separation of the colonies from the mother country all sovereignty and supremacy devolved upon the people in undiminished plenitude. But they do not exercise sovereign power directly. In the first 'place all the people of all the States' established the general government by the adoption of the Constitution of the United States, in which they delegated to the national government certain enumerated powers. Then the people of each State established State governments and invested the same with all the power which they did not expressly withhold; so that the powers of the, general government are definite and restricted, while the powers of the State governments are general and residuary, and all power not conferred on the general government belongs to the State governments or to the people. The State governments exercise all the powers of sovereignty not conferred on the national government, so far as the people permit them to be exercised at all. Without constitutional limitations the power of the legislature to make laws would be absolute, because the lawmaking power is intrusted by the people to the legislative branch of the State government. Whether a statute is constitutional or not is a question of power; and if that question be answered in the affirmative the courts can institute no inquiry into the proper exercise of the power. They must assume that the power and discretion have been judiciously and wisely exercised, and that the legislature had before it, at the time of its action, all requisite evidence to justify the same. But the people have set certain limitations to the lawmaking powers, some of which are expressed and some are implied. One of the express limitations is that no person shall be deprived of life, liberty or property without due process of law. If, therefore,, the law in question falls under the condemnation of .the Constitution it is because it offends against this limitation of legislative power.

This constitutional restriction has received exhaustive examination in our Court of Appeals in the cases of Wynehamer v. The People (13 N.Y., 378) and Bertholf v. O’Reilly (74 id., 509); and in both of these cases the conclusion was reached that notwithstanding such restriction the legislative power extends to entire prohibition of the traffic in spirituous liquors. This doctrine proceeds on the theory that the legislature may prohibit and suppress any traffic injurious or demoralizing either to the public health or public morals, or in its tendencies or consequences, and that the conclusion and decision of the legislature on the question of fact involved is final and conclusive.

The same'doctrine was enunciated by the Supreme Court of the United States in the Slaughter-house cases (16 Wall., 36), where a law of the State of Louisiana, which operated very disastrously on large business interests and materially impaired the value of private property, was held constitutional and valid. These cases are sufficient to sustain the constitutionality of the law under consideration. It may well be that such legislation requires the highest reason for its justification, but it is not the province of the courts to inquire into their existence. Complaints against such enactments must be carried to the legislature and not to the courts.

It must be assumed in the consideration of this statute that the legislature ascertained that the use of this prohibited article was injurious and detrimental to the public, and so found it necessary to advance in respect to the same, beyond the point of regulation, to-actual prohibition. The presumption is that such legislative action was deemed necessary for the welfare of the public and it cannot be abrogated by the courts. With these necessary assumptions this law falls easily within the police power of the State, which is a power vested in the legislature to ordain such laws and ordinances-as shall be deemed essential and necessary for the welfare, health and property of the public. The underlying foundation of the power is the principle that all property must be so used that it shall not become injurious to others. All reasonable restraints may be imposed for the attainment of this end which may be deemed necessary by the law-making power, even though they amount to absolute prohibition, and the propriety of such restrictions is a legislative •question entirely free from all judicial control. The enactment of ■this law in question was, therefore, within the scope of legislative power as the same has been delegated to the senate and assembly by fhe people of the State in the fundamental law. It prohibits the manufacture and sale of oleomargarine as an article of food in place ■of butter, and the defendant has been convicted of a violation of its provisions, and in our view the conviction must be affirmed.

Barnard, P. J., concurred.

Pratt, J.

(dissenting):

I am constrained to dissent from the views of a majority of the •court in this case upon the following grounds: If section 6 of the act under which the defendant was convicted is to be construed as an absolute prohibition of the manufacture of pure and wholesome oleomargarine, unconnected with any design to deceive the public or simulate dairy butter, it is unconstitutional as being within the prohibition of article 1, section 6 of the State Constitution.

There are certain well settled principles to be kept in view in considering this class of questions. Before a statute can be annulled by the courts its repugnancy to the Constitution should be clearly demonstrated. Neither can courts sit in review of the discretion of the legislature, or determine the wisdom or propriety of legislative action, and every intendment is in favor of the validity of statutes.

In Bertholf v. O'Reilly (74 N. Y., 516) it was held by the Court of Appeals “ that no law can be pronounced invalid for the reason simply that it violates our notions of justice, is oppressive and unfair in its operation, or because, in the opinion of some or all of the citizens of the State, it is not justified by public necessity or designed to promote the public welfare. We repeat, if it violates no constitutional provision it is valid and must be obeyed.” It is equally well settled •that whether an act is obnoxious to the Constitution is a question for the courts to pass upon, and for that purpose it is competent for the court to look to the circumstances and purpose under which and for which an act is passed. That the Substance from which oleomargarine is made is property cannot be disputed. Neither can it be claimed that this act was passed to protect or preserve the public health, for the reason that it nowhere appears that such was the purpose; and an entirely different purpose does appear in the title. If we are to seek for an expression of the purpose in the act itself, it is plain that its object is to create and protect a monopoly in the manufacture of dairy butter and prevent any successful competition therewith. In this view it deprives the owner of the substance from which oleomargarine is made, of the beneficial enjoyment of his property and the fruits of his lawful labor.

It was held In re Peter Jacob (19 Weekly Dig., 533), that it is not constitutionally competent for the legislature to deprive by any arbitrary enactment a laborer in any lawful vocation of his right of work, and of enjoyment of the fruits of his work, in his residence or in his own way, except for purposes of police or health regulations.

It is true that the statute then under consideration recognized the legality of the labor and only restricted it to certain places, while this prohibits all the labor or manufacture if the article is to be used thereafter as a substitute for butter, but the principle is the same. In both cases the citizen is deprived of the beneficial use of his lawful property.

Until the legislature, in the exercise of its inherent powers to enact police and health laws, prohibits the manufacture of oleomargarine, it seems to me a citizen has a right to make any pure and wholesome article of food and sell it for what it actually is, and it is immaterial what lawful use shall be made of it afterwards. If a man is too poor to buy good butter I see no objection to his using oil, cheese or honey, or any other substitute for butter. A law prohibiting the making of an iron rake to be used as a substitute for one made entirely of wood could be passed with just the same legal effect, as a law providing that oleomargarine should not be made to be used as a substitute for butter. I do not claim that the legislature cannot do all this, but that it can only do it to protect the public health. Assuming even that it may pass such a law, if in the exercise of its discretion it deems it best for the public health, und that the courts cannot review such an exercise of discretion, however unwise it may be, yet this law, however, was not passed under the exercise of any such discretion or for any such purpose, nor can we indulge in the presumption that such was the purpose of the act when we read the title or the act itself.

The whole question as to the constitutionality of this section, therefore, turns upon the point whether the legislature having passed this statute the courts can assume that it was passed for the purpose of protecting the public health. In my view it was not passed for that purpose, and is, therefore, not to be upheld unless another construction can be placed upon it. In the title the legislature announced its purpose to be “ To Prevent Deception in the Sale of Dairy Products.” If the title is to be read in construing the sixth section, then it must be held to relate to and proscribe only deceptive simulations and spurious impositions upon the public, or to an article made with design to deceive the public, and cannot be held to include a wholesome and pure article of food openly and honestly made with a design to sell it for exactly what it is, and without any design to deceive the purchaser.

In the latter view an indispensable element in a conviction would be some intent to deceive, or some act that might operate as an imposition upon the public as a “deception in dairy products.” Merely making pure oleomargarine butter, and exposing it for sale-as such, without any notice or attempt to pass it off as genuine dairy product, would not come within the purview of the statute, the purpose of which is to prevent deceptions. The act in the severity of its penalties, in its casting the burden of proof upon the defendant to rebut a presumption of willful guilt arising from the doing, of any act prohibited therein, may well be held to impose its penalties only when oleomargarine is manufactured for sale, or sold or designed to deceive the public. If the latter is the correct view this conviction cannot be upheld, as no such case was made out.

I have not< examined or cited authorities, as I have assumed the utmost that can be claimed in favor of the absolute power of the legislature. "While the subject is one that has been frequently before the courts and elicited much discussion, it does not seem tome that the present case requires any critical examination to present the legal issues involved. "Whichever construction is placed upon the sixth section of the two herein stated, it is clear the conviction must be set aside.

Judgment of County Court affirming conviction affirmed.


author: Pratt, J.:

text:
    JOHN HINCHLIFFE, Respondent, v. MARGARET SHEA, Appellant.

      Dower — effect of a married woman’s joining in a mortgage with her husband — when it binds herr subsequently rested dower estate.

    March 25, 1878, one Martin Shea and his wife, the defendant, executed a mortgage on certain real estate, then owned in fee by the husband, to secure the payment of a note given by him. April 8,1882. the premises were conveyed to Anne Horgan by the sheriff, in pursuance of a sale had in 1881, under an execution issued upon a judgment against the husband docketed in 1874 The husband died April 8, 1882. April 26,1883, Horgan conveyed the premises to the defendant. ,
    In an action to foreclose the mortgage the judgment directed that the dower interest of the defendant in the real estate, which became vested in her on the death of the husband, should be sold.

      Held, no error.

      Payne v. Becker (87 N. Y., 158) followed
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis action by tbe court without a jury.
    On or about March 25, 1878, tbe firm of Shea & Scbnerr made their promissory note to tbe order of Martin Shea for $3,000, payable in one year from date. Martin Shea indorsed tbe note to Shaw, Hinchliffe & Penrose. At tbis time Martin Shea was seized in fee of tbe premises described in tbe complaint, and as collateral security for tbe payment of above note be executed to Shaw, Hinchliffe & Penrose the. mortgage set forth in tbe complaint. His wife Margaret Shea, tbe appellant, at tbe time bad no interest in tbe premises other than an inchoate right of dower} she joined with her husband in tbe mortgage. On June 8, 1874, a judgment was docketed in tbe office of tbe clerk of Kings county against Martin Shea in favor of P. K. Horgan and another. The premises were, in tbe year 1881, sold under tbe execution issued under tbis judgment, and on April 3, 1882, they were conveyed by tbe sheriff of Kings county to Anne Horgan. Martin Shea died April 8,1882. Anne Horgan, on or about April 26, 1882, conveyed the premises to tbe defendant and appellant Margaret Shea, and she is now in possession under tbe deed from Anne Horgan.
    Tbe facts are not disputed, and tbe only question in tbe case is whether tbe plaintiff, by virtue of tbe mortgage described in tbe complaint, has any lien on the premises. The judge found that the vested dower interest of the defendant was subject to the mortgage, and. a judgment directing the sale of such interest was ordered.

      Francis T. Magill, for the appellant.

      James M. Baldwin, for the respondent.
   Pratt, J.:

It may fairly be argued, since the case of Payne v. Becker (87 N. Y., 153), that the wife’s mortgage conveyed her inchoate right of dower to the mortgagee. If that be so, now that the right has become vested, it may be applied to the payment of the mortgage debt.

We are not disposed to interfere with the judgment below, which must be affirmed, but as the question is new, without costs.

Dtkman, J., concurred; Babnard, P. J., not sitting.

Judgment affirmed, without costs.


text:
    JAMES S. MORTON, Respondent, v. THE METROPOLITAN LIFE INSURANCE COMPANY and THOMAS W. BUTTLE, Appellants.

      Corporation — may be sued for a malicious prosecution.

    An action for malicious prosecution will lie against a corporation.

      Semble, that the corporation would not be liable to such an action by reason of its ratification of an act already completed by its agent.
    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.
    The action was brought to recover damages for an alleged malicious prosecution of the plaintiff by the ’ defendant. The plaintiff had been charged, before a justice of the peace, with having feloniously embezzled money belonging to the defendant.

      William II. Arnoux, for the appellants.

      JB. F. Watson and Hugo^ Hirsh, for the respondent.
   Pratt, J.:

No good reason can be presented why a corporation should not be held liable íd a proper case for malicious prosecution. Actions for libel, for assault and battery and for willful trespasses, in all of which the intent of the mind is an essential element, have been successfully prosecuted against corporations and the recovery upheld by the courts, and no distinction can be máde between the principle which underlies that class of actions and an action for malicious prosecution. No action for malicious prosecution against a corporation has been reported in this State, but elsewhere the courts have sustained them. (Fenton v. Wilson Sewing Machine Co., 9 Phil., 189; Goodspeed v. East Haddam Bank, 22 Conn., 535; Vance v. Erie Railroad Co., 3 Vroom., 334; Boogher v. Life Assn. of America, 42 Am., 413.) We concur in the reasoning and decision of these cases. I think there was no-error in the submission of the ease to the jury. The evidence as to the payment of the counsel's bill for services was not offered to prove a ratification by the corporation of an act already completed by the agent, but was proper to show whether the arrest and prosecution of the plaintiff was the individual act of Buttle, the superintendent, or was an act of the corporation itself. The corporation necessarily acts through some of its officers. Buttle had made the affidavit upon which the warrant was issued, and upon which the plaintiff was arrested. If this was the individual act of Buttle then the company would not have been liable; and it is very doubtful whether any act of the corporation, after the termination of the prosecution, could so far ratify Buttle’s acts as to make the company liable. But if the company had authorized Buttle to prosecute the plaintiff, or after the arrest had been made, they became parties to the' action, and continued or assented in the prosecution, they would be liable for their own acts, and the evidence, whether the counsel who conducted the case before the magistrate was employed by Buttle or by the company, was a very important fact for the jury .to know. The charge of the court was clear upon this branch of the case, and is not susceptible of the construction given it by the counsel for the appellant.. It was, iu substance, that if the jury should find that the corporation was connected with the action of its officers by the payment of the expenses incurred in this prosecution, or if they approve of the prosecution and devolved that duty upon its officers,” then if the other elements of the case were made out the corporation might be held liable. It is impossible to understand this language as meaning that the company could make itself liable by a ratification' subsequent to the termination of the criminal prosecution.

The question of the advice of the counsel was properly left to the jury. It was for them to determine, in considering the question of probable cause, whether the advice was sought in good faith. It .appeared from plaintiffs testimony that he had informed, Buttle .and the president of the company that the money, which it was plain he had embezzled, had not been paid to him by the sub-agents, but had been deposited with him temporarily for safe keeping. If this was true it was a good defense to the charge. Buttle denied that such a statement was made to him, and it was not communicated by Buttle to his counsel. Whether the plaintiff’s story was true or not, and if it'was true, whether Buttle acted in good faith in stating the case to his counsel or not, were facts properly left to the determination of the jury. The question was not presented in such a shape that the court could have ruled upon it as a question of law.

The exception to that part of the charge which stated that the plaintiff would be entitled to recover at least nominal damages, unless the defendant proved the truth of the whole charge is not well taken. The exceptions and argument of counsel upon it wholly ignore that part of the charge relating to the defense of probable cause; the jury were instructed that if they should find that the prosecution of the plaintiff was authorized by the corporation and that it had failed, they should then consider the question of probable cause. Upon this branch of the case they were to determine whether the charge of embezzlement was true. If it was, then there was an end of the case; the verdict was to be for the defendant. If true in part only, then plaintiff might recover nominal damages, but if they should determine that the charge was not true the plaintiff was not necessarily to have a verdict. They were .tiien to consider whether the defendant had probable cause to believe the charge true, and if they had, then the verdict was to be for the defendant. The question of probable cause was very fully explained and illustrated to the jury. The exception is taken to an isolated part,of the charge, which, if it stood alone, would doubtless be susceptible to the criticism made upon it, but in the connection it was stated it was not misleading and constituted no ground for ■error.

The rule of damages was properly stated, and we find no ground for reversing the judgment in any of the exceptions taken to the ■rulings upon the admission of evidence.

The judgment should be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., dissented.

Judgment and order denying new trial affirmed, with costs.


author: Brown, J.:

text:
    In the Matter of the Application of the E. M. BOYNTON SAW AND FILE COMPANY, of Brooklyn, for Voluntary Dissolution.

      Voluntary dissolution of a corporation — Oode of Oivil Procedure, cha/p. 17, tit. 11 — a receiver cannot be appointed, until the entry of the final order of dissolution — Gode of Civil Procedure, sea. 2426 — the report of the referee must contain the statement . required by it.

    In proceedings instituted under chapter 17 of title 11 of the Code of Civil Procedure, to procure the voluntary dissolution of a corporation, the power to' appoint a receiver can only he exercised by the court upon granting the final order for the dissolution of the corporation; it has no power to appoint a temporary receiver of its property, or to enjoin the bringing of suits against it prior to the entry of that order.
    The failure of a referee, before whom a hearing is had, as provided in section 2426 of the Code of Civil Procedure, to make in his report a statement of the effects, credits and other property, and of the debts and other engagements'of the corporation, and of all other matters pertaining to its afEairs, is fatal to the validity of the proceedings and renders an order dissolving the corporation, entered upon such defective report, void.

      Pyrolusite Manganese Company (29 Hun, 429) followed.
    Appeals from an order made at a Special Term in this matter ■dissolving the above named corporation, appointing the temporary receiver a permanent receiver of it, and denying a motion made by tbe City Bank, a creditor, and others for the removal of the temporary receiver
    On the 2Yth October, 1883, a majority of the trustees of the E. M. Boynton Saw and File Company, verified a petition to the Supreme Court, under section 2419 of the Code, asking for its dissolution upon the ground that it was insolvent, and that such course was imperative, and beneficial to the interests of the stockholders. On the 29th October, 1883, this petition, together with an affidavit made by a majority of the trustees and certain stockholders of the corporation, was pi’esented to the Special Term, and upon them Mr. Justice Cullen issued two orders to show cause, one why the corporation should not be dissolved, returnable February 15, 1884, and the other why a receiver should not be appointed to preserve the property, pending a final order for its dissolution and a distribution of its assets. On the 2d November, 1883, an order was duly entered appointing Wallace P. Groom as such receiver to take, keep and preserve the property of the corporation, and this appointment was made upon the joint request of the trustees and a majority of the creditors, in amount. On the 5th November, 1883, the receiver’s bond was duly approved and filed and he entered upon the discharge of his duties. Subsequent to this date the appellants herein, the City Bank, Charles E. Bishop and the Waterbury Manufacturing Company, obtained judgment against the corporation and issued execution to the sheriff. On the 15th February, 1884, the' date at which the order to show cause was returnable at Special Term, the hearing was adjourned. The motion of the appellants to vacate the order appointing the temporary receiver was made April 24, 1884. On the 24th April, 1884, a reference was ordered to take proof of the matters alleged in the petition. On the 30th day of June, 1884, the decision of the Special Term was rendered and a final order entered dissolving the corporation and continuing the temporary, as permanent receiver, and also denying the motion to vacate the order appointing the temporary receiver.

      John B. Whiting, for the National City Bank, appellant.

      Chas. E. Chase, for Frederick W. Gade, a stockholder, appellant.

      Charles H. lusoomb, for the petitioners, respondents.
   Brown, J.:

This is a purely statutory proceeding and the court had no power or authority to act, except as such power is conferred by the statute. The authority for the appointment of a receiver is given by section 2429 of the Code, and this can only be exercised upon granting the final order dissolving the corporation. There was no power in the court, therefore, to appoint a temporary receiver, and the order of N ovember 2,1883, was void. This view of the statute is in harmony with the decision of the courts. (Matter of French Mfg. Co., 12 Hun, 488; Chamberlain v. Rochester S. P. V. Co., 7 id., 557; In re Open Board of Brokers, 3 Monthly L. B., 57.) The statute does not give the court control over the corporate property until the decision is made upon return to the order to show cause. If such control had been given, there would doubtless be, as an incident to such control, authority to restrain creditors from suing the company and to prevent any interference by creditors with the corporate assets. (Phœnix Foundry Co. v. N. R. Cons. Co. [4th Dept.], 19 W. D., 439.) But in the case of In re Waterbury Trustees of The Eagle Iron Works [8 Paige, 380), the chancellor held that an injunction would not be granted in such a proceeding as the one we are considering. and said: The statute “has not given to this court any control over the property until the coming in of the master’s report and the dissolution of the corporation.” He pointed out the difference between a proceeding for a voluntary dissolution of the corporation and proceedings against corporations in equity, and held that in the former case creditors who, by their diligence, obtained a lien upon the corporate property, could not be deprived of the preference they had acquired; while in the latter case the court might interfere by injunction to restrain the creditors’ proceedings. I think, therefore, the order appointing the temporary receiver was void and should have been vacated.

Another point is made by the appellant which, I think, is fatal to the proceedings. Upon the hearing upon the order to show cause, the court referred the matter to a referee “ to take proof of the insolvency of the corporation, and all matters relating thereto.” This the court had power to do, and the Code provides (§ 2426) that the report of the referee, or decision of the court, “ must contain a statement of the effects, credits and other property, and of the debts and other engagements of the corporation and of other matters pertaining to its affairs.” The referee returned the testimony to the court, but made no report upon any of the matters mentioned in the statute, and there does not appear in the appeal papers to have been any decision of the court except that contained in the final order. . This, however, makes no mention of the matters required by the statute.

In the case of the Pyrolusite Manganese Company (29 Hun, 429) for a voluntary dissolution, a similar defect was held to be fatal to the proceeding. The requirement of the Code was one of substance and not of form, and a failure to comply with it renders the final order void.

The order appealed from must, therefore, be reversed, with costs, and the proceedings remitted to the Special Term to proceed anew upon the referee’s report in the manner required by the statute.

Barnard, P. J., and Dykman, J., concurred.

Order dissolving corporation and order denying motion to vacate order appointing temporary receiver reversed, with costs, and proceedings remitted to Special Term to proceed anew on referee’s report.


author: Davis, P. J.:

text:
    RUTH A. POST, Respondent, v. JOHN C. STOCKWELL, Appellant.

      Irregularity in the form of a verdict — whenthe erroneous portion should he disregarded k . and a proper judgment entered.

    Where, in an action to recover damages for personal injuries alleged to have been occasioned by the negligence of two defendants, the jury rendered a verdict in favor of the plaintiff for $750, and directed this amount to be divided equally betwoen the two defendants, that is, the sum of $375 against each, the direction for a division of the damages should be disregarded and a judgment should be entered against both defendants for the full amount of the damages awarded.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict óf a jury.
    This action was brought against the above named defendant and one Alfred J. Eisher to recover for injuries alleged to have been sustained by the plaintiff by the falling upon her of a bag of paper thrown through a hatchway of the premises No. 21 Yesey street, New York, by a servant of'the defendant Eisher, who then occupied the premises, which injury was alleged to have been caused by the negligence of Charles Donohue, a servant of Eisher and one Erederick Muller, who was alleged to be at the time a servant of the defendant Stockwell.

      J. E. Luddon, for the appellant.

      W. W. Badger, for the respondent.
   Davis, P. J.:

This action was brought originally against John C. Stockwell, the present appellant, and one Alfred J. Fisher, to recover damages for an injury alleged to have been sustained by the plaintiff by the negligence of the defendant’s servants. Pending the action and before trial the defendant, Alfred J. Fisher, died, and an order was made continuing the action against Mary F. Fisher as administratrix. On the trial, a verdict was rendered by the jury in favor of the plaintiff for the sum of $750, to be divided equally between the defendants, that is $375 against each of them.” Upon this verdict, judgment was entered that the plaintiff recover of the defendant John O. Stockwell the sum of $375 with $165.17 costs, amounting together to $540.17, as a several judgment against him, and that she have execution therefor, and that the plaintiff recover of the defendant Mary F. Fisher, as administratrix of the estate of Alfred J. Fisher, deceased, the additional sum of $375 with $138.75 costs, amounting together to $513.75, as a several judgment against her, and that the plaintiff have execution therefor. From this judgment, the defendant Stockwell alone appeals.

The point is made that the receiving of the verdict in the form in which it was rendered was a, mistrial and that the judgment should be reversed and a new trial ordered for that reason. The receiving of the verdict was not, however, a mistrial. According to the authorities the verdict was a valid one, but the judgment entered upon it was erroneous in form. -The action is upon a joint liability, and the jury, by their verdict, assessed the plaintiff’s damages at $750, which sum they proceeded to divide equally between the two defendants. This division should have been disregarded and judgment entered for the entire amount of the damages assessed.

In Halsey v. Woodruff (9 Pick., 555), it was “held that where a j ury in an action of trespass assessed several damages, the plaintiff may enter a remittitur as to the lesser damages, and take judgment against all who are guilty of the joint wrong for the greater damages. In such a case as this the verdict of necessity finds that both the defendants are guilty of the joint wrong, and it ascertains the whole amount of the damages for that wrong and tindertakes to distribute such damages between the defendants. It is a well establisted rule of law where a joint wrong is found to have been committed by all the defendants that all are liable for the damages.

In O'Shea v. Kirker (8 Abb. Pr., 69), in the New York Superior Court this point is distinctly adjudged and the authorities are fully cited and considered by Bosworth, C. J.

In Beal v. Finch (11 N. Y., 128), which was an action for assault and battery, it was said that in such an action the damages are not divisible, and should a jury erroneously assess different amounts, the plaintiff should have judgment against all who are guilty for the largest amount found against any one. In all those cases the verdict was different in form from that rendered in this case; for by this verdict the jury, after finding the defendants guilty of the wrong, assess the whole damages at $750, and then proceed to divide them as on several recoveries,between the two defendants. The assessment ascertains the whole damages the plaintiff is entitled to recover, and, as it is based necessarily upon a finding that the defendants were both guilty of the alleged wrongful negligence by which the plaintiff was injured, there seems to be little room for doubt that the true course would have been to enter judgment against both for the whole amount assessed. It does not follow, we think, that the judgment should be reversed therefore, for the erroneous form in which it was entered, because it can be corrected by a direction either of this court or of the Circuit, making the judgment conform to the established rule in such cases. It is not an error of which the defendant Stockwell, who alone appeals from the judgment, can avail himself to secure a new trial, inasmuch as the judgment against him, so far as damages are concerned, is only for one-half the amount which the plaintiff was entitled to recover upon the verdict.

But we think the appellant is entitled to a new trial upon another ground. The peculiar circumstances of this case leave it quite doubtful whether a joint liability was shown. The negligence of the servant of Fisher in throwing the bags of paper down the scuttle can hardly be attributable to the servant of another party who was on the lower floor simply for the purpose of receiving them. But assuming that-it could be, it was incumbent on the plaintiff to show satisfactorily that the person who was on the lower floor was not only guilty of some negligence, but that he was actually at that time the servant of the appellant. There was evidence tending to show that the appellant directed him to go to the place of business of Fisher to receive the paper, and that evidence tended, prima facie, to establish the relation of master and servant. JSut it was met and overthrown by positive and undisputed evidence that the servant was not at that time in the employment of the appellant. The proof seems to have been clear that the appellant was not then carrying on the business in which the paper was to be used, on his own account, but was himself an employee of Mary B. Stock-well, his wife, who was conducting the business, and in whose employment the servant was who had been directed to receive the paper.

The appellant’s counsel requested the court to charge the jury that, if they believed the testimony of the • appellant and others, showing this condition of things, there could be no recovery against the appellant. This charge was refused and-an exception taken. The evidence was of such a character, we think, that the charge ought to have been given in that form. IJpon the evidence in the case the court, we think, 'should have instructed the jury that the proof was not sufficient to justify a verdict finding that the person sent for the paper and who -received it negligently, as was claimed, was the servant of the appellant. The court was not asked to hold so, as matter of law, but if the instruction in the form requested had been given, it is quite probable that the verdict would have been favorable to the appellant. There seems to have been a palpable error in the result, and the judgment should be reversed, and a new trial granted, with costs to abide the event.

Brady and Daniels, J. J., concurred.

judgment reversed, new trial granted, costs to abide event.