text:
    Robert W. Evans, App’lt, v. Board of Street Commissioners of the City of Hudson, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Injunction—Removal op trees.
    An injunction will not lie against the threatened removal of trees, growing in the streets, by the boavl of street commissioners of the city of Hudson, where such board is proceeding without having first determined that the trees, proposed to be removed, are detrimental or interfere with, the full and free use of the street.
    Appeal from a judgment entered on a decision, sustaining & demurrer to the complaint.

      Samuel B. Coffin, for app’lt; Duntz & Aldcroftt (Richard B. Aldcroftt, of counsel), for resp’t.
   Mayham, P. J.

—This is an appeal from a judgment entered upon the decision of the special term sustaining the defendant’s demurrer to the plaintiff’s complaint. The action was brought by the plaintiff, who is the owner of land situate on the north side of Warren street, in the city of Hudson, and bounded upon that street.

The complaint alleges : That the defendant, the board of street commissioners of the city of Hudson, was created by chapter 276 of the Laws of 1891, as amended by chapter 697 of the Laws of 1892, and that, prior to the enactment cf chapter 276 of Laws of 1891, the control of the streets of the city of Hudson and the regulation thereof was in the common council. That subdivision 3, § 56, tit. 5. of the charter of the city of Hudson passed May 1, 1872, defined the powers of the common council over the streets of that city as follows :

“The common council has power to require, direct and regulate the planting, rearing, and preserving of ornamental trees in the streets and public grounds of the city.”

And that, pursuant to that authority, it passed the following ordinance, which was in force until superseded by those passed by the defendant:

“ Sec. 15. No person shall put out or plant any shade or ornamental tree otherwise than on the inside of the curbstone of the gutter without the permission of the common council. * * * But if there be no gutter laid, then the street commissioner shall fix the place where they shall be respectively put.”

The complaint also set out the general powers and duties of the street commissioners, among which are the right to sue and be sued, and that they are invested with all the powers and duties of commissioners of highways, of towns, and that they are especially vested by section 8 of chapter 276 of the Laws of 1891 with the following powers and duties:

“ They shall also have power and it shall be their duty to regulate and control the planting and setting out of trees upon the streets and public places of said city, and in case any tree or trees, growing or standing, upon any of the aforesaid highways of the city, become detrimental or destructive to said highways, or interfere with their safe and full use, the board shall have power, and it shall be their duty, to remove or prune the same, having in view at all times the proper maintenance of the same, when not detrimental to such highways, for ornament and shade.”

The complaint alleges that, under section 20 of the last-mentioned act, the defendant was authorized to make all needful rules and regulations for the exercise of the. power conferred upon it, and do whatever the board may deem necessary for the performance of the provisions of that act. The complaint also alleges that., under the power conferred by the last-named section, the defendant, in the year 1893, passed the following ordinance:

“ It shall be lawful for any owner or occupant of premises fronting on any public street or alley ; and upon notice from the board of street commissioners, it shall be his duty to plant shade trees in the sidewalk in front of his premises; such trees, however shall not be placed nearer than one foot from the curbline, nor shall they be placed within a space of six feet along the center of the sidewalk, except by consent of the street commissioners.”

Section 11 of that ordinance provides as follows :

“ All shade trees growing in the sidewalk must be kept trimmed at least twelve feet from the ground.”

The complaint also alleges that in the spring of 1893 the defendant provided by contract for the repaving of Main street; and on the 20th of May of that year, at a special meeting of the board of street commissioners, a resolution was passed requiring the removal of all trees on that street between points named in the resolution, standing between the northerly and southerly curbline of the street, and directing the superintendent of highways to remove the same. The complaint shows that this resolution did not embrace trees standing inside of the curbstone, but that all trees standing between the curblines were removed pursuant to it, and that, subsequent to such removal, certain let owners on that street, pursuant to the ordinance of the defendant, planted and set out trees in the sidewalk, which are still standing and growing where so set out and planted. “Warren street, where plaintiff’s premises are located, runs for about a mile and a half, the length of the city, from'the hill overlooking the river, known as ‘Promenade Hill,’ to Prospect avenue.” Plaintiff's premises are situated on the northerly side of the street, between Fourth and Fifth streets, the house standing about fifteen feet from the street, The street at this point is sixty-six feet in width, and the sidewalk in front of plaintiff’s lot is twelve feet seven inches in width, and at the outer edge thereof, within the sidewalk, stand four elm trees, thrifty and properly trimmed, the largest being about two feet in diameter. They were planted about thirty-five years ago, pursuant to authority, and have ever since been maintained and cared for by the plaintiff and his predecessors in title.

The complaint further alleges, among other things, as follows :

“That the said defendant, at a special meeting held by it in said city, on the 29th day of January, 1894, passed the following resolution: ‘Resolved, that all trees, posts, horseblocks, and other obstructions, between the northerly and southerly lines of Warren street, from Promenade Hill to Seventh street, be removed, and that notice be served upon all persons, corporations, and companies, owning or having charge of said trees, posts and horseblocks, to remove the same in accordance with section 7, chapter 276, of the Laws of 1891 as .amended by chapter 697 of the Laws of 1892, before the first day of March, 1894, also that all wood awnings on Warren street, from Promenade Hill to Seventh street, shall be removed and that the secretary be and he is hereby directed to serve a notice on owners to remove the same. And resolved, that if said trees, posts, horseblocks, and awnings be not removed by the first day of March, 1894, that the same shall be done under the direction of the superintendent of streets.’ That section 7 of said act, in the last-mentioned resolution, does not provide for the removal of trees. That no notice of intention to offer such resolution last mentioned was given at any meeting previous to the special meeting last above mentioned. That no notice of the adoption of that last-mentioned resolution was served on the plaintiff herein. That said Warren street is sixty-six feet in width, and the sidewalk in front of the plaintiff’s premises is twelve feet seven inches in width. That plaintiff’s house stands about fifteen feet from the northerly line of said street. That there are now standing and growing on the outer edge of said sidewalk, in front of plaintiff’s house, four large, thrifty elm trees, the diameter of the largest tree being about two feet one and one-half inches. That said trees are well trimmed, and the lowest branch is twenty feet from the ground. That three of said trees were planted in said sidewalk, pursuant to authority of the city authorities, more than thirty-five years ago, and the fourth some years after said time, and have ever since been carefully nourished and preserved by plaintiff and his predecessors in title. That said trees were left standing by the said defendant when said street was excavated in 1893, and the roots of said trees were at that time excavated and dug oat and removed, so that they should not interfere with the new pavement then laid by said defendant. That said four trees do not in any way interfere with the safe and full use of said street, and have not become detrimental or destructive to said highway, and do not interfere with the lighting of said highway. Nor has said defendant decided that said trees have become destructive or detrimental to said street. That plaintiff’s premises aforementioned are on the north or sunny side of said street, and said trees greatly enhance the value of his premises, and are greatly beneficial to the same for ornament and shade, and for preventing the spread of, any conflagration. That the removal of said trees would greatly depreciate the value of plaintiff’s premises, and would be an irreparable injury to his property rights, which could not be compensated in damages, That said sidewalk in front of plaintiff’s premises is clear and free from any obstruction between the said trees and the northerly line of said street. That, with few exceptions, the sidewalk of said street, throughout the full length thereof, is obstructed, with permission of said defendant, and pursuant to ordinances heretofore passed, with stoops, area-ways, railings, and fences extending from the northerly and southerly lines of said street into said sidewalks about four feet, and along the outer edge of such walks are lines of telegraph, telephone, and electric railway poles, placed and standing there by permission of said defendant. That plaintiff’s sidewalk is free and clear from any such obstruction. That the northerly side of said street is the least traveled side, the number of those traveling there being about halt as many as those traveling on the southerly side. The said defendant threatens to remove said four trees belonging to plaintiff. That said defendant has exceeded thepowér conferred upon it by sections 7 and 8 of said act of 1891 in passing the resolution hereinabove mentioned in the eighteenth clause of this complaint That the power that is vested in said defendant by the acts of 1891 and 1892 to remove and prune and regulate the planting and setting out of trees on Warren street, between Third and Seventh streets, was fully exercised by said board when it repaved said street in 1893, and when it then removed all trees found to be detrimental and destructive to said highway, and left standing, and carefully maintained1 and preserved, for ornament and shade, those standing in the sidewalk of said street, and especially those belonging to plaintiff, hereinabove mentioned, and that such.power is now functus officio. That the threatened removal of said trees by the defendant is a wanton, willful, and perverse abuse of the discretion vested in them, and that all said acts and doings of said board in relation or tending to-the removal of said trees are in bad faith, and in direct opposition and contrary to the interest and property rights of plaintiff, and are in defiance to and in opposition to the true meaning and intent of sections 7 and 8 of said chapter 276 of the Laws of 1891, and of the ordinance of said board of street commissioners. That the injury which will be done to the plaintiff if the defendant remove said trees in front of his premises, which are valuable premises, will be constant, continuous and irreparable, and that in no way can this plaintiff obtain adequate redress but by the equitable interference of this court in preventing the wrong and injury threatened to him and to his said property by the defendant. Wherefore, the plaintiff demands judgment that the defendant, its counselors, attorneys, agents, and servants, and each and every one of them, be forever restrained from cutting down, felling, barking, removing, or otherwise wasting or impairing the four elm trees now standing and growing in front of plaintiff's house on Warren street, hereinabove described, and from removing -any and all such trees, and for such other and further relief in the premises as may be just, and for the costs and disbursements of this action.”

This complaint, upon its statement of facts, presents upon its face, it seems to us, grounds for equitable relief, unless from its stateinents of the law under which the defendant assumed to act, and. the resolutions and ordinances of the defendant set out in the complaint, the threatened acts of the defendant- are justified. We are not favored by the learned trial court with any opinion, and must therefore examine and determine the question raised on appeal unaided by the light which his opinion would throw upon the case. The material allegations of fact set out in the complaint being admitted by the demurrer, we must first determine whether such facts entitle the plaintiff to the relief demanded in the corn-plaint. The demurrer admits that the plaintiff is the owner of the locus in quo bounded by Warren street on the south. That makes him, unexplained, the owner of the fee to the center of Warren street, subject to the rights of the public in it as a public street. This doctrine seems too well settled to require a citation of the numerous authorities cited by the learned counsel for the appellant. Reference to a few of the authorities upon that subject may, however, be allowable. In re Seventeenth Street, 1 Wend. 262; In re John & Cherry Streets, 19 id. 659 ; Jackson v. Hathaway, 15 Johns. 452 ; People v. Law, 34 Barb. 502; Hennessy v. Murdock, 137 N. Y. 317 ; 50 St. Rep. 717; Cunningham v. Fitzgerald, 138 N. Y. 165 ; 51 St. Rep. 840. That being so, the plaintiff has a right to prevent the removal of these trees by injunction, if such removal would work an irreparable injury to his premises, unless, in the language of section 8, c. 276, of the Laws of 1891, they have become detrimental or destructive to said highways, or interfere with their safe and full use,” in which case “ the board shall have power and it shall be their duty to remove or prune the same, having in view at all times the proper maintenance of the same, when not detrimental to such highways for ornament and shade.”

It will be observed that the resolution of the board of street commissioners of June 29, 1894, under which these trees of the plaintiff were to be removed, does not recite, nor does it appear anywhere in the complaint, that they were or had become detrimental or destructive to such street or highway, or that they interfered with the safe and full use of the same, which seems to be the only condition under section 8, above quoted, under which the defendant can remove them; while in the complaint it is expressly averred that the four trees do not in any way interfere with the safe and full use of said street, and have not become detrimental or destructive to said highway, and do not interfere with the light of the same, and the complaint affirmatively alleges that the defendant has net decided the said trees have become detrimental or destructive, to bring them within the condemnation of the statute. As allegéd in the complaint, the case presents noadjudication that the trees which the defendant threatens to remove are within the condemnation of the statute, or subject to the judicial discretion vested in the defendant; while, on the other hand, the complaint contains affirmative allegations that the trees, as matter of fact, are not such as the trustees are authorized to remove under section 8 of the statute above quoted. Assuming, therefore, as we must, ou this demurrer, that the allegations of fact in°the plaintiff’s complaint are admitted, and therefore true, the defendant, without right or authority of law, is threatening to •do an act which will result in an irreparable injury to the plaintiff’s premises. Had the defendant, in the resolution, recited facts showing that these trees come within the class of trees which the defendant was authorized to remove, and adjudged them to be the .subject of removal, followed by a resolution or order for such removal, such recitals would prima facie show that it had jurisdiction of the subject-matter; and its determination upon matters apparently within its jurisdiction, and being of a judicial character, could not be questioned collaterally in this action, and the remedy of the plaintiff would in such case have been by certiorari or some other appropriate proceeding to review the action of the commissioners in passing the resolutión taking proceedings for their enforcement. But the attitude in which this complaint places the defendant is that of a capricious and unauthorized meddler with the rights and property of the plaintiff, doing him an irreparable injury, without bringing itself within the conditions by which it can justify its acts under the statute from which it claims to derive its authority. ' There is no doubt that the defendant, while acting within the scope of its authority and jurisdiction, is clothed with judicial powers; and, when acting in such judicial character within its jurisdiction, its determinations cannot be attacked collaterally. But. when its acts or determinations are questioned, it must be able to show a state of facts upon which it can establish its special judicial discretion.

In Underwood v. Green, 42 N. Y. 140, the court, in discussing the incidental judicial powers of administrative officers, uses this language:

“While it must be conceded that the inspector, in the discharge of his duties, * - * * is clothed with judicial discretion, yet he is an officer of limited and special jurisdiction, and when in any given case his power is challenged, he must prove some fact invoking, or tending to invoke, the exercise of his discretion.”

It is by no means improbable that, if an issue of fact were joined in this case, the defendant might, upon the proof, show that these trees came within some of the provisions of the statute which would justify the defendant in making the order for their removal; but, taking the allegations of this complaint all together, these trees are not brought within any of the condemnations of the statute which would justify the defendant in removing them. We think, therefore, that a valid cause of action is set out in the complaint for the equitable relief demanded : (1) The property sought to be interfered with or taken belongs to the plaintiff. (2) The proposed interference by the defendant would produce irreparable injury. (3) For that injury the plaintiff would have no adequate redress at law. Flood v. Van Wormer, 70 Hun, 415 ; 53 St. Rep. 682. (4) The jurisdiction of the defendant to make the removal is not, from the allegations of the complaint, established.

The order sustaining the demurrer, and the judgment entered thereon, should be reversed, with costs; and the defendant should have leave to answer upon payment of cost of the demurrer, including costs on this appeal.

All concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    The People ex rel. Edson Lewis, App’lt, v. Edward F. Brush et al., Resp’ts.

      (Court of Appeals,

      Filed April 30, 1895.)

    1. Mandamus—Office.
    A writ of mandamus, upon the application of one claiming office, will not be granted for' the purpose of determining the validity of his claim, where there is a serious question in regard thereto and another person is holding and exercising the functions of the office.
    2. Same—Quo warranta.
    In such case, a proceeding by quo warranta is the proper and appropriate remedy.
    3. Same—Presumption.
    Upon a motion for a peremptory writ of mandamus where opposing affidavits are heard which are in conflict with the averments in the moving affidavit, the question as to the right to the writ must be determined upon the assumption that the averments in the opposing affidavits are true.
    Appeal from order of the general term of the supreme court in the second judicial department which affirmed an order of special term denying a motion by the relator for a writ of peremptory mandamus.

      Roger M. Sherman, for app’lt; Joseph S. Wood, for respt’s.

       Affirming 64 St. Rep. 139,

   Haight, J.

The relator asked for a peremptory writ of mandamus, based upon his own affidavit, stating that he received a plurality of the votes lawfully cast for the office of mayor, at the election held in the city of Mount Vernon, May 15, 1894, and that on the following day, at a regular meeting of the common council, the votes were duly canvassed and he declared elected. He also presented a certificate of the city clerk that a resolution was adopted to that effect, together with the affidavit of Edward F. Brush, one of the respondents and the then acting mayor, to the effect that, he conceded that the relator was elected to the office of mayor, and that there was a valid and lawful canvass of the certificates. of his election. In opposition to the motion an affidavit of Edwin W. Fiske, one of the respondents and an alderman of the city, was read, in which he denies that the relator received a plurality of all of the votes cast for the office of mayor, or that it so appeared from the lawful certificates of the inspectors of election on file in the office of the clerk of the city, or that there was a regular meeting of the common council of the city held on the day following the election at which there was a canvass of the votes or of the certificates of election so far as the office of mayor was concerned.

The special term denied the motion. In the opinion delivered by the court on the denial thereof it appears that the common council of the city wqs composed of ten aldermen, and that but five were present at the time the votes were canvassed, and the conclusion was reached that the canvass was illegal, and void for the reason that no quorum was present.

We have carefully examined the record and have failed to find any statement, either in the moving or opposing affidavits, showing the number of aldermen that were present taking part in the canvass, and it is well settled that we cannot refer to the opinion of the court below for the purpose of ascertaining the facts. This appeal must, therefore, be disposed of upon the other questions presented. Mechem, in his work upon Public Offices and Officers, at section 478, says: “The proceeding by quo warranta is the proper and appropriate remedy for trying and determining the title to a public office and of ascertaining who is entitled to hold it; of obtaining possession of an office to which one has been legally elected and has become duly qualified to hold, and also of removing an incumbent who has usurped it, or who claims it by an invalid election, or who illegally continues to hold it after the expiration of his term."

In the Matter of the Application of Gardner for a Mandamus to the Clerk of the Board of Supervisors of Kings County, 68 N. Y. 467, it was held that a writ of mandamus upon the application of one claiming title to an office will not be granted for the purpose of determining the validity of his claim where there is a serious question in regard thereto and another person is holding and exercising the functions of the office. And in The People ex rel. Dolan v. Lane, 55 N. Y. 217, it is stated in the opinion of the court that “ If there be a serious question as to the title to the office, it ought not to be decided against the party in possession in a proceeding in which he has no opportunity to be heard. Mandamus is not the proper, remedy in such a case.” See, also, People ex rel. Wren, v. Goetting, 133 N. Y. 569; 44 St. Rep. 503.

Upon a motion for a peremptory writ of mandamus where opposing affidavits are heard which are in conflict with the averments in the moving affidavit, the question as to the right to the writ must be determined upon the assumption that the averments in the opposing affidavits are true. People ex rel. Tenth National Bank v. The Board of Apportionment of the City and County of New York, 64 N. Y. 627. Here we have a denial of the essential facts upon which the application for the writ was based. The facts relied upon by the relator were, therefore, controverted and a serious question raised in reference to his title to the office. We are, therefore, of the opinion that 'mandamus was not his proper remedy, but that he should have resorted to an action under the Code in the nature of a quo warranta.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.


author: Gray, J.

text:
    National Board of Marine Underwriters, App’lt, v. National Bank of the Republic of New York, Resp’t.

      (Court of Appeals,

      Filed May 3, 1895.)

    Judgment—Genebal teem on appeal.
    Where the plaintiff appeals from so much of a judgment, entered on the report of a referee, as awards less damages than demanded in the complaint, and the defendant appeals from the whole judgment, the general term has no authority to affirm the judgment from which the plaintiff appeals and reverse the judgment from which the defendant appeals and order a new trial, unless the plaintiff stipulates to reduce the recovery as specified. If there is error in the judgment on the referee’s report, this necessarily requires the reversal of the entire judgment and a new trial as to the entire claim or a modification of the judgment.
    Appeal from judgment of the general term of the supreme court of the city of New York, entered upon an order which affirmed on plaintiffs appeal a judgment in favor of plaintiff entered upon the report of a referee, and reversed said judgment on defendant’s appeal and ordered a new trial unless plaintiff stipulate to -reduce its recovery.
    Appeal also from an order of said general term which denied a motion to vacate said order and the judgment entered thereon.

      George A. Black, for app’lt; George B. Hastings, for resp’t.

       Reversing 62 St. Rep. 125.

   Gray, J.

The plaintiff recovered a judgment against the defendant, upon the report of a referee, which awarded to it less than the damages demanded in the complaint. It appealed from so much of that judgment as awarded the damages. The defendant also appealed from the whole judgment. The general term made the following order: “That the judgment from which the plaintiff appeals be * * * affirmed with costs and it is further ordered that the judgment from which the defendant appeals be * * * in all respects reversed and a new trial ordered with costs to the defendant to abide the event unless the plaintiff shall file a stipulation * * * agreeing to reduce the recovery,” etc. Judgment was entered upon that order in accordance with its terms ; fixing the sum of plaintiff’s costs and, because of the plaintiff’s failure to stipulate to reduce its recovery, as suggested in the order, absolutely reversing the judgment upon the defendant’s appeal and ordering a new trial, with costs to abide the event, etc. Subsequently, the plaintiff moved the court, at general term to vacate its order and to enter “the proper order * * * in conformity with the decision,” etc. The motion was denied. The plaintiff then appealed to this court from so much of the judgment entered, etc., as affirmed the judgment entered upon the report of the referee and, also, "appealed from the order of the general term denying the motion to vacate its order.

We think there was no authority for such an order by the general term, or for the judgment entered thereupon and that thp plaintiff’s motion to vacate them should have been granted. Their provisions are glaringly inconsistent. First, the judgment upon plaintiff’s appeal is affirmed and then it is reversed in all respects ; costs being given to each party by the judgment. The plaintiff’s recovery of damages is affirmed ; but it is also reversed. Such a practice cannot be approved, for it would lead to the utmost confusion and permit what has been condemned in this court; namely, that one portion of the cause could be sent back for a new trial and that the other portion might bo brought here. Story v. N. Y. & H. R. R. Co., 6 N. Y. 85 ; Goodsell v. W. U. Tel. Co., 109 id. 147; 15 St. Rep. 73. If the judgment must be reversed for error, the error necessarily reverses the entire judgment and the new trial must be as. to the entire claim. Wolstenholme v. Wolstenholme Co., 64 N. Y. 272. The anomalous condition is presented where a judgment decisive of an action to recover damages is at once affirmed and reversed, without other distinctive elements in the order of the appellate court than those of separate appeals by the plaintiff and defendant. It is scarcely conceivable that such a decision can stand and the logical result, whether we regard the order or look at the reasons assigned in the opinion, is that a reversal of the judgment is effected. The separate appeals 'by the plaintiff and the defendant call for but one of the. dispositions authorized by the Code to be made by the general term and, as that court found error in the referee’s conclusions, they should either have simply ordered the reversal of the judgment and a new trial of the issues; or do what .was probably in mind (and what, because, in our judgment, the conclusion reached by the general term was correct, would have been proper), modified the judgment to the extent mentioned in the opinion. Not having done so, the order of the general term should be reversed and an order should be entered reversing the judgment entered upon the report of the referee absolutely and ordering a new trial before another 'referee, with costs to abide the event.

As to the plaintiff’s appeal from the judgment, we think that, in view of the plaintiff’s attitude towards the order of the general term, it should not have been taken and must fail. It was open to the plaintiff to take a new trial of the cause upon the general term order if it desired it; but, with an absolute reversal of the judgment and a new trial ordered, it could only come here upon appeal upon a stipulation for judgment absolute in case of affirmance. Our determination upon the plaintiff’s appeal from the order of the general term denying the motion to vacate its judgment, necessarily leads to the dismissal of its appeal from the judgment..

The appeal from the judgment is, therefore, dismissed, but, under the circumstances, without costs to either party as against the other. The order of the general term, which disposed of the appeals of the parties, is reversed and an order should be entered reversing the judgment, entered upon the report of the referee, and ordering a new trial, with costs to abide the event.

Costs as upon an appeal from an order are awarded to the appellant.

All concur.

Ordered accordingly.


author: O’Brien, J.

text:
    Thomas W. Robertson, App’lt, v. The Ongley Electric Company, Resp't.

      (Court of Appeals,

      Filed April 23, 1895.)

      Contract—Construction.

    Where a chattel mortgage provides, among other things, that, in case the mortgagor “permit or suffer any attachment or other process against property to be issued against it," the debt secured “shall become instantly due and payable,” the property, referred to in this provision, is that described and covered by the mortgage, and such condition is not broken" by the levy of an attachment upon other property of the mortgagor.
    Appeal from a judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of defendant entered upon a decision of the court dismissing the complaint on trial at special term.

      Treadwell Cleveland for app’lt; Rufus W. Pechham, Jr., for resp’t.

       Affirming 64 St Rep. 342.

   O’Brien, J.

The only question involved in this appeal is whether the note upon which the action was brought was due, and this depends upon the construction which should be given to the instrument which accompanied it

The action was upon a promissory note made by the defendant of $22,783.33, dated New York, Nov. 1, 1892, payable two years after date to the plaintiff’s order in the city of New York, with interest at five per cent. The action was commenced on April 4, 1893, about five months after it was made. The defendant is a New Jersey corporation, with its principal office and place of business in that state, but doing business in New York. On March 20th, 1893, a suit was brought against the defendant by a third party by attachment in the supreme court of New York, which was levied upon some of its property in this state, and was in force at the time of the commencement of the present action. It is claimed by the plaintiff that under the terms of an instrument, referred to hereafter, and by reason of these facts, the note became, due when the attachment! was levied, though the claim upon which it was procured is denied by the defendant and resisted by a defense in the action. The trial court dismissed the complaint and the judgment has been affirmed at general term.

The instrument referred to is a chattel mortgage, bearing even date with the note, whereby the defendant conveyed to the plaintiff certain personal property therein described, situated in the state of New Jersey, upon condition, however, that in case the defendant paid the note and interest, according to its terms, the transfer should be void, and then follows the clause upon which the plaintiff relies to support its contention that the note was due in these words :

“And the said party of the first part, for itself and its successors and assigns, covenants and agrees to and with the said party of the second part, his executors, administrators and assigns, that in case default shall be made in the payment of the said principal sum above mentioned, or in the payment of the interest thereon, or in case the said part}' of the first part shall at any time before the day of payment herein provided for, remove the said goods, chattels and property, or any part thereof, or permit or suffer any attachment or other process against property to be issued against it, or permit or suffer any judgment to be entered up against it, then the said principal sum above mentioned shall become instantly due and payable, and then it shall and may be lawful for, and the said party of the first part does hereby authorize and empower the said party of the second part, his executors, administrators and assigns, with the aid and assistance of any person or persons, to enter upon the premises of the party of the first part, and such other place or places whatever in which the said goods, chattels and property, or any part thereof, are or may be placed, and to take and carry away the said goods, chattels and property, and to sell and dispose of the same either at public auction or private sale, without notice thereof to the party of the first part, its successors or assigns, and out of the money arising therefrom to retain and pay the said principal sum above mentioned and interest, and all charges touching the same, rendering the overplus, if any, unto the said party of the first part, its successors or assigns.”

The subject-matter of this instrument was the personal property transferred in security of the debt. It is conceded that all of its language relates to this subject, except the words “or permit or suffer any attachment or other process against property to be issued against it, or permit or suffer any judgment to be entered up against it:” The contention in behalf of the plaintiff is that whenever an attachment issued and was levied upon any of the defendant’s property, wherever situated, without regard to the validity of the claim upon which it was procured or its amount, or the court or jurisdiction from which it proceeded, then these conditions were broken, and the note became instantly due, although the property mortgaged was not affected. This interpretation is based upon a literal reading of the clause in the mortgage. The purpose which the parties had in view and the real matter in hand was the protection of the mortgaged property from invasion or disturbance by third parties through legal process which would endanger the security and put the mortgagee to trouble and expense in defending it. This was the subject in the minds of the parties, and, though the words would seem to admit of a larger sense, yet they should be restrained to the particular occasion and to the particular object which the parties had in view. The parties were inserting conditions calculated to secure the mortgaged property and that alone; but, by the generality of the language used, these conditions are made to apply to other property and to all the property the defendant had, wherever situated. In such cases the general words will be confined to the subject-matter and to the particular occasion. Van Hagen v. Van Rensselaer, 18 Johns. 423. They should not be taken in their broadest sense, but in that in which it is reasonable to suppose they were= used and understood by the parties themselves. The contention" of the learned counsel for the plaintiff, when pushed to all its results, and when all its possibilities are given full scope, means that the parties have stipulated that this note should become presently due whenever an attachment should be issued and levied on the defendant’s property on a claim of five dollars or any other nominal amount by a justice of the peace in any state or county .where the defendant happened to be at the time doing business. It is quite certain that the parties had no intention to bring about such a result, and, if they have used some general words which would seem to give support to such a view, they will be limited to the subject-matter of the contract, which was the identical property described in the mortgage. It is apparent that a period of credit was intended to be given, but, if we adopt the plaintiff’s contention, the note was practically payable on demand, since it would fall due at any time when an attachment was levied on the defendant’s property anywhere, for ever so insignificant a claim, whether valid or not. At-" tachments are easily obtained against foreign coporations, and in the case of a concern having business transactions in many states and even in foreign countries, the event which made the note due, upon the plaintiff’s contention, could readily be brought about at any time. But giving such an extreme and unreasonable construction to the words used would result in placing the maker of the note completely in the power of the holder and this is to be avoided if possible, Russell v. Allerton, 108 N. Y. 208 ; 13 St. Rep. 629; Wright v. Reusen, 133 N. Y. 308; 45 St. Rep. 183; Halpin v. Ins. Co., 120 N. Y. 73; 30 St. Rep. 261;[ White v. Hoyt, 73 N. Y. 505, and is avoided by limiting the meaning and application, of the word “property” to the property described in the preceding part of the instrument. We must read the whole instrument, and when we find the parties using a certain word or expression in different parts of it, it is reasonable to suppose that it was always used in the same sense unless a different meaning was plainly intended, and if the meaning is more clear and certain in some parts ‘than in others, thosé which are obscure may be illustrated by the light of others. (2 Parsons on Cont. 501.) So general words which would seem to be used in a large or extensive sense may be narrowed and limited to what appears from the general scope of the contract to be the intention and object which the parties had in view. (2 Wharton’s Law of Contracts, 664.) Contracts are not to be interpreted by giving á strict and rigid meaning to general words or expressions without regard so the surrounding circumstances or the apparent ‘purpose which the parties sought to accomplish.

On the contrary, as was said in Coyne v. Weaver, 84 N. Y. 390, “a court may wrestle, if need be, with unwilling words to find the truth, or preserve a right which is endangered.” We think, therefore, that the condition with respect to the issue and levy of an attachment, which was to make the note instantly' due, applied only to process under or by virtue of which the mortgaged property or the possession thereof was to be affected, endangered or disturbed, and since it is undisputed that this event bad not taken place when this action was commenced the condition, according to its true meaning, was not broken and the note was not due.

The judgment should be affirmed, with costs.

All concur, except Peckham, J., not voting.

Judgment affirmed.


text:
    Caroline S. Wilkinson, Resp’t, v. Henry Eugene Davies, as Administrator, etc., App’lt.

      (Court of Appeals,

      Filed April 30, 1895.)

    Damages— Contract.
    Under a lease of certain rooms in tlie lessor’s house, with table board for lessee and family, for a stated term, at a stipulated price per week, “with no deduction in case of absence,” the measure of damages in an action to recover for the time the rooms remained vacant, is not limited to the profits the lessor would have made, had the lessee carried out his contract, but the contract price may be recovered.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Byron Travers, for app’lt; William D. Leonard, for resp’t.
   Haight, J.

This action was brought to recover for board and lodging furnished by the plaintiff to the defendant’s intestate, Henry E. Davies.

It appears thatthe plaintiff let to Davies rooms on the second floor of her residence, No. 34 West 51st street in the city of New York, consisting of a parlor, two bed rooms and connecting bath for the occupancy of himself and family, consisting of a wife and son, from the 5th day of November, 1890,. to the 1st day of June, 1891, with table board for the sum. of $70 per week with no deduction in case of absence; that Davies entered into possession ofK the premises at the time mentioned and continued until Thanksgiving day, at which time he abandoned the premises and went away. The premises remained vacant until the first of January, at which time the plaintiff re-let them to four people for $75 per week. Davies paid for the time that he occupied the premises and no longer. A verdict was directed in favor of the plaintiff for the time that the premises remained vacant at $70 per week, the contract price.

The appellant contends that an improper measure of damages was adopted, and that all that the plaintiff could properly recover under the circumstances were the profits she would have made had Davies carried out his contract. This would doubtless be the rule as to the measure of damages were it not for the provisions of the contract that no deduction should be made in case of absence. Here we have an express provision fixing the term, the amount to be paid per week without deduction, etc. Under such a contract we think the price agreed upon becomes the proper measure of damages. In this connection it is further contended that the provision “ with no deduction in case of absence” should be construed to mean that there should be no deduction so long as Davies kept his agreement, but this construction would permit Davies to avoid the provisions of the contract by his own breach thereof, and such it does not appear to us was the intention of the. parties. But suppose we should so construe it. We find no evidence in the record that Davies ever terminated the contract, or that he gave notice that he would no longer occupy the premises. He left and went away, it is true, but he might have returned the next day, the next week, or even the next month, and continued his occupancy of the premises, and the plaintiff in the meantime-was required to keep his rooms ready for him. Under such circumstances it would appear to be unjust to deprive the plaintiff of the benefit of her contract.

It further appears that upon the trial the plaintiff offered to show her profits from the people that occupied the premises after the first of January, and as to whether they were greater or less than that which she would have derived from Davies had he continued to occupy them. This was objected to by the defendant, without stating any grounds for the objection, and the same was-sustained. She further attempted to show what it would have cost her per week to provide table board for Davies and his family. This was also objected to by the defendant and the evidence was excluded. Had this evidence been received it might have appeared that the plaintiff’s profits from the four boarders after the first of January were the same as they would have been had Davies and his family continued to occupy the premises, and that the plaintiff’s expenses in providing table board for Davies- and his family were $15 or $20 per week, from which a deduction might have been made from the contract price of $70 per week. But the defendant interposed an objection to this evidence and caused it to be excluded. After so excluding it, we think he is in no position to insist that the plaintiff’s recovery be limited to her profits. As we have seen, no ground was stated for the objections to the evidence. The complaint was in due form to recover for board and lodging. If, upon the trial, the plaintiff consented to forego her claim to the contract price of $70 per week without deduction in case of absence, and permit a deduction therefrom of her costs for table board, the defendant ought not to complain, or be permitted to defeat her right to recover, because the complaint did not demand that particular measure of relief. The judgment should be affirmed, with costs.

All concur. Judgment affirmed.


text:
    Selig Maas et al., App’lts, v. Abraham Falk, et al., Resp’ts.

      (Court of Appeals,

      Filed April 30, 1895.)

    1. Assignment for creditors—Preference.
    In case of a general assignment in violation of the statute simply because it creates prefei enees contrary to its provisions, the remedy of a creditor is, it seems, to come into court and ask its equitable aid to secure to himself and the creditors who are excluded by the instrument from a share in the assignor’s estate, that ratable distribution of two-thirds thereof, which the act of 1887 intended that they should have,
    2. Same—Fraudulent.
    Where a transfer of property is one to secure the payment of a valid and subsisting indebtedness, and the transferee was in ignorance of any intention of his debtor to follow up the transaction by divesting himself, within a short time, of all control of the balance of his property, lie cannot be said to have been a participant in any scheme for the violation, or evasion, of the statute.
    Appeal from judgment of the general term of the,, supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at special term dismissing the complaint.
    This is an action by certain judgment creditors of the firm of Falk Brothers & Co. to set aside, as being void and fraudulent as to them, a certain transfer of property,, which had been made by the judgment debtors to the three defendant banks. The instrument of transfer referred to in the complaint, after reciting the indebtedness of Falk Brothers & Company to the three banks, proceeded to transfer to the banks all the goods, wares and merchandise, stock in trade and fixtures of Falk Brothers & Co. in their store, “to have and to hold to the said banks as security for the said indebtedness to them respectively, with authority to the said banks to hold and sell the same at public or private sale '* * * and after payment of the expenses of such sales and the said indebtedness to said banks, with interest in full, or ratably,' * * * to render the overplus to said firm or its assigns.” That instrument was made and dated on the 27th day of March, 1891, and under the following circumstances: The firm was indebted to the three defendant banks upon promissory notes in sums of money aggregating $88,832. In the evening of March 27th, 1891, one of the firm of Falk Brothers & Co. had a meeting with the representatives of the three banks at the house of his counsel; the banks having been informed that the firm was in financial trouble, through their Southern house. None of the promissory notes held by the banks were then due; but it was agreed that they should all be surrendered to the firm and that each bank should take back, in satisfaction of the notes surrendered, a note for the amount owing to it upon the notes surrendered, less the rebate of interest for the time they had to run. The payment of three new notes was to be secured by a mortgage upon certain personal property belonging to the firm. That agreement was immediately carried into effect by the execution and delivery of three promissory notes to the three banks, payable on demand, with interest; by the surrender and satisfaction of the old notes and by the execution and delivery of the instrument above mentioned. The banks took immediate possession of the property mentioned in the instrument of transfer and in pursuance of its authority sold the same and applied the proceeds, ratably, to the payment of the amount owing to each upon their notes. The proceeds of the sale, after deducting expenses, were not quite sufficient to satisfy the indebtedness to the banks. It further appears that, upon the' day following this transaction with the banks, the firm of Falk Brothers made several assignments to certain other of their "creditors of various claims and accounts and they assigned to one of their firm, “as guardian,” the overplus, if any, mentioned in each of such assignments, to pay the amount of an indebtedness mentioned. As the result of the transfers effected by all of these instruments, all of the property of Falk Brothers & Co. was appropriated to the discharge of their indebtedness to the particular creditors described. It was found as a fact by the trial court, that, at the time of the acceptance of the demand notes and the execution of the instrument in question and the delivery of the possession of the property therein contained, none of the defendant banks had any knowledge or notice of any other transfer, or intended transfer, of any property or assets by the defendants Falk. It was also found as- a fact, that no general assignment of the estate of the defendants Falk, for the benefit of their creditors, was made by them; that, the agreement between the defendants Falk and the three banks, and the transaction between them in pursuance of such agreements, were without any intent to hinder, or defraud, or deláy the plaintiffs, or any creditor of the defendants Falk. The complaint was dismissed upon the merits at the special term and upon appeal to the general term the judgment entered upon that dismissal was affirmed.

      Isaac H. Maynard for app’lts; S. B. Brownell, J. B. Talmage and Charles Strauss for resp’ts; B. F. Einstein for resp’ts.

       Affirming 54 St. Rep. 160.

   Gray, J.

I am not disposed to dispute the proposition of the appellants, which has been so ably argued by their counsel. If the transactions between the firm of Falk Brothers & Co. and the creditor’s of that firm, which resulted in transfers of all the firm property, had been simultaneous and it was plain that, in their guise, the debtor firm had. in fact, made a general assignment to favored creditors, then I should consider that there had been a violation of the provisions of the statute, regulating the assign.ments of the estates „of debtors for the benefit of their creditors. The prohibition of the act of 1887 (chap. 508, N. Y. Session Laws, sec. 30) against the creation of preferences, except to the amount of one-third in value of the assigned estate, cannot be evaded by resort'to instrumentalities, which, however independent, are merely parts of a plan, through which certain creditors secure a preference in payment and the distribution of the debtor’s assets as intended by the statute is prevented. Such a scheme between a debtor and some of his creditors would be as intolerable an evasion of the statute, as would be a transaction where the particular instrumentality, resorted to between the parties to secure the undue preference, was a transfer of property made independently, but in contemplation of a general assignment. If it were the fact that the defendant banks knew of their debtors' intention subsequently to accomplish an assignment of their whole-estate to favored creditors, then we might regard the transaction with them, on the evening of March 27, as one of the instrumentalities for evading the statute and for working a fraud upon creditors. But there was no general assignment under the statute by the Falks and the finding to that effect is in accord with the-facts of the case ; although, as a matter of fact, through the various transfers, the debtors have disposed of all of their property.

The evidence does not bear out the plaintiffs’proposition, nor establish the existence of any scheme as between these banks andFalk Brothers. Before discussing that part' of the case, I may observe that if it were true that the transaction with these banks-constituted an undue and illegal preference and there was, as it is-also in substance alleged and as it has been argued, a general assignment by the debtors Falk of their property, which was in evasion of the statute and in violation of its provisions simply because creating preferences contrary to the provisions of the statute, then the plaintiffs liavb not pursued, in my judgment, - the proper remedy. In such a case they should come into the court and ask its equitable aid to secure to themselves and the other creditors, who were excluded by these instruments from a share in the debtors’ assets, that ratable distribution of two-thirds thereof, which the act of 1887 intended they should in all events have.. Otherwise they would by reason of their judgments obtain a preference in the payment of their debts, which they complained of as having been given by the debtors to other of their creditors. That is a position which a court of equity could not regard with, any favor. The purpose of the statute is to prevent any preference, other than that for wages or salaries of employes, beyond one-third of the assigned estate and if that amount is exceeded,, the penalty is not the annihilation of the assignment, but the reduction of the preference to the prescribed limit. Central National Bank v. Seligman, 138 N. Y. 435; 53 St. Rep. 14. Where that is the condition of affairs under a general assignment of the debtor's property, the remedy of creditors aggrieved by their debtor’s act is by an action in aid of the assignment for the benefit of the body of creditors; if their rights are not asserted by the assignee. Spelman v. Freedman, 130 N. Y. 421 ; 42 St. Rep. 531; Bank v. Seligman, supra ; Abegg v. Bishop, 142 N. Y. 286; 58 St. Rep. 788. In such a case the maxim vigilantibus et non clormientibus jura subveniunt cannot be invoked. .It has application in cases where it is the policy of the law to reward enterprise and to punish indolence and negligence. It is needless to observe that it cannot be the policy of the law to encourage an activity, which would defeat one.of its principal objects. But the difficulty with this case is that it is not borne out by the facts. Although the various instruments of transfer between the Falks and the defendant banks and between them and their other creditors, all, bore the same date, as matter of fact the transaction with the banks, alone, took place on the 27th of March, 1891; while the transactions with the other creditors were upon the succeeding day. So far as the evidence discloses, there was no relation, nor connection, , between the transaction with the banks and that with the other creditors on the following day. None can be inferred from the similarity of the dates. The finding of fact was that at the time of the transaction none of the banks had any knowledge or notice, of any other transfer, or intended transfer, of any property by the Falks. There is nothing in the evidence which shows, or tends to show, that knowledge and the burden upon the plaintiffs to give such proof was never shifted upon the defendants. The argument in answer assumes that the plaintiffs had ohown that when the Falks executed their transfer to the banks, they contemplated insolvency and an evasion of the statute respecting assignments and that, therefore, it was for the defendants to prove their innocence of any participation in such a scheme. The assumption is wrong not only in the facts, but in the law. The proof simply showed that the Falks, finding themselves financially ■embarrassed, hastened to secure their indebtedness to the three banks upon the unmatured notes and accomplished it by taking up the existing notes and giving therefor notes payable on demand ; payment of which was secured by a transfer or pledge of property; under the terms of which the banks were enabled to proceed, immediately, to take possession of the property covered and, by a sale, eventually, to satisfy nearly all their indebtedness. There is not a word nor an incident, to show that, at the time of this transaction, the Falks intended anything more than to secure the banks against loss upon the notes held. Whether they had in mind, at the time, the making of further transfers, afterwards; or whether that idea occurred to them subsequently does not appear and it is immaterial to the issue. The transaction was one to secure the payment of a valid and subsisting indebtedness and if the defendant banks were ignorant of any intention of their debtors to follow up the transaction by divesting 'themselves upon the next day of all control over the balance of their property, they cannot be said to have been participants in any scheme for the violation, or evasion, of the statute. The finding is explicit upon the question of knowledge and the case, therefore, in that aspect, and as one where the creditor simply obtains security for the payment of his honest debt, comes within the authority of Manning v. Beck, 129 N. Y. 1; 41 St. Rep. 199. In that case the question was whether a creditor who procures a bill of sale from an insolvent debtor, in payment of, or as security for, an honest and subsisting debt, and in ignorance of any intention on the part of the debtor to make thereafter a general assignment, can hold it as against the world; even though the property passing under the bill of sale exceeded one-third of the assets of the vendor. There a father transferred to his son, to whom he was indebted, a stock o£ goods and fixtures in a store by a bill of sale, in payment cf the indebtedness. The next day the father made an assignment for the benefit of creditors to an assignee. The son knew that his father was insolvent, but did not know that he intended to make a general assignment The preference thus intentionally given to the son was upheld. It was said that “the statute does not and was not intended to prevent a creditor from obtaining payment of, or a security, and thereby a preference, for his debt, even from an insolvent debtor and when a court is asked to set aside a security which is disconnected from and prior to any general assignment, on the ground that it is in violation of the act in relation to preferences in general assignments, it at once becomes a question whether the act was ever intended to cover a case, where the creditor * * * was ignorant of any existing intention on the part of the debtor to thereafter perform an entirely separate act and make a general assignment. It does not, in terms, cover such a case, and we think it should not be thus extended by construction." The decision in Manning v. Beck is carefully reasoned out and shortens a discussion upon questions which were there considered.

In view of the findings and upon the evidence, the transfers of property to the defendant banks and to the other creditors cannot, be regarded as constituting one transaction, or having one and the same general object. In the case of the debtors, there is nothing but surmise upon which an inference can be rested of an intention to evade the statute by preferring certain creditors through a series of separate assignments or transfers of property ; while as to the defendant banks, there is no evidence to charge them with knowledge of any such intention, if it existed, and there is the express finding that they had no knowledge of any other intended transfer of property by the Falks.

The position of the appellants is weak in several respects. It incorrectly assumes that all the instruments were simultaneously executed. It regards the transfer of the property to the defendants as a mere trust assignment; whereas it was actually a pledge or mortgage of the property as security for an existing indebtedness. It assumes that the Falks made the transfer in contemplation of insolvency and with a design to evade the statute, without any evidence upon which the assumption might rest. It assumes the existence of evidence tending to prove as a fact an intention to hinder, delay and defraud creditors; when there was none, unless by treating the transfer to the defendants on March 27 and the subsequent transfers to other creditors upon the following day as one transaction; which, because preferring certain creditors to the extent of all their property, was in violation of law, or, as it is said, “ a fraud upon the statute.”

I think it needless to pursue further a subject, which in recent and successive decisions has been in effect covered by their discussions, in its several phases. See, Berger v. Varrelmann, 127 N. Y. 281; 38 St. Rep. 813; Manning v. Beck, 129 N. Y. 1; 41 St. Rep. 199; Central Bank v. Seligman, 138 N. Y. 435; 53-St. Rep. 14; and Abegg v. Bishop, 142 N. Y. 286 ; 58 St. Rep. 788.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    Shepard Tappen, App’lt, v. The State, Resp’t.

      (Court of Appeals,

      Filed April 30, 1895.)

    Public health—Diseased animal.
    Under the provisions of sections 63, 63, chapter 661 of 1893, the owner of an animal, directed by the state board of health to be killed, is not entitled to the value of the animal considered as sound and unaffected by disease, but simply its actual value in its diseased condition.
    Appeal from award by the board of claims, which directed an award of $1,400 in favor of the claimant.

      Myer Nussbaum, for app’lt; T. E. Hancock, for resp’t.
   Haight, J.

A claim was filed by the appellant to recover the sum of $3,645, damages for the killing of forty Jersey cattle, owned by him, by the board of health of the state pursuant to the provisions of chapter 661 of the Laws of 1893. Before the cattle were killed the claimant caused them to be appraised upon the basis that they were sound and unaffected by disease. Upon the trial the attorney-general offered in evidence, without objection, the official autopsies on file in the officq of the board of health, of each animal slaughtered, from which it appears that each was suffering from the disease of tuberculosis. The board so found as a fact- and awarded the claimant $35 per head.

The only question which we are called upon to consider per.tains to the measure of damages adopted by the board. Was the claimant entitled to the value of his cattle upon the basis that-they were sound and unaffected by disease, or was he properly limited to the actual value in their diseased condition? It appears to us chat the question is answered by the statute. It provides-that “The actual value at the time of the destruction of any animal killed in pursuance of this article, not exceeding in the case of a horse affected with glanders, the sum of fifty dollars, shall be paid to the owner thereof by the state ; and the Board of Claims shall have exclusive jurisdiction to hear, audit and determine any such claim.” (Laws of 1893, chapter 661, § 63.)

Actual value means the true value. True value depends upon the condition. If an animal is diseased it is not as valuable as it would be if sound, and its true value can only be determined upon full knowledge of all the facts connected with it.

It appears to us that the Board of Claims adopted the rule cf damages provided for by the statute, and that the award should be affirmed, with costs.

All concur.

Award affirmed.


author: Per Curiam.

text:
    Edwin Einstein, App’lt, v. The Rochester Gas and Electric Company et al., Resp’ts.

      (Court of Appeals,

      Filed April 30, 1895.)

    Corporation—Capital stock.
    There is no such thing as an implied authority to increase or diminish the capital stock of a corporation. It can be increased only in the manner prescribed by its charter or some legislative enactment. No acts of its officers or agents are competent to enlarge such stock.
    Appeal from an interlocutory judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which reversed an order of special term sustaining a demurrer to the complaint.
    On defendants’ demurrer to the complaint.
    This action is to compel the defendant, the Rochester Gas and Electric Company, to issue to the plaintiff four hundred .and eighty thousand dollars, par value, of its paid-up stock; or, in default thereof, that the defendants be required to pay to him the par value thereof. The plaintiff’s assignor, Rowley, became the owner through a contract with the Brush Electric Company, of Cleveland, 0., of the exclusive right to sell dynamo electric machines and apparatus made under the Brush patent for electric lighting and electroplating. Rowley agreed with certain persons in the city of Rochester respecting the organization of a stock company, with a capital of one hundred thousand dollars, for the purpose of introducing the Brush electric light into that city. By the agreement forty-eight per cent, of the capital stock of the company was to be paid over to Rowley, as a consideration for an assignment by him of his rights under the Cleveland contract, and, also, forty-eight per cent, of any increase of the capital of said, company. After the formation of the Rochester company, under the name of the Brush Electric Light Company of Rochester, New York, one of the defendants in this action, a formal agreement was executed between that company and Rowley; through which Rowley assigned to it his rights under the Brush patent for Monroe county. The contract contained this agreement on the part of the company (after having recited the issue and delivery to him of forty-eighty thousand dollars of paid-up capital stock as a consideration for the assignment), viz.: “That if at any time hereafter the said capital stock of the said party of .the second part shall be increased (otherwise than for stock issued for cash paid therefor at the time of such issue at par to the extent of one hundred thousand dollars [$100,000] in addition to the present capital) forty-eight per centum of the par value of such increase shall be issued and delivered to said party of the first part, or his assigns, full paid up. * * * And the said party of the second part for itself, successors and assigns, covenants, promises and agrees to and with said party of the first part, his successors and assigns, that in case at any time hereafter the capital stock of said- party of the second part shall be increased (otherwise than for cash paid for the said increase at the time at par to the extent of one hundred thousand dollars [$100,000] in addition to the present capital), that then and in that case said party of the second part will issue and deliver to the said party of the first part, his successors or assigns, forty-eight per centum, in amount, of the par value fully paid up, of such increase as a part of the consideration for this assignment. * * '* It is expressly agreed between the parties hereto that the party of the second part shall not sell or dispose of any of its interests, franchises or rights under this contract without the consent of the party of the first part, or his assigns, in writing. This agreement shall not, however, prevent any stockholder from disposingrof his stock if he elect so to do.” It was subsequent to the making of this latter agreement, that the plaintiff became possessed, by assignment, of Rowley’s interest and rights under the various agreements. Subsequently, with the plaintiff’s consent, there was an increase of its capital stock to the extent of one hundred and fifty thousand dollars in cash, in addition to the one hundred thousand dollars stated in the contract between the company and Rowley; thus making the whole capital stock of the company two hundred and fifty thousand dollars. Some years later a consolidation was proposed between the Brush Company and two other electric light companies in that city and the Rochester Gas Company. This project of consolidation, however, was abandoned, because of the inability to secure the plaintiff’s waiver of his right to forty-eight per cent, of an increase in the stock of the Brush Company of Rochester under his contract; such increase being desired in the capital stock of all the four companies upon consolidation. Thereupon, the Rochester Gas Company and the two other electric light companies of Rochester consolidated into a single corporation, called the Rochester Gas and Electric Company, the present defendant, with a capital stock divided into forty-three thousand shares of one hundred dollars each. Of this stock a certain amount was apportioned to the stockholders of each of the consolidating companies and there were retained in the treasury of the consolidated company twelve thousand five hundred shares, which the directors were authorized to issue in the purchase of not less than a two-thirds interest i,n the capital stock of the Brush Company, at the rate of five shares of the stock of the consolidated company for one share of the Brush Company. In pursuance of this plan the new company acquired .all of the Brush Company’s stock in exchange for the twelve thousand five hundred shares at the rate mentioned. The Rochester Gas and Electric Company, in this way, acquired the control of the Brush Company and the practical ownership of all its properties; but the corporate organization of the Brush Company has been kept up, with a board of directors and with officers, although the persons constituting the board of directors are also directors of the consolidated corporation.
    These facts appear in the complaint of the plaintiff, and his claim is that, to all intents and purposes, the Rochester Gas and Electric Company is the Brush Company, and that, through the process by which the shares of the stock of the Brush Company were acquired by the Rochester Gas and Electric Company, the capital stock of the former company was virtually increased by just one million of dollars, and that the directors and stockholders-of the Brush Company have, by indirect means, effected an increase of the capita] stock of the company with the view of preventing his assertion of a cJaim under his contract to receive forty-eight per centum of any increase of the capital stock.
    A demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, was overruled at the special term ami judgment ordered thereon for the plaintiff. Upon appeal by the defendants to the general term, that court reversed the judgment of the special term ; but gave leave to the-plaintiff to appeal to this court from the interlocutory judgment of reversal.

      George F Danforth, for app’lt; Edward Harris, for resp’t.

       Reversing 59 St. Rep. 83.

   Per Curiam.

In the view that we take of this case, it is unnecessary to consider the appellant’s argument as to the rights-gained through his contract with the Brush Company, otherwise than with respect to the question of whether there has been an increase of the capital stock of that company. Assuming all that-he claims, in regard to his absolute right under the contract to receive forty-eight per cent, of any increase of the capital stock, we do not think it can be said that there has been any such increase effected through the transactions referred to. It may be perfectly true that the transactions with the- Rochester Gas and Electric Company, by which that company acquired all of the stock of the-Brush Company, at the rate of five shares of the former for one of the latter, was a device, adopted by the officers and stockholders of the latter company, to accomplish by indirect means what could not be done directly, because of their inability to secure the appellant’s consent, or to agree upon terms with him. But it was-a possible transaction and one which the contract did not contemplate or provide for. The language of the contract is explicit' with respect to what the company agreed to do and that is “ that in case at any time hereafter the capital stock * * * shall be increased * * * that then in that case said party of the second part (the company) will issue and deliver to the said party of the ■first part (Einstein’s assignor) * * * .forty-eight per cent. * * * of such increase.” Ho condition of things will meet that provision, unless there be, in fact, as in law, an increase of the capital stock. How the capital stock of the Brash Company, which -was $250,000, is to-day $250,000 and it is only by regarding the holdings by the former stockholders of the Brush Company of the shares of capital stock of another company, to wit: The Rochester Gas and Electric Company, that it can be supposed that the capital of the company is larger, as the result of the transactions complained of, than it was before. But that notion is quite untenable. There is but one way by which the capital stock of a company can be increased and that is in the manner authorized by its charter, or by some express authorization of the legislature of the state. No acts of the officers or agents of the company are competent to enlarge the capital stock; nor can the stockholders do so, save in the particular manner pointed out hy the statute. There is no such thing as an implied authority to increase or diminish the capital stock of a company. The transaction in this case was simply one whereby. all the stockholders of the Brush Company have parted with their stock to the Rochester Gas and Electric Company, upon certain terms which had been recommended by the directors. The appellant’s agreement forbade the company from selling any of its interests or rights without his written consent; but it expressly recognized and preserved the right of any stockholder to dispose of his stock if he so elected. The Rochester Gas and Electric company had the- right to purchase, and the consequence was that it became a stockholder in the Brush Company in the place of those who, by transfers of their stock, had ceased to be stockholders therein. But that has no effect upon the Brush Company’s stock, except to change the ownership; and that the Brush Company is to-day a distinct and existing organization, with its own officers and board of directors, and with a capital stock'of $250,'000, is an indisputable fact and is conceded. The argument of the appellant, that the proceedings through which the Rochester Gas and Electric Company was formed, and through which it subsequently acquired all of the stock of the Brush Company, “transmuted the stockholders of the Brush Company into stockholders of the Rochester Gas and Electric Company,” may be perfectly true; but the stock of the Brush Company never changed in form or amount. All that took nlace was a change of its ownership.

If it is true, as alleged in the complaint, that the Rochester Gas and Electric Company has “completely absorbed” the Brush Company and is infringing upon any of its rights, by the use of the patents which vrere assigned to it; or if it is, in other legally appreciable ways, violating any of its corporate rights, then the appellant, if his_contract with the company gives him such an interest in the corporation and such a standing in court as to enable him to assort his rights, or the rights of his company, is not precluded from seeking relief in a proper action. Whether his having ceased to be a stockholder (and he disclaims here any right of action in that character) affects his capacity to bring such an action, in assertion of the corporate rights of the Brush Electric Company, is a serious question about which grave doubts may be entertained, but which we are not called upon now, and which we do not undertake, to decide. The appellant’s action must fail, if there has not been that increase of capital stock which his contract contemplated and provided for and, as we think that no such change was effected by the transactions set forth in the complaint, it follows that the judgment of the general term, which reversed the interlocutory judgment overruling the demurrer of the defendants to the complaint, was correct and should be affirmed, with costs to the respondent; but with leave to the plaintiff to amend his complaint within twenty days after service upon his attorneys of a copy of the order entered upon our remittitur.

All concur, except Bartlett, J., not voting, and Haight, J., not sitting.

Judgment accordingly.


author: Bartlett, J.

text:
    Merritt A. Jones, Resp’t, v. Charles H. Butler, App’lt.

      (Court of Appeals,

      Filed April 30, 1895.)

    Corporation—Stockholders—Liability.
    The fact that the certificate of the payment of the capital stock was not recorded in the county clerk’s office, was held, in view of the defect in the specification of the statute as to the county office in which it was to he recorded, not to impose the liability prescribed by § 37, chap. 611 of 1875.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order which affirmed an interlocutory judgment in favor of plaintiff entered upon an order of special term sustaining a demurrer to parts of defendant’s answer.

      George G. Holt, for app’lt; Henry L. Brant, for resp’t.

       Reversing 63 St. Rep. 814.

   Bartlett, J.

The legal questions -presented in this case arise on demurrers interposed by the plaintiff to parts of the defendant’s answer for insufficiency.

The demurrers have been sustained below and the defendant appeals to this court upon the certificate of the general term.

The defendant is sued as a stockholder of the New York Advertising Agency, Limited, a corporation organized under the Business Act of 1875, to recover debts due plaintiff for services rendered on the ground that a certificate of the full payment of the capital stock was not filed in the clerk’s office of the city and county of New York.

Two demurrers were interposed, one to the eighth paragraph and the other to the tenth paragraph of the answer.

The eighth paragraph alleges, in substance, that the capital stock of said corporation was, in fact, fully paid in ; 'that the certificate of payment required by the statute was executed and filed in the secretary of state’s office at Albany; denies any knowledge whether said certificate was not filed in the New York county clerk’s office, but alleges that if not it was owing to clerical inadvertence, and that it has since been duly filed in that office.

The tenth paragraph alleges, in substance, that no action on the debt alleged in the complaint was brought against the corporation, or this defendant, or any person within two years after it became due.

It was admitted on the argument, under the decisions of this court, that the corporation had been dissolved during the two years after the debts became due and that a preliminary suit against the corporation was not necessary. Shellington v. Howland, 53 N. Y. 371; Kincaid v. Dwinelle, 59 id. 548 ; Hardman v. Sage, 124 id. 25 ; 35 St. Rep. 54; Hunting v. Blun, 143 N. Y. 511; 62 St. Rep. 804; Hirschfeld v. Bopp, 145 N. Y. 84; 65 St. Rep. 535.

In the view we take of this case it is unnecessary to examine many of the questions raised by the briefs and argued by counsel.

The plaintiff’s claim rests on the following facts, viz.:

The Business Act of 1875 (Laws of 1875, ch. 611) prescribes in section 37 the liability of stockholders. The material portions of that section are as follows :

“In limited liability companies all the stockholders shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company has been paid in and a certificate thereof has been made and recorded as hereinafter prescribed. * * * The directors of every such company, within thirty days after the payment of the last installment of the capital stock, shall make a certificate stating the amount of the capital so paid in, which Certificate shall be signed and sworn to by the president and a majority of the directors; and they shall, within the said thirty days, record the same in the office of the secretary of state, and of the county in which the principal business office of such corporation is situated.”

It will be observed that this section, read literally, requires the certificate to be filed in the office of the secretary of state, and, also, either in the office of the county or of the secretary of the county.

The New York Advertising Agency, Limited, was organized as a corporation May 3d, 1887; its entire capital stock was paid in December 31, 1888, within the period provided by law ; a certificate setting forth that fact was filed in the office of the secretary of state January 18, 1889, also within the period provided by law.

This action was not begun until July, 1893, and it is admitted that the certificate of payment of stock was not filed in the clerk’s office of the city and county of New York until after that time.

This case will be considered as if this last filing of the certificate had been omitted.

The plaintiff seeks to recover of the defendant a debt due from the corporation, notwithstanding the fact that four years and a half before he commenced his action the entire capital stock o'f the company had actually been paid in and a certificate announcing that fact filed in the office of the secretary of state, he insisting that it was the defendant’s duty to have construed the defective provisions of the statute; already adverted to, as requiring a certificate of paid-up stock to be filed in the office of the clerk of the city and county of New York.

It is upon this single, technical point the plaintiff rests his right to recover.

' The object of the statute whs to protect peisons giving credit to the corporation by requiring its capital to be paid in promptly and the fact announced to the world by a certificate filed, in a public office.

In the case at bar it must be presumed that the plaintiff was aware of the defective section, which was supposed to protect his rights as a creditor of the corporation. It was, therefore, his plain duty, if lie wished to ascertain the fact as to payment of capital, to have searched in the office of the secretary of state as the office of the county clerk was not designated by the statute in express terms; he would then have ascertained that the capital had been paid in and that the officers of the corporation had substantially complied with the law as it stood.

We do not intend to relax the rule which requires a corporation to comply strictly with the letter and spirit of the statute absolving its stockholders from the common-law liability of partners, but we do hold in the case at bar that it would be a gross injustice to require this defendant to pay the debt of a corporation which had substantially complied with the provisions of a defective statute simply because he did not construe a sentence wherein the legislature had failed to express itself intelligibly.

To permit such a recovery would be to make shadow substance and allow technicality to work injustice.

The judgments of the general and special terms are reversed and the demurrers overruled with one bill of costs.

All concur.

Judgment accordingly.


author: Finch, J.

text:
    George A. Cunningham, Resp’t, v. Albert Parker et al., as Executors, etc., App’lts et al., Resp’ts.

      (Court of Appeals,

      Filed April 30, 1895.)

    1. Devise—Condition.
    Where, in a devise upon condition that the devisee pay certain legacies within a stated time, there is nd provision for re-entry or forfeiture and nothing to support an inference that the estate was intended to depend upon the performance of such requirement, the words used will be held to import a covenant, and nota condition.
    2. Will—Charge.
    Where the testator, after directing payment of debts and expenses by the executor and bequeathing certain legacies, gives the rest, residue and remainder to such executor, the direction to him to pay does not operate to charge the debts upon the land.
    3. Decedent’s estate—Action against heirs, etc.
    In an action under § 1844, etseq. of the Code, the right of a purchaser in good faith and for value is explicitly saved and protected, though he claims under the heir or devisee.
    4. Same.
    Where, in order to secure a loan, a person takes, from the devisee a mortgage in good faith and without actual notice of unpaid debts of the decedent, the lien of the mortgage is valid and, as between the holder thereof and the, creditors of the decedent, the former is entitled to a preference in the payment of the mortgage out of the proceeds of the sale of the land.'
    Appeal from judgment of the .general' term of the supreme court in the third judicial department, entered upon an order which affirmed a judgment in favor oE plaintiffs entered upon a, decision of the court on trial at circuit.

      Emory A. Chase, for app’lt; John A. Griswold, for resp’t.
   Finch, J.

The plaintiff’s complaint is framed for a recovery under the provisions of the Code allowing actions against devisees or heirs at law for the purpose of applying real estate descended or devised to the payment of the general debts of the intestate or testator. There are two modes of reaching that result, differing in the form and character of the proceeding, and also in the scope of the ultimate relief. Within three years from the granting of letters creditors may apply to the surrogate by a petition setting forth the prescribed facts and asking for a sale of the land and an application of the proceeds. Such a sale carries the title of the decedents, unaffected by the acts of heirs or devisees, except that where no letters have been issued within four years after the death of the testator or intestate a purchaser or mortgagee from an heir or devisee in good faith and for value is protected. (Code, § 2777.) This proceeding was not taken by the creditors, and the prescribed three years having elapsed could not be taken, and so the creditors ■resorted to the second method provided and brought this action under section 1837 and those which follow. But the resulting ■sale has a greater respect for the rights of those claiming under the heir or devisee than is given by the proceeding within three years before the surrogate. If the land has not been aliened the •debt may be collected out of it, and the judgment as a lien has priority over a j udgment against the heir or devisee for his individual ■debt or demand (section 1852), but the right of a purchaser in good faith and for value is explicitly saved and protected although he claims under the heir or devisee. (Section 1853.) With this understanding we are prepared to consider the character of the remedy in its a°pplication to the facts disclosed.

The debtor and testator was Daniel Whitford. By his will he made a devise to his son Alexander in these words: “I give, devise and bequeath unto my beloved son Alexander Whitford all the rest, residue and remainder of my estate, both real and personal, ■of what nature or kind soever, to have and to hold the same to him, his heirs and assigns forever, on the condition and proviso that he pay to the above-named legatees respectively the legacies herein given within the period of four years after my decease, without interest; and the real estate so devised to my son Alexander Whitford is charged with the payment of the same.” This devise the son accepted and went into possession of the land, becoming thereby liable to payment of the legacies, amounting to about $1,000. Letters testamentary were issued to Alexander June 25, 1888. He borrowed of one Hamilton on April 1, 1890, the sum of $2,200, and secured the loan by his bond and a mortgage ■on the land devised, in which his wife joined. Hamilton is dead, but his executors defend in his behalf. Alexander is dead, leaving a widow and one daughter, El dora, who is made a defendant. After his death the heirs of Daniel claimed the land as forfeited to them because of Alexander’s omission to perform the condition of paying the legacies within the prescribed four years, and were let into possession under an arrangement not at all material since the mortgagee, whose rights are here involved, was no party to it and unaffected by it. Under a decree in this action the land has been sold, and the sole remaining controversy is over the priority of right in the proceeds as between the general creditors of Daniel and the holders of the Hamilton mortgage. The courts below have given the preference to the creditors, proceeding upon the theory that the devise to Alexander was forfeited and the land descended to the five heirs of Daniel, of whom Alexander was one, and that as to four-fifths of the land the Hamilton mortgage was never a lien.

It was conceded, at least by the respondent’s line of argument, that the judgment preferring the creditors to the mortgagee can only be sustained upon one of two theories ; either that Alexander lost the premises by forfeiture, or that the general debts were by the will charged on the land. In the one case the mortgage lien is gone as to four-fifths of the land, and in the other is made by the will subject to the priority of the creditors; but if neither prop-position be correct, it follows that the mortgagee, who has been found to have taken the security in good faith and for value and without actual notice of unpaid debts of the testator, can hold and enforce his lien against the creditors in the present action.

There is no room for reasonable doubt that the devise to Alexander, whether the condition of payment of legacies be deemed precedent or subsequent, did not involve a forfeiture as the consequence of a failure to pay. The whole subject was considered in Graves v. Deterling,. 120 N. Y. 447; 31 St. Rep. 695, and the authorities reviewed, and the existing rule was affirmed that where there is no provision for re-entry or forfeiture and nothing to support an inference that the estate was intended to depend upon performance of the condition the words used will be held to import a covenant and not a condition. Here there is no express provision for a forfeiture, no disposition consequent upon such a result or contemplating it in any manner, but on the contrary an explicit charge of the legacies upon the land.in the hands of the devisee.

Nor is there any reasonable doubt that the will in this case did not, by its terms or language merely, operate to charge the debts upon the land. The contention of the learned counsel for the respondent is that the will first directs payment of debts and expenses by the execntor, and then after bequeathing certain legacies gives the rest, residue and remainder to Alexander, who is made executor, and that thp direction to him to pay operates to charge the debts upon the land. There are some early cases which the learned counsel cites tending toward his conclusion, but the subject has been since discussed in this court in a great many aspects and the rule declared that such language, in and of itself, is not sufficient to produce the charge. In Matter of City of Rochester, 110 N. Y. 159; 17 St. Rep. 146, that was said although there was the usual formal clause directing payment of debts, a general residuary clause, and an appointment as executor of one of the devisees of such residue. And the general subject was further discussed in Brill v. Wright, 112 N. Y. 130; 20 St. Rep. 305. While it appears that at the death of Daniel Whitford his personal estate was insufficient to pay debts, it is not shown what his financial condition was when he made his will, or the disproportion, if any, between debts and assets. No such extrinsic facts were proved as to warrant the inference claimed, even if the question as to debts is identical with that as to legacies. Briggs v. Carroll, 117 N. Y. 288 ; 27 St. Rep. 468. • Indeed, the plaintiff’s complaint itself alleges that none of the debts were charged upon the land.

It follows that the distribution made proceeded upon a wrong principle and disregarded the rights of the mortgagee.

The judgment should be reversed so far as appealed from and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed.


author: By the Court.

text:
    William Nelson Cromwell, as Assignee, etc., App’lt, v. John B. Hughes, Resp’t.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Pleading—Admission.
    A party, availing himself of an admission of his adversary in a pleading, is at liberty to use it as far as it makes in his favor, and is not estoppeii from disproving the residue.
    Appeal by plaintiff from judgment entered on direction of trial judge dismissing the complaint.

      William J. Curtis, for app’lt; Hawkins & Delafield, for resp’t.
   By the Court.

The complaint alleges that the plaintiff’s assignors Decker, Howell & Co., as bankers and brokers, opened an account with the defendant for the purchase and sale upon commission of stocks and similar securities; that as such bankers and brokers they bought various stocks and securities for the defendant upon commission and expended various sums of money therefor at his request and on his account, and loaned him money from time to time at his request, in such manner and to such extent that on November 11, 1890, there was due to said firm from the defendant on account of such transaction $11,879.44. It is also alleged that after crediting the defendant with the proceeds of certain collaterals sold on the defendant’s account there remained abalance due to said firm from the defendant of $4,470.02, for which the plaintiff demands judgment.

The material allegations of the complaint were denied by the defendant, who pleaded as a second defence that about June 23, 1890,- he, the defendant, jointly with ten others named in the answer, entered into a syndicate, combination or pool to trade or speculate on joint account in the stock of the Louisville, New Albany & Chicago Railway Company, and for other purposes, and employed the firm of Decker, Howell & Co. to make the -purchases and sales on their joint account and that the balance alleged in the complaint to be due from the defendant is by reason of the purchases and sales on account of said pool.

Upon the trial the plaintiff offered in evidence an agreement signed by the defendant, in which the latter, after reciting that he ■desires to take an interest in the pool of not less than seven hundred shares of said stock, agrees to be responsible for said seven -hundred shares, upon condition that when enough agreements like that in question shall be delivered to Decker, Howell & Go. to make seven thousand shares of such stock in said pool, the ^agreement signed by the defendant shall take effect. This agreement is marked Exhibit 3 in the case, and shows a personal and individual responsibility on the part of the defendant, conditioned only upon Decker, Howell & Co. procuring ten others to enter into similar obligations.

At the trial the plaintiff invoked the benefit of the admissions ■contained in the second defence to the action, and then placed the ■defendant upon the stand and proved by him that Exhibit 3 was the agreement referred to in his answer. The plaintiff thereupon ■claimed that this writing coupled with the evidence of the defend.ant and the admissions in his answer, proved that the conditions upon which it was to become obligatory had been carried into effect; that is to say, that the pool agreement had been executed by the other ten persons as to the whole seven thousand shares, and hence the defendant’s writing had ripened into a binding obligation.

The trial judge held that the plaintiff could not avail himself of the defendant's admission to the effect that the pool agreement was entered into, without also accepting and being bound by the defendant’s conclusion that the agreement was a joint one. We think this was error. If the admission in the pleading had alone been relied on by the plaintiff the ruling might have been correct, but coupled with the evidence of the defendant and the production of Exhibit 3 we think it erroneous. A party is not bound by the admission of his adversary in a pleading, but is at liberty to use it so far as it makes in his favor, and to disprove the residue; that is, he is not estopped by it. Mott v. Consumers' Ice Co., 73 N. Y. 543, 550; Whitney v. Town of Ticonderoga, 58 Hun, 214; 24 St. Rep. 950; Abbot’s Tr. Pr. on Pleadings, p. 457 ; Algase v. Horse Owners’ Assoc., 60 St. Rep. 670.

It was not necessary to prove as against all eleven members of the pool that the agreement had gone into force; ten of them were not before the court. The defendant’s admission that they executed like agreements is all that is required to bind him' by way of proof of the fact; and, taken together with his identification of Exhibit 3, his admission dispenses with any further proof of the completion and going into effect of the pool agreement as far as he is concerned. We think this was the effect of the writing, evidence and admission construed together.

When the complaint was dismissed the case had not reached the,point where it might be intelligently decided whether the contract sued upon was against law or public policy; and this» question is not discussed on the respondent’s points. It is no't therefore before us in a manner to require further comment.

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

All concur.