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

text:
    ELIZA ANN SCHAFFER, Appellant, v. JOSEPH H. RISELEY, Respondent.

      Discharge of an imprisoned debtor by a sheriff under an order of a county judge — Code of Civil Procedure, secs. 2203, 2204 — when omissions, in the recitals of jurisdictional facts in the order, may be supplied by proof — if not recited or proved the order of discharge will not protect the sheriff.

    This action, brought against the defendant, a sheriff, for an escape, was defended by him upon the ground that the imprisoned debtor had been legally discharged. The plaintiff claimed that the order of discharge, introduced in evidence upon the trial, did not show jurisdiction in the county judge, as it failed to recite that the petition was “in writing,” “signed by the party,” or that a schedule was annexed thereto.

      Held, that the want of these allegations in the order was supplied by proof given upon the trial showing that the petition was in writing, signed by the party, and that the schedule was annexed.

      Bullymore v. Cooper (4G 1ST. Y., 236; affirming S. C., 2 Lans., 71).
    The order did not recite that the affidavit required by section 2204 of the Code of Civil Procedure had been made, and the proof showed that the affidavit used was made on February twentieth, while the petition was presented on March ninth.

      Held, that as the section above cited required the affidavit to bo “subscribed and taken by the petitioner on the day of the presentation of the petition,” the county judge had no jurisdiction to make the order, and that as the order of discharge contained no recital as to the making of such affidavit it did not orotect the sheriff. (Landon. J., dissenting.)
    Appeal from a judgment, entered upon a verdict rendered at the Ulster Circuit in favor of the defendant by the direction of the court.

      D. IF. Sparling and IFm. Loumsbery, for the appellant.

      John F. Gloonan, for the respondent.
   Learned, P. J.:

The defendant, a sheriff, is sued for an escape. Iiis defense is, that the imprisoned debtor had been legally discharged. And the only question is, whether the discharge was such as justified the sheriff in permitting the debtor to go free.

The order of discharge, it is claimed by the plaintiff, does not show jurisdiction in the county judge, in failing to recite that the petition was “ in writing,” “ signed by the party,” with a “ schedule annexed.” (Code Civil Pro., § 2203.) But it appeared on the trial that the petition was in writing, signed by the party, and with a schedule annexed. This proof supplied the want of those allegations in the order of discharge. (Bullymore v. Cooper, 46 N. Y., 236.)

The next defect alleged by the plaintiff is, that the order does not recite the making of the affidavit required by section 2204. The proof on this point shows that the affidavit was made February twentieth, and the petition was presented March ninth. This section of the Code now expresses that the affidavit “ subscribed and taken by the petitioner on the day of the presentation of the petition must be annexed,” etc. In Richmond v. Praim (24 Hun, 578) we were of opinion that, under the Revised Statutes, this affidavit might be previously made. The Code lias settled that point otherwise.

Section 2205, which provides for service of a copy of the petition and schedule fourteen days before presenting, says nothing about a copy of the affidavit. The mistake in this case must have arisen from supposing that a copy of the affidavit must be served, for the service was made February twenty-first. The county judge, therefore, had no jurisdiction; and as there was no recital of such affidavit in the order of discharge, there is nothing to protect the sheriff. This view has been illustrated by supposing that order of discharge contained no recitals whatever. It would not then protect the sheriff unless he could prove, in fact, the jurisdiction. And it must be noticed that the affidavit referred to is a part of the very first step by which jurisdiction is acquired.

The doctrine of Bullymore v. Cooper, above cited, is that the order of discharge must show the facts giving the court jurisdiction of the person and the case. (So Bennett v. Burch, 1 Denio, 141.) If the order does not show these facts, they may bo shown aliunde. There is nothing in conflict with this in Goodwin v. Griffis (88 N. Y., 629.) In that case there was evidence aliunde, and the case did not rest on the order only. Furthermore, the court held that the imprisoned debtor had not been liable to an execution against the body, and, therefore, the sheriff was not answerable for the escape.

The defendant insists .that the order recites that it was made after hearing the attorney for the plaintiff. But that recital implies no consent on his part. He may have opposed. He was not acting for the debtor.

It is with reluctance that we come to the conclusion that the order of discharge is not a defense, and that the proof of the proceedings shows that they were fatally defective. Undoubtedly the sheriff acted in good faith, and it is hard that he should suffer; but, on the other hand, the plaintiff has rights. She has her judgment and has a right to collect it by all legal means. The sheriff was bound to see that he did not let the debtor go until an order of discharge was presented, which conformed to the law and showed the jurisdiction of the court.

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

Mayham, J.:

I concur in the opinion of Learned, J. The order, on its face, does not recite jurisdictional facts to authorize the County Court to act in the premises. (Code of Civil Pro., §§ 2204, 2212) Nor does the proof aliunde supply the jurisdictional facts necessary to sustain the order. (Bullymore v. Cooper, 2 Lans. 71; affirmed in 46 N. Y., 236.)

Landon, J.

(dissenting):

It is a sad state of things when a court can lawfully punish a sheriff because the court itself has done wrong. Let it be conceded that the proceedings were not in conformity with the Code, because the affidavit was not made the day the petition and schedule were presented to the court, but on the same day that the petition was made, still the attorney for this plaintiff was heard upon the preliminary application and upon the final order. So both orders recite. The plaintiff had her day in court to oppose the order of discharge. She did not object to the jurisdiction, she specified no statutory omission; she opposed the discharge upon the merits, and upon the merits the discharge was made. A certified copy of the order was given to the sheriff. It recited this appearance of the plaintiff’s attorney. It was made by a court having jurisdiction of the general subject of the person of the insolvent, and of this particular case. (Develin v. Cooper, 84 N. Y., 410.) The order was such as section 2212, Cdde Civil Procedure, commanded the sheriff to obey. It was regular on its face. The plaintiff, who upon the merits could make no case against the prisoner, ought not to be heard in her unconscionable pursuit of the sheriff to urge a defect which, if made before the court at the first hearing, would have been immediately rectified, and which because not then made it is our duty to declare waived.,

The judgment should be affirmed, with costs.

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


source: Caselaw Access Project

author: Landon, J. :

license: Public Domain

text:
    JOHN D. GRANGE, Appellant, v. FRANK C. GILBERT and EDWARD H. GILBERT, Respondents.

      Practice — counter-claim—to be valid it must, if established, inevitably defeat or diminish the plaintiff’s recovery on the subject of the action — Code of Civil Procedure, sec. 501.
    The plaintiff alleged in his complaint that the defendants, by wrongfully excavating the channel of Grass river, threatened and were about to divert the water from his mills thereon, to his damage, and asked that they be enjoined from so doing, alleging his right to the use of the said water as it then flowed. The defendants set up in their answer two counter-claims. In the first they alleged that they were the owners of the right to the use of such of the waters of Grass river as for forty years prior to 1865 flowed through a certain canal; that plaintiff’s title was subordinate to such right; that in 1865 the plaintiff’s grantor, by wrongful excavations and constructions in the bed of the river, diminished the flow through defendants’ canal and increased it through his own, and that the plaintiff still maintained his grantor’s wrongful encroachment upon the defendants' rightful share of the water, to the defendants’ injury, and that the excavations of which the plaintiff complained were proper to restore to each his proper share of the water. In the second counter-claim they alleged that the plaintiff wrongfully stored and threatened to continue to store logs in the bed of the river, and in seasons of low water these logs obstructed the natural flow of the water into defendants’ canal, to defendants’ injury.

      Held, that as the claim set up by the first counter-claim was so connected with the subject of the action as that its successful establishment would inevitably defeat or diminish the plaintiff’s recovery, it constituted a valid counter-claim.
    That as the claim set up in the second counter-claim was not connected with the subject of the action, and its successful establishment would not necessarily defeat or diminish the recovery of the plaintiff, it did not constitute a valid counter-claim.
    Appeal from an order made at the St. Lawrence County Special Term overruling a demurrer interposed by the plaintiff to two counter-claims set up by the defendants in their answers.

      Chamberlain <& Hale, for the appellant.

      W. H. & George C. Sawyer, for the respondents.
   Landon, J. :

The plaintiff, by his complaint, alleges that the defendants, by wrongfully excavating the channel of Grass river, threaten and are about to divert the water from his mills thereon to his damage, and he asks to enjoin them. He alleges his right to the use of said water as it now flows.

The defendants answer by way of counter-claim and allege, first, that they are the owners of the right to the use of such of the waters of Grass river as for forty years prior to 1865 flowed through a certain canal; that plaintiff’s title is subordinate to such right; that in 1865 plaintiff’s grantor, by wrongful excavations and constructions in the bed of the river diminished the flow through defendant’s canal and increased it through his own, and that the plaintiff still maintains his grantor’s wrongful encroachment upon the defendants’ rightful share of the water to defendants’ injury, and that the excavations of which plaintiff complains are proper to restore to each party his proper share of water; second, that the plaintiff wrongfully stores and threatens to continue to store logs in the bed of the river, and in seasons of low water, these logs obstruct the natural flow of water into defendants’ canal to defendants’ injury. The defendants pray judgment that the plaintiffs be enjoined, etc., and for damages. The plaintiff demurs and assigns for grounds of demurrer, that these answers are not of the character specified in section 501 of the Code of Civil Procedure.

Section 501 provides that the counter-claim which an answer may contain, “ must tend, in some way, to diminish or defeat the plaintiff’s recovery,” and must, also, be a cause of action against the plaintiff in favor of the defendant * * * “connected with the subject of the action.” The subject of the action is not the injury threatened to the rocks or land in the bed of the stream, but the injury threatened to plaintiff’s alleged water rights. The defendants’ first answer is that the water rights claimed by the plaintiff do not, to the extent claimed, belong to him, but are in part the rights of the defendants, and which the plaintiff, by wrongfully continuing the original diversion of his grantor, now keeps and withholds from the defendants, to their injury. The defendants demand that the diversion shall cease and their proper rights be restored. Now, if the defendants establish their position they may altogether defeat the plaintiff’s recovery, for it may be that the only way to grant the defendants restoration, will be to permit the excavation in whole or in part, of which the plaintiff complains. The counter-claim is so “ connected with the subject of the action ” that the success of the one inevitably defeats or diminishes the recovery upon the other.

But these views require us to sustain the demurrer to the second counter-claim contained in the answer. The subject of the action is the injury threatened to plaintiff’s alleged water rights by defendants’ permanent excavations. That subject is not touched by an allegation that the plaintiff, by storing his logs in the mill-pond or stream, also impairs the defendants’ water rights. Grant that both causes of action exist, the right to recover by the defendant could not properly defeat or diminish the recovery by the plaintiff. The injury complained of by the plaintiff is a permanent injury to his water rights. The injury complained of by the defendants is, in its nature, temporary. These injuries do not affect the same property, and one may be repaired without affecting the other.

The order and interlocutory judgment should be affirmed as to the first counter-claim and reversed as to the second. The plaintiff may withdraw the demurrer as to the first and reply within twenty days; the defendant may withdraw or amend his answer as to the second counter-claim within the same time. No costs allowed either in this court or below.

Learned, P. J., Mayham, J., concurred.

Order affirmed as to the first, and reversed as to the second, defense, no costs to either party.


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

text:
    WILLIAM MOSHER, Respondent, v. HORACE RUSSELL and THEODORE HOUSTON, as Receivers, etc., Appellants.

      Evidence — the testimony of a physician as to the exclamations of a person, during an examination made eight months after the injury, are inadmissible — no recovery can be had for sufferings to occur in the future unless there is evidence in the ease to show that they will be sustained.

    Upon the trial of this action, brought by the plaintiff to recover damages for injuries sustained by being hit by a gate, maintained and managed by a railroad company at place where its tracks were crossed by a highway, he was permitted to prove by a doctor that more than eight months after the injury had been sustained the doctor examined the plaintiff for the purpose of determining his condition in reference to the injury. The doctor testified that the plaintiff “complained mofe or less of pain upon pressure about the neck, and pain when 1 attempted to move his head; ” that “ pressure upon the head, driving the head down upon the neck, caused pain, the patient winced, twisted, tried to get away from me.” At the time of this examination the doctor found no abnormal conditions of the plaintiff either from his personal examination or the application of tests by compass points or electricity, except such as appeared from the complaints and wincing of the plaintiff, and the scar on his forehead and ear.

      Held, that the court erred in admitting this testimony. (Per Mayham and Landon, JJ.; Learned, P. J., not concurring.)
    That the evidence could not be claimed to be admissible as part of the res gestee, as the complaints were made more than eight months after the injuries were sustained; nor from necessity as the plaintiff was a competent witness, and if his feelings, on being examined by the doctor, were competent or material evidence he could have been called on to swear to them.
    The judge charged the jury that the plaintiff was entitled to be fully compensated for all loss he had sustained, for the pain he has endured, and for the pain he was likely to endure in the future.

      Held, that as there was no evidence in the case from which the jury would have been justified in inferring that the injury was permanent, or one from which the plaintiff was likely to suffer in the future, it was error to so charge.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff at the Albany Circuit.

      H. Harris, for the appellants.

      JE. Newcomb, for the respondent.
   Mayham, J.:

The defendants appeal from a judgment entered upon the verdict of a jury for $6,000 for alleged injury to the plaintiff by being hit by a gate maintained and managed by the West Shore Railroad Company, of which defendant was receiver, across the highway at the railroad crossing near Coeymans, on the 4th of September, 1885. The plaintiff’s proof tends to show that on that day he was riding on a market wagon loaded with produce, and that while passing under the gate, which was hoisted, the same was let down by the defendants’ employe .in such a manner as to collide with the plaintiff and knock or scrape him from the wagon, by reason of which he was injured.

The evidence on the part of the defendants tended to show that the plaintiff in looking back after passing the railroad and after passing through the gate lost his balance and fell from his wagon, and that he was not hit by the gate. Upon this conflict of evidence the jury found with the plaintiff. On the trial the plaintiff was permitted to prove by Dr. Balch that on the 3d day of May, 1886, he examined the plaintiff for the purpose of determining his condition in reference to the injury complained of, and he testified that plaintiff “ complained more or less of pain upon pressure about the neck, and pain when I attempted to move his head.” The defendants objected to statements made at that time, and the objection was overruled and the witness proceeded: “ Pressure upon the head, driving the head down upon the neck, caused pain; the patient winced, twisted, tried to get away from me.” This was objected to by defendants as acts and declarations of the plaintiff made eight months after the injury, and the objection was overruled, and the defendant duly excepted.

The objection to this evidence was after the same had been given, and there was no motion to strike it out; but as the evidence seemed to have been given in narrative form, and no point raised that the objection came too late, it was probably in time to raise the legal question as to the admissibility of the evidence offered. At the time of this examination the doctor found no abnormal conditions of plaintiff, either from his personal examination or the application of tests by compass-points or electricity, except such as appeared from the complaints and wincing of the plaintiff and the scar on his forehead and ear, but from the evidence of the plaintiff’s complaints and wincing the jury were left to infer manifestations of continuing effects of the injury, and that must have been the object for which the evidence was offered.

It has long been settled as a rule of evidence that exclamations of pain and sufferings by a party receiving a physical injury were competent when made at or about the time of the injury, and this rule has been recognized since the enactment of section 398 of the Code of Procedure in 1869, and the various other subsequent acts, making parties competent as witnesses in their own behalf, and the same was adhered to in Hagenlocher v. Railroad Company (99 N. Y., 136), but in that case, as in most other cases upon that subject, the rule was confined to statements, exclamations and acts about the time of the alleged injury. The ground upon which declarations of this sort are admissible seems to be either that they constitute a part of the res gestae, or that they must be received from necessity to prevent a failure of proof, or that they are the involuntary exclamations of pain from the injury at the time of its infliction. In this case it could not be claimed that the complaints and •writhings eight months after the injury were a part of the res gestes, that was the injury at the railroad. It cannot be claimed competent from necessity, as the plaintiff was a competent witness, and if his feelings, on being examined by Dr. .Balch, were competent or material evidence he could have been called to swear to them.

It cannot be claimed that it was the involuntary exclamation of pain from the injury at the time of its infliction, for eight months had elapsed since the injury. In any aspect of the case we do not see how the complaints and writhings of the plaintiff, made and performed eight months after the alleged injury, can be competent as against this defendant. To treat them as competent evidence would, it seems to us, put it in the power of a party to manufacture evidence against his adversary that would not only be dangerous but subversive of well settled rules of evidence.

The defendants also insist that the learned justice erred in his charge to the jury upon the question of damages. The learned justice, in his charge to the jury upon that subject, says: “He (the defendant) is entitled to be fully compensated for all loss he has sustained — tor all pain he has suffered — not only suffered in the past, but he claims to be suffering now, and which he claims the evidence of the physicians fairly indicate that he will suffer during the residue of his life.” Again, after saying, in effect, that if the jury find by a preponderance of proof “ that the plaintiff is entitled to recover, you will award him such fair, just sum as shall fully compensate him for the loss he has sustained, for the pain he has endured and for the pain he is likely to endure in the future.”

To these propositions in the charge the defendants duly excepted. Two medical experts were examined on the trial by the plaintiff, but neither of them expressed any opinion as to the probable future effect of the alleged injury upon the plaintiff, and there appears to be no evidence in the case from which the jury would have a right to speculate or infer that the injury was permanent or one from which the plaintiff was likely to suffer in the future. We think, therefore, that the direction of the learned justice, as to pain or injury, which the plaintiff claimed the “ evidence of the physicians fairly indicated he will suffer during the residue of his life,” and for the pain he is likely to endure in the future, was within the authorities erroneous. Damages are to be proved and none can be allowed except such as are shown by the proof to be, at least to a reasonable degree, certain (Curtis v. R. R. Co., 18 N. Y., 534-542.) In the case last cited the court charged that the bodily pain which the plaintiff was likely to suffer, in consequence of the injury, could be considered by the jury, and the Court of Appeals say this was error which would have been fatal to the judgment if the judge had not subsequently modified the same.

In Strohm v. Western Railroad Company (96 N. Y., 306) the court say: “Future consequences, which are reasonably to be expected to follow an injury, may be given in evidence for the purpose of enhancing the damages. But to entitle such apprehended consequences to be considered by the jury, they must be such as in the ordinary course of nature, are reasonably certain to ensue. Consequences which are contingent, speculative or merely possible, are not proper to be considered in ascertaining the damages. It is not enough that the in juries received may develop into more serious conditions than those which are. visible at the time of the injury, nor present damages for apprehended future consequences there must even that theyare likely to so develop. To enable a plaintiff to recover be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.”

Tested by these rules it cannot be said that the evidence in this case justified the charge as to future damages from the alleged injury, and yet the charge was well calculated to lead the jury into a field of conjecture and speculation upon that subject, not based upon the evidence in the case but upon the claim of the plaintiff for damages for supposed prospective suffering, which might, and probably did, influence them in fixing the amount of their verdict.

If we-are right in our conclusions upon the points discussed, it is unnecessary to examine the other question raised by the appellant on this appeal as to the motion for a new trial upon the merits on the ground of excessive damage. .

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

Learned, P. J.:

I concur upon the second ground, but m examining a patient a physician must often depend on the apparent effect produced by pressing upon or touching some part of the body. ■ If the patient winces or cries out apparently with pain, this is reasonable evidence that there is tenderness of that part, and I should be unwilling to say that such indications of pain could not be testified to by the physician as a part of the result of the examination.

Landon, J.:

I concur on both grounds. Dr. Balch did not testify that, in his opinion, the plaintiff had any existing disability. -His examination was valueless unless it led to a conclusion. Any layman could have pressed or twisted the plaintiff and have seen him wince and heard him complain. I do not think the exclamations of the patient, in the absence of medical testimony that they were obvious indications of existing disability, were competent.

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


author: Mayham, J.;

text:
    NEW YORK AND LAKE CHAMPLAIN TRANSPORTATION COMPANY, Respondent, v. JOHN HURD and Others, Appellants.

      Evidence — a verified answer served by a defendant may be put in evidence, after an amended answer lias been served, as an admission made by Mm.

    Appeal from a judgment in favor of the plaintiff, entered in Washington County upon the report of a referee.
    This action was brought by the plaintiff to recover the amount claimed to be due it from the defendants under a contract dated the 29th day of April, 1884, between the plaintiff and defendants, by which the plaintiff agreed to transport all the timber of the defendants by boats from Rouses Point to the city of New York and points named in the contract during the season of navigation, via the Champlain canal. The contract fixed the compensation for transportation, and also stipulated the amount of damage to be paid by the defendants for each day after the first five days, after arrival at destination.
    To establish the plaintiff’s cause of action it introduced in evidence, against the objection and exception of the defendants, the original answer of the defendants in this action, duly verified, admitting the amount which plaintiff claimed to be due for transportation of the lumber. This admission was sought to be explained by one of the defendants upon the theory that at the time the answer was interposed the defendants were not fully aware of the facts. The referee found in favor of the plaintiff for $254.43 on account of freight, and $144 on account of damage, in all $394.43, with interest, upon which judgment was entered for the plaintiff, with costs, from which this appeal is taken.

      The court at General Term said: lC It is insisted on the part of the appellants that the admission of the original answer in evidence, under the objection of the defendants, was error for which this judgment should be reversed. It is apparent that that evidence bore upon a material part of the issue, and this court cannot assume that it did not affect the result, and if it was not competent evidence its admission would be error for which the judgment should be reversed. But upon what principle can it be rejected as incompetent % It was a declaration by the defendants, made with such deliberation and solemnity as to be conclusive upon them, if the original answer had not been superseded by the amended answer. It is true that by the service of the amended answer it lost its conclusiveness as an answer, and the party was no longer bound by it as such, but it, nevertheless, retained its character as an admission of a party and could be used as evidence against him, subject to being contradicted or explained by other evidence. There is no rule of evidence, nor do wo perceive any principle of right, that would be subserved by excluding a declaration of a party, not privileged upon some rule of public policy, from being used against him as evidence, and this view seems to be sustained by authority.
    In Strong v. Dwight, “ Balcomb, J., in granting a motion allowing the defendant to amend a verified answer, says: ‘ I hold * * * that the original answer in this case should remain on file and not be altered by the defendant’s amendments; and that the proposed amendments should be made by making, verifying and filing an entire new amended answer so that the plaintiff can use the existing original answer as evidence on the trial to prove the defendant’s admission that he now asks leave to have struck out.’ (Strong v. Dwight, 11 Abb. [N. S.], 325.)

      “ In Fogg v. Edwards, two questions were raised, first, whether the plaintiff could use, as evidence, an original answer which was superseded as a pleading by an amended answer, and second, whether the plaintiff could use that part which operated in his favor as an admission of the defendant and disprove by other evidence that which operated against him, and the court say : ‘"We think the original answer was properly received as evidence, under the circumstances. While the service of the amended answer had the effect to supersede the original as a pleading, it did not have the effect to render it inadmissible as evidence; it could be received for the latter purpose but subject to explanation. (Fogg v. Edwards, 20 Hun, 90; Bearss v. Coply, 10 N. Y., 93.) Within these cases we think the original answer was competent as evidence of an admission of the defendant, and its reception as such by the referee was not error.' "

      L. B. Bunnell, for the appellants.

      J. Bcmford Potter, for the respondent.
   Opinion by

Mayham, J.;

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NATHAN STRAUSS and Others, Respondents, v. MICHAEL COLEMAN and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants.

      Taxation — when the interest of a deceased partner in the firm assets cannot be assessed against his executors, as a debt due from the survivors.

    In November, 1885, one Jonas Strauss, residing in the city of New York and doing business in that city, and also in the city of San Francisco, died, leaving a will of which the relators were-appointed executors, which was duly admitted to probate in January, 1886. At the time of his death the said Jonas was a member of a firm carrying on business in San Francisco, the value of the interest of Jonas in the assets thereof, in November, 1885, being estimated at about $700,000. Before the value of the interest of the decedent in the firm had been ascertained, and before any accounting had been had between the relators, as executors, and said firm, or any money or assets of the firm had been received by them, the respondents, on the second Monday of January, 1866, assessed the relators, as executors and trustees, in the sum of $100,000 for personal property

      Held, that they erred in so doing.'
    That there was, at that time, no debt or obligation for the payment of money due and owing from the survivors of the California firm to the executors of their deceased' partner, within the meaning of those terms as used in chapter 392 of 1883, or section 3 of 3 Revised Statutes (7th ed.), 982, defining what property should be subject to taxation.

      Appeal from an order, made at Special Term, vacating an assessment for personal property made by the respondents.
    Jonas Strauss, residing in the city of New York, and doing business in said city and also in San Francisco, died in New York in November, 1885, leaving’ a will by which the relators were appointed his executors and trustees. The will was duly admitted to probate in January, 1886, and the relators, who also resided in New York city, duly qualified as the executors thereof. At the time of his death the said Jonas Strauss was 9. member of the firm of Levi Strauss & Co., of San Francisco, and of the firm of J Strauss, Brother & Co., of New York. The members of both firms were Jonas Strauss, Levi Strauss, estate of David Stern, Nathan Strauss, Jacob Stern and David Marks. The value of the interest of decedent in said firm in San Francisco had not been ascertained on the second Monday of January, 1886, nor had any accounting been had between the relators, as executors, and said firm with a view of ascertaining the value of such interest. On said last mentioned day the assets of said firm in Sari Francisco consisted of local securities of California, government bonds and stock in trade, all of which were in California, and on said 'day the respondents assessed the relators, as executors .and trustees, in the sum of $100,000 personal property. The value of the interest of Jonas Strauss in the assets of his firm in November, 1885, was supposed to be about $700,000, none of which had been paid over to the relators until after the second Monday of January, 1886. Between that date and April 24, 18S6, the relators received a little over $500,000 from the surviving members of the firm in San Francisco on account of the deceased member’s interest in the assets of the firm. On April 24, 1886, the relators, having objected to the assessment, had a hearing before the respondents upon the question of their liability, and in May, 1886, the respondents decided that the relators were liable to pay taxes on said assessed sum of $100,000. The relators then, pursuant to the provisions of the Laws of 1880 (chap. 269), obtained a certiorari to review such decision. Testimony was taken, and upon the submission, of the question to the court it was held that the assessment was illegal, and from the order and judgment thereupon entered this appeal is taken.

      George 8. Goleman, for the appellants.

      W. F. Severance, for the respondents.
   Van Brunt, P. J.:

The only question which is presented by this appeal is "whether or not on the second'Monday of January, 1886, there was a debt or obligation for the payment of money due and owing from the survivors of the California firm to the executors of their deceased partner exceeding $100,000. In determining the question it is necessary to consider for a moment the relations which surviving partners bear to the firm assets and to the personal representatives of the deceased partner.

In the case of Daby v. Ericsson (45 N. Y , 786-789) it is held that “ upon the death of one partner, the demands and choses in action of the copartnership belong to the surviving partners, and they possess the sole and exclusive right to reduce them to possession, and when recovered they stand as trustees for the' representatives of the deceased partner to the extent of his interest. The law not only vests the legal title to the choses in action in the surviving partner, but it cast upon him the duty to get in the debts and settle the affairs of the partnership. The jus accrescendi exists for this purpose.”

The surviving partners have, therefore, the whole legal title to the assets of the firm, but such assets, subject to the payment of debts, are impressed with alien in favor the representatives of the deceased partner to the extent of the share of the deceased partner in the firm’s assets, and, although the surviving partner is entitled to the possession of the whole of the assets of the firm for the purposes of liquidation, he is a trustee for that purpose and receives them impressed with the lien above stated ; and in case the surviving partner misconducts himself as a trustee, for the purposes of liquidation, and having disposed of old assets, invests the proceeds into new assets or stock, and mingles such purchases with stock bought upon his own credit so that the same cannot be separated, the lien above mentioned is impressed upon the whole stock to indemnify the trust fund except as against bona fide purchasers ot a.party having acquired a specific lien by the levy of an execution or attachment. And this right, acquired by lien, is carried so far tliat it may be enforced to the exclusion of the individual creditors of the surviving partner, whose debts may have been incurred in the purchase of the very stock mingled as stated above. (Hooley v. Gieve, 9 Daly 104, affirmed in Ct. of App. on opinion in court below, 82 N. Y., 625.) It would thus appear that the representatives of a deceased partner have something more tangible than a mere claim for an accounting against the surviving partner ; that they have a lien upon the firm assets to the extent of the deceased partner’s interest, which lien they may enforce, according to equitable principles. But does the liability of the survivors of the deceased partner constitute a debt or obligation for the payment of money ?

In the statute it seems to have been supposed that the words “ debts ” and obligations for the payment of money ” were applicable to different species of personal property, and that by “ obligations for the payment of money ” the legislature meant to describe written instruments for the payment of money, and not to the mere duty to pay money, which might be represented by the word “debt.” Did, therefore,- any debt exist on the second Monday of January, 1886, which was due or owing to the relators from the surviving members of the firm of the deceased ? The surviving members, as has been seen, were entitled to the possession of the whole of the firm’s assets for the purposes of liquidation and they became trustees for that purpose. The relators, it is true, had an equitable lien upon these assets to the extent of having them applied solely to the purposes of liquidation, but no further. They had no legal claim as long as the surviving partners conducted the liquidation in a proper manner, and could not in any way interfere therewith, and their legal claim arose only after it had been determined what the interest of the deceased was and a duty to pay over existed. The trustee was under no obligation to pay over, there was no debt due or owing by him to the representatives of the deceased partner until liquidation, until all the firm debts have been paid and until the interest of the deceased partner had been absolutely determined and fixed. When these things had been done, then a debt arose due from the surviving partners to the personal representatives of the deceased partner, which could be enforced.

In tbe case afc bar none of these things had been done at the time of the imposition of the tax, and hence no debt existed. It is true that there was an obligation resting on the surviving partners to liquidate the affairs of the firm, as trustees, for that purpose, which obligation the personal representatives of the deceased partner could enforce, even to the extent of claiming their equitable lien upon the firm’s assets as above mentioned; but such an obligation cannot be said to be an obligation for the payment of money, but rather an obligation to execute a trust. Therefore, stating the claims of the representatives of the deceased member of the firm in their strongest light, they do not seem to be either a debt or an obligation to pay money as these terms are used in the statute under consideration.

We notice in the points of the appellants that particular attention is called to the words debts due from solvent debtors, whether on accoumt, etc., as though the words “ debts due on account ” referred to a case like the present where a debt might result from an accounting. We think the word “account” is there used in its mercantile sense, and that it does not refer to those cases where a person is entitled, in equity, to have an account taken to settle the rights and interests of parties to a fund.

The order and judgment appealed from must be affirmed, with costs.

Bartlett, J., concurred.

Judgment and order affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MATTHEW TUCK v. STEPHEN B. FRENCH and Others, Constituting the Board of Police of the City of New York.

      Right of a member of the New York police force to apply- to be placed on the pension-rod — consolidation act, sec. 307, as amended by section 2 of chapter 364 of 1885 — he remains a member of the force until relieved by a vote of the board.

    Under the provisions of section 307 of the consolidation act, as amended by section 2 of chapter 304 of 1885, directing that any member of the police force who has or shall have performed duty therein for a period of twenty years or upwards, upon his own application shall, by resolution adopted by a majority vole of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund, the board has a reasonable time in which to determine whether the applicant is entitled to a pension, and the amount thereof; and until this has been done he remains a member of the force as much as he ever was, and is subject to the rules and regulations governing that force.
    Where a member of the force, who has served such a time and under such circumstances as entitles him to be relieved and dismissed from the force and placed on the pension-roll, elects to continue in the service and thereafter commits a breach of discipline which justifies his dismissal, he cannot escape the effect of such breach, by simply filing his application to be retired, after he has been suspended and notified that charges have been made against him.
    Appeal from an order denying tbe relator’s motion for a peremptory writ of mandamus, and dismissing tbe alternative writ.

      Samuel Untermeyer, for tbe relator.

      Dmid J. Dean, for tbe respondents.
   Van Brunt, P. J.:

On November 8, 1865, the relator, wbo is now fifty-six years of age, became a member of‘the police force, and continued to be a member of the force until October, 1SS6, nearly twenty-one years. On the 2d of October, 1886, the relator bad been guilty of conduct unbecoming an officer, in that be bad divested himself of his uniform and put on citizens’ clothing during bis tour of duty, and bad absented himself from his precinct without permission; he went to Mount Morris Park, and was there arrested by officers of the Park Department for disorderly conduct. On the next day, the third of October, be was suspended from duty by bis captain, and informed that charges bad been preferred against him, and bis suspension entered on the blotter of his precinct. On the 4th of October, 1886, the relator filed an application in due form, with the board of police, asking to be retired from the force and to be placed on the pension roll, in pursuance of section 18, chapter 410 of the Laws of 1882 as amended. On the same day written notice was given to the relator that charges had been' preferred against him, and a copy of the charges and specifications were served upon him, and be was notified that a public examination in relation to sucli charges would be made on the sixth of October. On the day fixed for the trial before the commissioners, the relator appeared with counsel, and, before any testimony was taken in support of the .charges, objected to the jurisdiction of the board to try him, and .demanded that the board then assemble and pass upon the application which had been filed by him for a pension. This application was refused, and testimony was thereupon introduced in support of the charges. The examination was adjourned, and upon the adjourned day the relator made the same demand, which, being refused, ,the relator left the court room and the trial was proceeded with in his absence, resulting in a decision that the relator was guilty of the charge preferred against him. At the time that the .alternative writ of mandamus was served, the trial was still in progress .and the board refused to comply with the writ, and proceeded with the trial, and on the eighth of October dismissed the .relator from the police department. Upon the return of the .alternative writ of mandamus, the motion was denied and the writ dismissed, and from the order thereupon entered this appeal is taken.

The relator claims that, from the moment that he filed his application for ^ pension, he was no longer a member of the police force, nor was he any longer subject to the jurisdiction of the police commissioners, and that the only action which they could take was to pass upon his application for a pension, and that, as they had no discretion in -reference to that matter, they were bound to pension him and could not discipline him for any act which had been done prior to the filing of his application. The provision upon which the relator relies is to be found in section 2 of chapter 364 of -the Laws of 1885 (p. 613), amending section 307 of the -consolidation act (chapter 410 of the Laws of 1882) so as to -read as follows: Any member of the police force who has, or shall have performed duty therein for a period of twenty years or upward, upon his own application in writing * * * ■shall, by resolution adopted by a majority vote of the full board, he relieved and dismissed from said force and service and placed on the roll of the police pension fund, and awarded and granted, .to be paid from said pension fund, an annual pension during his lifetime of a sum not less than one-half the full salary or compensation ■of such member so retired. * * * Pensions granted under this •section shall be for the natural life of the petitioner, and shall not foe revoked, repealed or diminished.”

Ifc is to be observed that the placing of the relator upon the pension-roll requires action upon the part of the police board. The board had to determine the question as to whether he was entitled to a pension under the law, and also the amount' of the pension. They had a reasonable time in which to determine these questions, and after that reasonable time had elapsed, if the relator was under the law entitled to a pension, they were bound to pass the resolution, relieving and dismissing him from the force and service. JBut until that was done he was a member of the police force as much as he had ever been, and subject to the rules and regulations governing that force. The relator, after he had served such time and under such circumstances as entitled him to be relieved and dismissed from the force for his services and placed on the pension roll, had the option to make the application and be relieved and dismissed or continued as a member of the force.- In the case at bar the relator elected to continue a member of the force, and while a member of the force he committed a breach of discipline which justified his dismissal. It cannot be that he can escape the effect of such breach of discipline by simply filing his application for a pension. As long as he elected to remain a member of the force he was amenable to the discipline of the board for dereliction of duty, and the board had the right to inflict the punishment provided for by law for such dereliction until he was removed from his membership in the force by a resolution duly passed by the board.

As has been observed by the opinion of the learned justice who heard the motion in the court below, it cannot be that a man accused and convicted of the gravest crime known to the law, committed while a member of the police force, is entitled to a pension, irrespective of any discipline or supervision of the board, merely because he has served for twenty years on the police force and has filed his application before the board has had an opportunity to act upon the charges made against him. In view of the fact that it was optional with the person entitled to a pension to apply after he had become entitled thereto, it certainly was not the intention of the legislature to relieve him from the rights of discipline which the board had over the members of the force. The .construction contended for would virtually place every member -of .the police force who had served the requisite time to entitle him to a pension beyond all discipline, for all that would. be necessary for such an officer to do in order to escape after having .committed the most gross breach of discipline would be to file his application for a pension.

For these reasons, as well as those contained in the opinion of the learned judge who heard the motion below, the order should be affirmed, with costs.

Brady and Daniels, JJ., concurred in the result.

Order affirmed, with costs.


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    RUTH A. POST, Respondent, v. MARY J. STOCKWELL, Appellant.

      Negligence — what facia do not establish the contributory negligence of the plaintiff— when an employee will be held to be acting in performance of his duty, in an action brought to charrge the master beccmse of his negligence.

    Upon the trial of this action, brought to recover damages alleged to have been caused by the negligence of a servant of defendant while engaged in her business, it appeared that the defendant was in the habit of sending Muller, one of her employees, to the premises occupied by one Fisher, to receive paper shavings which accumulated in his factory; that the shavings, packed in bags, were thrown from an upper floor, through a hatchway, to be received by Muller, who undertook to guard the hatchway and passage beneath to prevent the passing of persons while the bags were being thrown down by an employee of Fisher; that the plaintiff, who was ignorant of this use of the hatchway, and was not warned by Muller, was, while passing into the building in which she (plaintiff) was employed, struck by one of the bags and injured.

      Held, that the fact that the plaintiff knew that the hatchway was used for lówering paper and other things (although she had never seen bundles thrown down it), and that she knew that Fisher himself had fallen through it about two weeks before, did not show that the plaintiff was guilty of contributory negligence.
    That as Muller was engaged in his master’s service in receiving the paper, and participated in a method of receiving the same' which was dangerous to passers-by, his employer was liable for an injmy occasioned by his negligence.
    Appeal from a judgment m favor of the plaintiff, entered upon the trial of tins 'action by the court without a jury.

      J. E. Ludden, for the appellant.

      W. W. Badger, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages alleged to have been suffered through the negligence of a servant of the defendant while engaged in her business.

One Fisher was an occupant of premises No. 24 Vesey street, New York, and had been in the habit of selling to the defendant the paper shavings which accumulated in his, Fisher’s, factory. The defendant was accustomed to send bags to the factory, in which the shavings were packed, as they were made, a.nd on the morning of the accident one of Fisher’s servants had sent word to the defendant to send and take away a lot of paper which had accumulated there, and the defendant Muller, an employee of the defendant, was sent with a hand cart to bring away the paper. Upon reaching the premises, the paper being upon an upper floor of the building, was thrown down a hatchway to be received by Muller, who undertook to guard the hatchway and passage beneath to prevent the passage of persons, while Donohue, Fisher’s emyloyee, was throwing down said bags of paper. The plaintiff, in passing into the building in which she was employed, and being ignorant of this use of the hatchway, and not being warned by Muller, was struck by one of the bags and injured. It appears that the plaintiff knew that the hatchway over the entrance was used for lowering paper and other things (but had never seen bundles thrown down the hatchway) and that Fisher himself had fallen through it about two weeks before.

Upon the trial a motion was made to dismiss the complaint because it was shown that the plaintiff herself was guilty of contributory negligence. It is true that the plaintiff knew that her employer had fallen down this hatchway from an upper floor some two weeks before, but this fact hardly called upon her to suppose that in entering the building she was liable to encounter men falling down the hatchway. The knowledge of Fisher’s fall might have put the plaintiff upon her guard as to the danger of falling down’ the hatchway herself, but did not require her to exercise much greater care in passing in the building lest she might be fallen upon. It is also true that she knew that this hatchway was used for the lowering of goods from the upper floors to the ground floor, but she had no knowledge that the dangerous practice of throwing goods down the hatchway had ever prevailed, and she not only had no reason to anticipate such a danger, but every reason to suppose that such a danger did not exist as she had always seen goods lowered through the hatchway. The mere fact of seeing a man standing in the passage is not shown to have been such a strange phenomenon as would necessarily attract the attention of the ordinary passer-by, or that it was a circumstance calculated to attract attention or cause remark. The plaintiff having no reason to anticipate the danger which she encountered, does not seem to have been guilty of contributory negligence in entering the building in the ordinary way.

The next question involved in this appeal-is as to the liability of the defendant. It is claimed that Muller was not about his master’s business when he undertook to keep people away from the passage while Donohue was throwing down the bags. Muller was sent to get this paper and bring it away, and he undertook to receive it in this dangerous way, and it was because of his negligence in not keeping persons out of this passage-way while he was engaged in receiving the paper that the plaintiff was injured. In receiving the paper Muller was engaged in his master’s service, and if he participated in a method of receipt dangerous to passers-by, and an injury occurred, his employer is responsible. This was not an act of Muller outside of his employment; he was engaged in the very act for which he was sent, viz., receiving the goods. He knew that it was dangerous to receive them in that way, and he undertook to guard against that danger, and because he did not do so the accident occurred. Muller’s relations to the defendant were not changed because he assented to this dangerous method of receiving the goods at the suggestion of Fisher’s servant. He was engaged in their receipt, and it was for the purpose of receiving these goods that he was sent. It would seem, therefore, that the defendant was responsible for his negligence.

The judgment and order appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment and order affirmed.


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    SARAH M. MYGATT and ANGELINE E. DARLING, as Surviving Trustees for SARAH MATILDA MYGATT, etc., Respondents, v. GEORGE S. COE, Appellant.

      Purchaser at a sale on foreclosure — he may recover damages for a breach of a covenant of warranty contained in the deed conveying the properly to the mortgagor.

    In April, 1867, the defendant, Coe, conveyed certain premises hy a warranty deed to one Fisher, who, while in possession thereof, mortgaged the- same to the plaintiffs, and thereafter conveyed the same to one Fuller, who, in 1874, conveyed them to one Leavitt, who was, in 1878, ousted therefrom hy a party who recovered possession thereof under a claim of title paramount to the title conveyed hy Coe to Fisher.
    In an action commenced hy the plaintiffs in 1878 to foreclose his-mortgage a judgment was entered under which the premises were sold and conveyed to' the plaintiffs.

      Held, that as the plaintiffs thereby succeeded to Fisher’s rights, they were entitled to maintain an action against Coe to recover the damages sustained hy the breach of the covenant of warranty contained in the' deed.

      Christ Church v. Mack (93 ÍT. Y., 488) followed.
    Appeal by the defendant from a judgment rendered against Mm upon the trial of this action by tbe court without a jury.
    In April, 1867, Almira S. Coe and the defendant, George S'. Coe', lier husband, being in possession thereof, conveyed certain premises by deed, with covenants of warranty, to one Nancy Fisher, and delivered possession thereof to her. In December, 1869, Nancy Fisher, being in possession of the said premises,, mortgaged the same to the plaintiffs to secure the payment of $15,000. Nancy Fisher subsequently conveyed said' premises- to one Fuller, and in-1874 said Fuller conveyed the same to one Leavitt. In 1878 an action of ejectment was brought by the heirs of one Howell against said Leavitt, who was then in possession, in which action judgment of possession was rendered for the plaintiffs therein Upon the ground that the plaintiffs therein had a title paramount to that- conveyed by the Coes to Nancy Fisher, and possession was given to said! plaintiffs. In December, 1878, the present plaintiffs commenced! an action to foreclose the mortgage given to them by Nancy Fisher, and such proceedings were had therein that judgment of foreclosure and sale was entered on the 5th of June, 1879, and on the 14th day of August, 1879, the said premises were sold and the plaintiffs became the purchasers thereof, and. received the sheriff’s deed therefor. Thereupon this action was commenced against the defendant, George S. Coe, Almira S. Coe having died, to recover damages for breach of the warranty contained in the deed from the Coes to Nancy Fisher. Judgment having been entered in favor of the plaintiffs, this appeal was taken therefrom.

      William 8. Coggswell, for the appellant.

      Sidney 8. Harris, for the respondents.
   Van Brunt, P. J.:

The whole argument of the appellant seems to be based upon an erroneous view of the effect of the mortgage and foreclosure and sale thereunder to the plaintiffs. His argument demonstrates that the plaintiffs, by virtue of their mortgage alone, could claim no title in the land, and that a mortgagee holds simply a chose in action, secured by a lien upon the land, and that the mortgagor is for all practical purposes invested with the title. But the change effected by a foreclosure and sale under the mortgage seems to have been entirely overlooked. In the case of Christ Church v. Mack (93 N. Y., 488) the Court of Appeals decided that the effect of a foreclosure deed is to vest the purchaser with the entire interest and estate of mortgagor and mortgagee as it existed at the date of the mortgage. In other words, the same estate passes which the mortgagor could have conveyed by deed at the time of giving the mortgage. The case cited turned upon this question, and the point was distinctly and squarely presented and decided. If this is the law, then the plaintiffs, by the sheriff’s deed, acquired the same rights as though Nancy Fisher had conveyed the premises in question to the plaintiffs at the time of the giving of the mortgage, and it is not disputed that if she had done this the plaintiffs could have maintained this action. The claim that the only damages which the plaintiffs could recover would be the amount paid for the sheriff’s deed is not tenable. They succeeded to Nancy Fisher’s rights, and it might well be claimed that they had a right to recover the whole consideration mentioned in the deed to her.

The judgment appealed from must be affirmed, with costs.

Bartlett and Lawrence, JJ, concurred.

Judgment affirmed, with costs.


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

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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN C. TUCKER v. ALBERT F. D’OENCH, Superintendent of Buildings of the City of New York, Respondent.

      Construction of the act providing for the erection of buildings in the city of New York— chapter 410 of 1882, as amended by chapter 456 of 1885 — power of the boa/rd of examiners to permit an equally good or more desirable plan of construction to be adopted — the jurisdiction of the board can be attacked in a collateral proceeding.

    The relator, who was the owner of a two-story and basement brick building on West Thirteenth street, in the city of New York, being desirous of adding thereto two additional stories, thereby raising it from a height of forty feet to a height of eighty-tliree feet and six inches, prepared plans and specifications for the proposed alteration, from which it appeared that he did not intend to make the floors of the additional stories fire proof, as was provided in the laws relating to that subject, but intended to construct them of wood; these plans and specifications were presented to the respondent, the superintendent of buildings, who refused to issue his certificate allowing the additions to be made.
    After such refusal the relator applied to the board of examiners for permission to make the addition under the authority of that portion of section 504 of chapter 410 of 1882, as it was amended by section 31 of chapter 456 of 1885, which provides that “ in cases in which it is claimed by an owner, in person or by his representative, that the provisions of this title do not directly apply, or that an equally good or more desirable form of construction can be employed in any specific case than that required by this title, then such person shall have the right to present a petition to the board of examiners, and may appear before said board and be heard; and said board shall consider such petition in its regular order of business, and as soon as practicable render a decision thereon. The said board of examiners are hereby authorized and empowered to grant or reject such petition, and their decision shall be final. If such decision is favorable to said petitioner a certificate shall be issued by the superintendent of buildings in accordance therewith. ”
    The board of examiners having, by a vote of five to two, resolved to grant the petitioner’s application to build his building in the manner specified, and the defendant, who voted against the allowance of the application, having refused to issue the certificate, the relator applied for a writ of mandamus compelling him to do so.

      Held, that the application could not be maintained, upon the ground that the provisions of the act did not directly apply to the relator’s case, as the additions proposed to be made by him were clearly included and controlled by them.
    That the power to permit “an equally good or more desirable form of construction ” to be employed, was not intended to authorize the board to allow wood to be used in place of the incombustible substances mentioned in the act, but coilly to permit some other substance to be used, if any could be found, which .should appear to be tequally as good and more desirable than the iron and brick previously mentioned.
    That as no evidence had been laid before the board which tended to show that the proposed plan was equally as good and more desirable than that mentioned in the statute, the decision made by it was void for want of jurisdiction.
    That as this want of jurisdiction deprived the vote or resolution of the board of all authority, even when brought in question in a collateral proceeding, the application for a mandamus should be denied. (Brady, J., dissenting.) /Semble, that the other provisions of the law require the concurrence of both the board of examiners and the superintendent to authorize any modification of the building laws. (Per Van Brunt, P. J.)
    Appeal from an order made at Speeial Term denying a motion •for a peremptory mandatnus.

      Almon Goodwin, for tire appellant.

      William L. Findley, for the respondent.
   Daniels, J.:

The relator proposes to make additions to a brick building known .as 29 "West Thirteenth street in the city of New York. It is now two stories above the basement, and about forty feet in height. It is proposed by him to put on two additional stories, raising it to a height of eighty-three feet and six inches. The adjoining buildings on each side are about the same height. They have been erected with party-walls, to the expense of which the relator contributed, which appear to be sufficient to allow this addition to be made to his own building. In putting on the additional stories the material .of the front and rear walls will be brick and iron, and being free from combustible material will be without exception. But the floors of the additional stories are proposed to be made of wood, .and it is on that account that the respondent refused to issue his certificate allowing the additions to the building to be made. After such refusal an application was made to the board of examiners for permission to make the additions which the superintendent of buildings had refused to sanction. This application was made -under the authority of the consolidation act as it has been amended hy chapter 456 of the Laws of 1885, and to bring it within section .504 of the consolidation act, as it was amended by section 31 of the ¡act of 1885, it was stated in the relator’s petition to the board that an equally good and more desirable form of construction can be and is proposed to be employed by him than that provided for in other sections of the act. The examiners, in their action upon the petition, by a vote of five to two, resolved to grant the petitioner’s application, allowing him to make the additions to his building in the manner already mentioned. The superintendent of buildings was a member of the board, and one of the persons voting against the allowance of the application, and afterwards declined to issue the certificate, notwithstanding the vote which had been given in favor of the applicant. And it was to oblige him to issue the necessary certificate sanctioning the additions proposed to be made to the building that the application followed for the mandamus that was denied by the order from which the appeal has been taken, and whether the superintendent was legally right in his refusal to act is the point upon which the disposition of the appeal must depend.

By section 492 of chapter 410 of the Laws of 1882, as amended by section 21 of chapter 456 of the Laws of 1885, it was provided that buildings afterwards erected in the city of New York, exceeding seventy feet in height, should be fire-proof with brick walls and wrought or cast iron beams, or wrought iron columns with wrought iron beams, and filled in with what would be fireproof materia] between the beams. And by section 498 of the act of 1882, as it was amended by section 27 of the act of 1885, it was declared that no building, already erected, should be enlarged^ raised, altered or built upon in such a manner that, were such building wholly built or constructed after the passage of this act, it would be in violation of any of the provisions of this title. These two sections required the additions proposed to be made to tire relator’s building to be constructed substantially in the manner described therein, which would render it fire-proof. It was, however, provided by section 504 of the act of 1882, as it was amended by section 31 of the act of 1885, that the superintendent, with the consent and approval of the board of examiners, should be at liberty “ to vary or modify the provisions of this title, upon application therefor in writing only in case of alteration of old buildings, or the use of party-walls, belonging to different owners, where the same cannot be taken down, and where there are practical difficulties in the way of carrying out the strict letter of this law, so that the spirit of the law is observed, the public safety-secured and substantial justice done.” But the relator did not proceed under this portion of the section ; neither could he do so, for that required the concurring action of both the superintendent and the board of examiners. "What he did do was to apply under the succeeding portion of the section which declares that ‘‘ in cases in which it is claimed by an owner in person, or by his representative, that the provisions of this title do not directly apply, or that an equally good and more desirable form of construction can be employed in any specific case than that required by this title, then such person shall have the right to present a petition to the board of examiners and may appear before such board and be heard, and said board shall consider said petition in its regular order of business, and, as soon as practicable, render a decision thereon. The said board of examiners are hereby authorized and empowered to grant or reject such petition, and their decision slialL be final. If siich decision is favorable to said petitioner a certificate shall be issued by the superintendent of buildings in accordance therewith.” It was stated in the petition that the provisions of the act did not apply directly to the case of the petitioner, but no facts were disclosed which would render it inapplicable. The sections already referred -to, on the contrary, show that they were applicable to the case of the petitioner, and by clear language included and controlled the additions proposed by him to be made to his building. From this part of the section, therefore, he could derive no possible advantage, and the case remained to be considered upon the affirmation that an equally good and more desirable form of construction can be and is proposed to be employed by him. No evidence seems to have been taken by the board of examiners in support of this affirmation, but the board acted upon the petition itself, and the answers returned by the relator to the questions presented to him, accompanying his application for liberty, to make the 'additions to his building, and by those answers the fact was clearly disclosed that the floors designed to be added in carrying up the building are to be constructed of wood, and it was such floors that the board of examiners must have considered in the vote taken by its members, to be a more desirable form of construction than that prescribed by the preceding sections of this act. This was very clearly a misapprehension on the part of the voting majority of the board of examiners, for it wiH readily be seen that a construction of the floors by beams and lumber is not equally as good or more desirable than a construction in the form prescribed by the provisions of the statute, requiring that to be of iron and other fire-proof material. The statute conferred no authority on the examiners to allow combustible material to be used in place of the incombustible substances mentioned and referred to in its preceding sections. It was entirely obvious that it was not the intention of the law to allow the examiners to permit wood to be used in place of fire-proof material; but what was intended was that they might permit some other substance to be used which should appear to be equally as good, if that could be found, and more desirable than the iron and brick previously mentioned. What that might be was not defined by the act, but this part of it was enacted in such flexible terms as to include such material if it should afterwards be discovered or found. It ivas not to permit the mode of construction allowed before this law was enacted to be followed in the erection or the extension of so high a building, but still to require that to be made fire-proof, either by employing the material already prescribed or some other that might afterwards appear to be equally good and more desirable. But, in any event, the building has been required to be made fireproof. No such mode of constructing the additions to the building was made to appear before the examiners; hut what they were applied to for was liberty to construct the internal portions of the additions with wood, and the right to do that the statute did not include within the authority conferred upon the examiners. It gave them no power to extend liberty to the ajiplicant to make the additions of wood and timber, but only to allow such additions to be made in an equally good and more desirable form of construction than that previously mentioned in the act. And it was to ascertain whether the additions could be made in an equally good and more desirable form of construction, but still of fire-proof material, that the board were empowered to hear the petitioner, and upon that hearing were to consider the petition and render a decision thereon which should be final. Not that the preceding mode of construction, which it was the object of the statute to disapprove and condemn, should be restored and used, but whether the additions could be made fire-proof in some equally good and more desirable form than that which the legislature by the act described. This inquiry the examiners evidently failed to pursue, for there was nothing before them upon which they could say or decide that an equally good mode of making the additions had been mentioned and described by the petitioner, to that previously prescribed by the statute; and having nothing before them sustaining that inquiry, or a decision to be made upon it, what they did do was without the authority of the law, and although they made the decision which they did, as it was without authority, it was beyond their jurisdiction and of no force and effect by way of supporting the application which was made for the writ.

Before they could extend this liberty to the petitioner, it was necessary that they should have some evidence before them, even though it might be slight, that the manner in which it was proposed to make the additions was equally as good and more desirable than that mentioned in the statute, which consisted in the use of incombustible materials. They had no such evidence, and the decision which they made was, for the want of it, without jurisdiction. (Staples v. Fairchild, 3 Comst., 41, 46; Van Alstyne v. Erwine, 1 Kern., 331, 370; Skinnion v. Kelley, 18 N. Y., 355, 356; Frees v. Ford, 2 Seld., 176-178.) And this want of jurisdiction deprived the vote or resolution of the board of all authority, even when it may be brought in question, as it has been now, in a collateral proceeding. (Roderigas v. East River Savings Institution, 63 N. Y., 760-764; Cagwin v. Town of Hancock, 84 id., 532-571; Davidsburgh v. Knickerbocker Life Ins. Co., 90 id., 526-530.) And as the decision of the examiners was without authority of law and not within the power by the statute committed to their jurisdiction, as long as it gave them no authority to substitute combustible for incombustible material, it failed to support the application for the writ of mandamus, and the order should be affirmed, with costs.

Van Brunt, P. J.:

I cannot concur with Mr. Justice Brady in the conclusion to which he has arrived upon this appeal. The construction put upon the building act in his -opinion seems to me to render nugatory some of its most positive provisions. Section, 492 of the consolidation act (chap. 410 of 1882), as amended by chapter 456 of 1885, section 21, provides that “Every building hereafter erected (for which plans have not been heretofore filed), the height of which exceeds seventy feet, shall be built fire-proof.” Then follow provisions regulating the use, composition and perfection of manufacture of metal columns, of brick arches, and other material to be used in the construction of su ch fire-proof building. Then follows section 498, which provides as follows: “No building already erected or hereafter to be built in said city shall be enlarged, raised, altered or built upon in such manner that were such buildings wholly built or constructed after the passage of this act it would be in violation of any of the provisions of this title.”

The effect of these provisions seems to be that no building' erected before the passage of this act can be raised beyond the height of seventy feet without the same is made fire-proof. The building in the case at bar has never been raised above forty feet in height, but upon either side have been constructed buildings having party walls of the height of eighty-five feet, which were constructed at joint expense upon the land of the relator and his neighbors, and the relator proposes to raise his buildings to the height of eighty-three feet. Applying the provisions of section 498, if such addition is made it must be fire-proof. "We are then brought to the question as to whether there is any provision in the act referred to, in pursuance of which the right of the law as to the fire-proof character of future constructions exceeding seventy feet in height can be abated. Section 504 provides that the superintendent of buildings shall have power to vary or modify the provisions of this title, upon application therefor in writing, only in case of alteration of old buildings where the same cannot be taken down, and where there are practical difficulties in the way of carrying out the strict letter of this law, so that the spirit of the law is observed, the public safety secured and substantial justice done.

This portion of this section seems to confer upon the superintendent of buildings in the case of the alteration of old buildings, and in such a case only, authority to vary or modify the provisions of this title where such variation or modification does not contravene the spirit of the law or endanger the public safety, arid is consistent with public justice. But the superintendent of buildings cannot permit these variations or modifications solely guided by his own judgment. Before the superintendent can permit these modifications he must get the approval of a board of examiners, constituted as the law directs, to the proposed modifications. The act says. “ But no such deviation shall be permitted except a record of the same shall be kept by said superintendent of buildings, and a certificate be first issued to the party applying for the same; such certificate shall not be issued until a board of examiners (here follows the provisions as to the composition of the board of examiners) shall also approve the proposed modifications of the law.” This makes a complete system in respect to old buildings which it is desired to raise to a height above seventy feet. Neither the board of examiners alone nor the superintendent of buildings alone can waive any of the provisions of the law; both the board and the superintendent must concur in the opinion that the proposed modification is consonant with the spirit of the law, and does not endanger the public safety, before the stringent provisions of the law can be waived. Either may put a veto upon the issuance of such a certificate. The legislature did not intend that this extraordinary power should be used unless grave necessity require it.

These provisions seem to be a complete system having relation to the alteration of old buildings, and to apply directly to the case of the relator. Iiis application was to be permitted to “ alter an old building” by raising it from forty feet to eighty-three feet in height. It involved “ the use of party-walls belonging to different owners,” and the claim was that there were “practical difficulties in the way of carrying out the strict letter of the law.” But it is said that the legislature meant nothing by the foregoing provisions, and that in any case the board of examiners may alone authorize the issuance of the certificate if the applicant only says in his petition that the provisions of this rule do not directly apply.

The language upon which this extraordinary claim is founded is as follows: “ In cases in which it is claimed by' an owner, in person, or by his representative, that the provisions of this title do not directly apply, or that an equally good or more desirable form of construction can be employed in any specific case than that required by this title, then such person shall have the right to present a petition to the board of examiners, and may appear before said board and be heard ; and said board shall consider such petition in its regular order of business, and as soon as practicable render a decision thereon. The said board of examiners are hereby authorized and empowered to grant or reject such petition, and their decision shall be final. If such decision is favorable to said petitioner a certificate shall be issued -by the superintendent of buildings in accordance therewith.”

It will be seen that, if the language is construed literally, the claim, extraordinary as it appears, is well founded. The statute does say, in so many words, that all that is necessary to avoid the veto power, so carefully given to the superintendent of buildings, in respect to modifications of the law, so far as it affects alterations in old buildings is for the owner to claim in his petition that the provisions of the law do not directly apply to his case and that then all the barriers so carefully erected by the legislature against modifications have been successfully evaded and the board of examiners are all powerful and utterly independent of the superin tednent of buildings. It is, however, a well settled rule in the construction of statutes that the legislative intent must govern even where such construction seems to run counter to the letter of the law.

In People ex rel. Wood v. Lacombe (99 N. Y., 43 at page 49) the court says : “ In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is wdthin the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation ; and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the law makers. These general rules are upheld by numerous authorities. (People ex rel. Twenty-third Street R. R. Co. v. Commissioners of Taxes, 95 N. Y., 558; Burch v. Newbury, 10 id., 389; Oswego Starch Factory v. Dollaway, 21 id., 461; People v. N. Y. C. R. R. Co., 13 id., 78; Donaldson v. Wood, 22 Wend., 397; Watervliet Turnpike Co. v. McKean, 6 Hill, 619, 3 Bingham’s R., 193; Commonwealth v. Kimball, 23 Pick., 370.)

In the case quoted from the court, applying the rule stated, held that the legislature’s declaration that the act in question should take effect “ January 1, 1885,” should be read as if it said “ January 1, 1885, at twelve o’clock, noon.” (See 99 N. Y., 54.) In Burch v. Newbury (supra) the words “first day of July” were read as “first Monday of July.”

In People ex rel. Twenty-third Street Railroad Company v. Commissioners (supra), and Oswego Starch Factory v. Dollaway (supra), the Court of Appeals rejected the literal words and interpretation of the acts relating to the taxation of corporations and rejected their specific requirements, because otherwise the intent of the legislature to subject them to taxation on the actual value of their capital would be defeated.

The legislature could never have intended to stultify itself by providing in the act in question that all that it was necessary to do to evade the law is to have the owner say that the law does not apply, and therefore the inquiry arises, what did the legislature mean. It seems to me that they did not in any manner intend to interfere with the provisions in respect to alterations of old buildings ; that all that was intended was to give the board of examiners, in cases to which the law did not apply, and in those cases to which the law did apply but a form of construction varying from the one required in the act was proposed, which, in their judgment, was equally good and more desirable from the peculiar circumstances of the case; but being also fire proof, that being an absolute requirement, the power to authorize the issuance of a certificate, although it was not proposed to comply with the strict letter of the law.

This construction gives full force and effect to all the provisions of the statute and relieves the statute of its seeming incongruities But it is claimed that the statute says that the decision of the board of examiners shall be final; that they are to be the sole judges as to whether the statute applies or not, as well as sole judges as to whether an equally good or more desirable form of construction is proposed. It is true that the action of the board may be final in these cases in which they acquire jurisdiction, but the legislature certainly did not intend that simply because an owner may state in his petition that the law does not apply, when it is perfectly clear that it does, that the board of examiners can repeal the whole building law and cause to be issued a certificate; which seems to 'me to be the claim of the appellant in the case at bar. Duo force can be given to every part of the statute without conferring such extraordinary powers, which powers are utterly inconsistent with other parts of the act and operate virtually to give the board of examiners the power to repeal all the provisions of the building law. It seems to me, therefore, that the building, and proposed alteration thereto' of the relator, comes directly within the provisions of the building law relating to the alteration of old buildings, and that no certificate can issue without the concurrent action of the superintendent and board of examiners.

The order appealed from should be affirmed, with costs.

Brady, J.

(dissenting):

The appellant is the owner of a building known as No. 29 West Thirteenth street in this city, which is twenty-five feet in width, one hundred and three feet in depth and forty feet in length, the outer walls being of brick, stone and iron. Designing to alter it by raising it, he submitted to the superintendent of buildings specifications and plans for the proposed alterations, by which it appeared that he did not intend to make the additional structure fire-proof, as provided by the laws on that subject, and the superintendent, therefore, disapproved of the project. Subsequently the appellant presented a petition on the subject to the board of examiners, in accordance with and by authority of the act of 1885 (chap. 456, § 31), and that board granted the petition. It was asserted in the petition that the provisions of law relating to such alterations did not aj>ply, and that an equally good and desirable form of construction could be and was proposed to be employed by him, as shown in the application. (Schedule B.”) This was done in order to meet one of the emergencies anticipated by the section mentioned, and which expressly provides for such a procedure, authorizing the board to grant tlie petition, notwithstanding the apparent departure from a strict compliance with the law, when it appears either that its provisions do not apply to the particular case or an equally good and desirable form of construction can and is to be employed.

The learned justice in the court below, however, refused to grant a mandamus to compel the superintendent of buildings to issue a certificate enabling him to avail himself of the action of the board of examiners in his behalf, and hence this appeal. He seems to have been controlled in his judgment by the requirements as to fireproof construction and the assumed absence of any offer of an equally good form of construction as to that element of the application, and said, substantially, that reasons were given in aid of the superintendent’s refusal to approve.

In this he seems to have been in error, inasmuch as it is distincty alleged in the petition that an equally good form of construction was proposed, as shown in the application, referring to schedule “ B,” which does not appear in the papers, unless the application designated “ I) ” is the one intended. The board, however, having passed upon the petition, with the proposed plan before it and it must be assumed after due consideration of its fitness, has this court the power to reverse its action. It is thought not, inasmuch as the section declares that it shall be final. The object of creating the board, and of permitting a departure from the strict letter of the law was to invoke the judgment of competent persons upon the proposed departure, whose experience and capacity thus secured and employed, would insure the public safety notwithstanding the permission given ; and it must be assumed that the legislature contemplated structures which should be allowed to avoid the injustice or hardship which might ensue if the laws were rigorously applied. It was evidently intended, also, that the decision of the board should be final, not only because it is so expressly declared, but in order to make the proceeding summary, and thus prevent delay in the consummation of the enterprise contemplated. Doubtless this court, if it had the power, would, on the papers presented by the record, have withheld its approval, if the application had been presented here in the first instance, the provisions as to fire-proof constructions commending themselves as valuable, wise, protective and important, and rarely to be departed from, but the legislature have given to others the authority invoked by the appellant, and successfully.

For these reasons, treating the question considered as one of power, it is thought the order appealed from should be reversed and a mandamus ordered. No costs are, however, given to either party of this appeal.

Order affirmed, with costs.


text:
    BEZALEEL H. DUPIGNAC, Respondent, v. GEORGE W. VAN BUSKIRK, as Executor, etc., of CATHARINE ANN DUPIGNAC, Deceased, and ALMIRA VAN BUSKIRK, Appellants.

      Practice — all motions affecting the rights of parties, in actions triable in the first judicial district, must be made therein— Code of Civil Procedure, sec. 7C9.
    At the time of the commencement of this action, in the county of New York, another action between this plaintiff and the defendants herein and others was pending in the county of Kings. While a motion for a temporary injunction was pending in this action a motion was made, in the action in Kings county, to consolidate the two actions and direct that the trial should be had in the county of Kings, which motion was heard in the county of Kings and granted.

      Held, that the justice in Kings county had no power to make the order, as it affected the rights of the parties in this action and violated the provisions of section 769 of the Code of Civil Procedure, prohibiting the making of any motion, in an action triable in the first district, in any other district.
    Appeal from an injunction order, made and entered in the above entitled action, in the county of New York.

      Anthony B. Dyett, for the appellants.

      Louis G. Wachner, for the respondent.
   Van Brunt, P. J.:

This action was pending in the county of New York. Another action was pending between this plaintiff and these defendants and others in the county of Kings. , A motion was made in the action in the county of Kings to consolidate the two actions and to direct that the trial should be had in the county of Kings, which motion was heard in the county of Kings and granted. At that time a motion for an injunction was pending in this court, which was heard, notwithstanding the order which had been made in the action in Brooklyn, and from the order then made this appeal is taken. As has been said by Mr. Justice Lawrence, in his opinion in respect to the validity of the order made in Kings county, removing this case to that county and consolidating it with the action pending in Kings, section 76y of the Code prohibits the making of any motion in an action triable in the first district in any other district. Therefore the learned justice, in the motion in Kings county, was entirely without jurisdiction as far as this action is concerned, and the order made therein was void. If it is claimed that the court had jurisdiction to hear the motion in the action in Kings county, it ú clear that in that action the court had no power to make an order affecting the rights of the parties in the action pending in this county. Orders can only be made which affect the substantial rights of a party to an action in the action itself, and, therefore, if these actions were to be consolidated, the motions must be made in both cases.

It is urged that if this rule applies, then, merely because the venue is laid in different counties, no motion for a consolidation can possibly be made, although it may be entirely proper that a consolidation of the action should take place. It is sufficient to say, in answer to this suggestion, that if it was proper that the actions should be consolidated, it would certainly be proper that they should be tried in the same county; and upon a motion having been made to change the venue, if it was proper that the actions should be consolidated, the venue of one of them should be changed to the county in which the other was pending, in order that such motion for consolidation might be heard. Certainly, as far as the action pending in the county of New York was concerned, no motion could be heard affecting such action outside of the county, unless the express prohibition of the Code is violated.

The order appealed from should be affirmed, wiih ten dollars costs and disbursements.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disoursements.