author: Dykman, J. Cullen, J.

text:
    Henry H. Adams, County Treasurer, Pl’ff, v. The East River Savings Institution, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Constitutional law—County bonds.
    Under the provision of § 11 of art. 8 of the constitution, a city and the county in which it is situated may each incur debt to the extent of ten per cent of the assessed value of all the taxable real estate within it. The restriction provided by that section is separate and distinct as to each.
    Submission of controversy without action.

      John B. Meyenborg (W. C. De Witt, of counsel), for pl’ff; C. F. Birdseye, for def’t.
   Dykman, J.

—A controversy has arisen between the parties to this action, which has been submitted to the court for determination upon a conceded state of facts, of which the following is a substantial recitation:

The county of Kings contains the following political subdivisions, namely:

The town of Flatbush.

The town of New Utrecht.

The town of Gravesend.

The town of Flatlands, and

The city of Brooklyn, which city contains over 100,000 inhabitants.

■ Under the authority of several statutes pertaining tp the county of Kings, the plaintiff, as such county treasurer, in the month of April, 1892, offered for sale the bonds of the county, amounting to $620,000.

Bids in excess of that amount were received, and the defendant in this action bid for $90,000 of such bonds, which were awarded to it, to wit: $90,000 at $91,104, which had been so bid by it therefor.

The defendant thereupon gave its check to the plaintiff for the sum of $91,104, but stopped its payment the next day and refused to complete its purchase, assigning as a reason for such refusal- the invalidity of the bonds by reason of their prohibition by the constitution of the state, the specific objection being that they were in excess of the constitutional limitation of the indebtedness of the county.

The plaintiff retained the check of the defendant and claimed the right to collect the same upon a tender of the bonds, while the defendant desires the return of the check and relief from obligation to receive the bonds.

These adverse contentions gave rise to the two following questions, which are submitted to the court for judicial answers:

First Is the issue, or proposed issue, of the bonds offered for sale, as herein stated, in violation of the constitution ?

Second. Is the plaintiff entitled to collect the amount of said check from the defendant" upon tendering to it the said $90,000 of bonds, or is the defendant entitled to the cancellation and return of its said check?

The answer to these questions is to be dictated by § 11 of article 8 of the constitution of the state of New York, and the portion of that section which directly applies to the present controversy is this : “ No county containing a city of over 100,000 inhabitants, or any such city, shall be allowed to become indebted for any purpose or in any manner to an amount which including existing indebtedness shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment rolls of said county or city on the last assessment for state or- county taxes prior to the incurring of such indebtedness,.and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void, except as herein otherwise provided.”

The excepted provisions are immaterial here.

The section as it now stands was adopted by the people in November, 1884, and went into operation the January following.

The language employed in the construction of thq section is significant and expressive. The first word of the sentence quoted is a term of denial, expressing a negative, and applies to counties containing a city of over 100,000 inhabitants, while the uniting word “ or ” is a disjunctive conjunction, connecting the two clauses, and expressing at the same time a separation, and has the same effect where it stands as the word “nor.” It dis-joins the one from the other and applies the limitation individually, the same as if the sentence had been constructed as follows: Neither a county containing a city of over 100,000 inhabitants, nor any such city shall be allowed, etc.

It must be remembered that we are here dealing with a restriction and not with a grant of power. The legislature has bestowed the power upon the county to contract the debt and issue the bonds in question, and they are valid if their issuance was not inhibited by the constitution.

The powers of the general government are derivative and enumerated in the constitution of the United states, and when we examine that instrument we search for grants of legislative power either express or implied, but when a state law falls under examination, we look for limitation, because the presumption is in favor of the validity of the statute.

Such presumption arises from the absolute power of the legislature as the representative of the people in their sovereign capacity, except so far as it is restrained and. limited by the constitution, which is the paramount law.

In a general way of speaking we usually say the people are sovereign and the source of all political power, and when they form a government they may invest it with all the sovereign power which they possess, and the presumption is that they do so in the absence of evidence to the contrary.

But as the people do limit the state governments which they set up and also themselves, we must as we have said in this and similar cases search for such limitations.

As our examination of the constitutional provision applicable to this case leads us to the conclusion that it has not been violated by the legislation under which the plaintiff has acted, our conclusion is in his favor upon the question submitted.

Cullen, J.

—The question presented by this case is the interpretation to be placed upon the amendment of 1885 to § 11, article VIII of the constitution of the state, limiting the power of certain counties and cities to incur debt. It is unnecessary to recapitulate the facts which are fully detailed in the agreed statement submitted to the court. It is sufficient to say, that if the water bonds of the city of Brooklyn are to be included in estimating its debt, and if the power of the county to incur debt is limited, either by the actual debt of the city of Brooklyn, or by excluding from the real estate of the county such part thereof as lies within the city of Brooklyn, for the purpose of estimating ten per cent on its assessed value, then the bonds for which the defendant’s cheque was given are void. . But if either of these contentions falls then the bonds are good.

The provisions of the constitution under examination are as follows:

“ No county containing a city of over one hundred thousand inhabitants, or any such city, shall be allowed to become indebted, for any purpose or in any manner, to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment rolls of said county or city on the last assessment for state or county taxes prior to the incurring of such indebtedness; and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void, except as herein otherwise provided. No such county or such city whose present indebtedness exceeds ten per centum of the assessed valuation of its real estate subject to taxation shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit. This section shall not be construed to prevent the issuing of certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually contained or to be contained in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes. Nor shall this section be construed to. prevent the issue of bonds to provide for the supply of water, but the term of the bonds issued to provide for the supply of water shall not exceed twenty years; and a sinking fund shall be created on the issuing of the said bonds for their redemption, by raising annually a sum which will produce an amount equal to the sum of the principal and interest of said bonds at their maturity.’’

The first question is, whether the water debt is to be counted in determining whether the ten per cent, limit of a city has been reached or exceeded. We think it is. The constitutional provision is, that no county or city shall for any purpose go beyond the prescribed percentage. No language could be more forcible or broad. This is qualified by the subsequent provision that the section shall not be construed to prevent the issuance of certain bonds for water supply. Full effect can be given to both provisions. A city may, for- water súpply, incur debt, though in excess of the limit, but it cannot contract a debt in excess of the limit for any other purpose, including in the estimate of debt any already incurred for water supply. This is not only the strictly accurate interpretation of the.language, but the natural one. Had the intention been to exclude the water debt, the proviso would have been omitted, and the exception placed after the words “ for any purpose, or in any manner.’’ This brings us to the question of the connection between the county and city debt.

The learned counsel for the defendant contends that it was the intent of this constitutional provision to restrain the creation of debt either by the city or county which, taken together, would exceed ten per cent of the assessed value of the real estate lying within the county or city; or, in other words, that real estate should not bear the burden of a greater debt both for city and county purposes than ten per cent of its assessed value. The rules for constitutional construction have often been enunciated. While the whole instrument is to be considered, and the real intent should prevail over the strict letter of the provision, still that intent must be found in the language unless the letter would lead to palpable injustice, contradiction or absurdity. People ex rel. Gilbert v. Wemple, 125 N. Y., 485: 36 St. Rep., 20; Newell v. People. 7 N. Y., 9.

“If the language is unambiguous, the words plain and clear, conveying a distinct idea, there is no occasion to resort to other means of interpretation. Effect must be given to the intent as indicated by the language employed. Especially should this be so in the interpretation of a written constitution framed deliberately and with care and adopted by the people as the organic law.” Settle v. Van Evrea, 49 N. Y., 280.

This rule is peculiarly applicable to the case in hand, for the case is singularly barren of external sources from which to draw light. The limit prescribed by the constitution is wholly arbitrary, and necessarily so. While most citizens would recognize that excessive debt by localities is an' evil to be checked, the question of what debt is excessive would produce the widest diversities of opinion ; diversities to be composed only by compromise at an arbitrary figure. This is the first provision of the character in any of the constitutions of this state, so we are equally without tradition or policy in this respect. We must, therefore, decide the case on the very words of the constitution.

The language of the constitution is disjunctive, “No county * * * or any such city, shall be allowed to become indebted to an amount which shall exceed ten per cent of the assessed value of the real estate of such county or city subject to taxation." The literal and grammatical reading is that the county shall not be allowed to incur debt beyond a certain per cent and that the city shall not be allowed to incur debt beyond the same per cent. Separate restrictions are imposed on each. This is so clear to my mind as to forbid elaboration.

It is only when we consider that the county includes the city, and that lands in the latter are charged with the debts of both, corporations, that the argument is suggested that the constitution may have intended to prescribe a single rate or limit for the aggregate of both debts. To give force to this argument it must appear that the natural and appropriate manner to restrain local debt would be by a single rate for the joint debt of county and city. Wo think that the reverse of this proposition is true. While the constitution intended to protect the property of the taxpayers from excessive local debt, it deals with this subject by placing restrictions on the agencies by which such burdens would be imposed. The state has always been divided into counties, and the county composed of towns and cities. The counties and cities (with the exception of New York) have been separate and distinct governmental agencies and corporations. Bach have been in the habit of contracting debt, though the use of this power by counties has been of rare occurrence.' But the debts have been separate and contracted for different purposes, those of counties for county purposes, those of cities for city purposes.. Though a sharp line of demarcation has not always been observed between the charges and expenditures of the county and those of the city, in the main the difference in character between these two classes of public burdens has been recognized. The powers of those separate branches of government are exercised by different public officers acting, not together but each independently of the other. The effect of a single joint limit on both would be to make each subservient in its action to the other. No prudence or restraint on the part of the county authorities would enable them to prosecute a public improvement requiring the creation of debt were the city authorities extravagant, and the same would be the case with the city. These considerations must have been palpable to the legislatures who passed this amendment and to the people who enacted it. So far as a priori reasoning can go it would seem plain that a practical legislator would have, seen that the appropriate way to restrain local debt was by separate restrictions on county and city and not by a single restriction on the combined action of both. The difficulty in the practical working of the construction contended for has been apparent to the learned counsel for the defendant, and he has not inaptly asked, “ Is it to be a race for the diligent between the city and county to see which shall first exhaust the combined debt limitation?” To obviate the difficulty he presents an ingenious solution of the problem.

He claims that the limitations on county and city are separate arid distinct, but that in estimating the capacity of the county to contract debt, only the real estate of the county lying without the city is to be reckoned. There aré several objections to this construction. It would require us to import into the constitution words that are not there, that is, after “ county ” the qualification “ excluding therefrom the real estate in any such city.” This is not admissible. People v. Wemple, supra.

Such construction would be inconsistent with the general scheme of the constitutional provision. Whatever be the rate prescribed by the constitution, be it several or joint, it is clear that the capacity to incur debt, whether of city or county, was to be proportioned to its resources and to the real estate on which the burden was to fall. The real estate in the city bears the charge of the county debt to the same extent as other real estate in the county. Yet the extent of the capacity of a county to incur debt would, under this construction, depend not on the value of all its real estate, but only on a portion of it, ánd that too a portion which might be more heavily burdened with debt than the real estate excluded, for as to towns and cities under 100,000 in population there is no debt restriction. It would also result that the largest and wealthiest counties, whose resources are not only the greatest but whose necessary expenditures are presumably the largest, would have the least power to contract debt. We, therefore, conclude that under this constitutional provision city and county each may incur debt to the extent of ten per cent of the assessed value of all the taxable real estate within it, and that the bonds of the county purchased by the defendant are valid obligations.

The criticism that this construction doubles the limit or rate of debt prescribed by the constitution is more specious than sound. It begs the very question in dispute, how that rate is to be computed or ascertained ? Even if it be assumed that this subject first presented itself to the minds of legislatures and people from .the standpoint of aggregate debt by all local governments, and of every local character, we have seen that if not necessary it would have at least been wise in drafting a restriction to apportion the limit between the city and county so that each might be responsible for its own acts. But we think it should rather be assumed that the legislature and people considered the subject from the point of view expressed in the constitution, that is, not as to" the aggregate of local debt, but as to each character of local government, what was a proper limit considering not only its resources, but also its needs. It is not to be presumed that the legislature of local authorities will seek to evade this severance of the power to incur debt by transferring to the county the burden of expenditures justly a city charge. If the attempt were made, we do not say that it would succeed.

Judgment for plaintiff on submitted case, with costs.

Barnard, P. J., concurs.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    The People, Resp’ts, v. Robert H. Moses, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Sunday—Fishing on, a crime—Penal Code, § 265.

    Fishing on Sunday is a crime under § 265 of the Penal Code, although done privately and without any disturbance. Said section, while forbidding only public sports, exercises and pastimes, prohibits all shooting, hunting and fishing.
    Appeal from judgment of the Orange county court of sessions affirming conviction of defendant of a misdemeanor in fishing on Sunday.

      Matthew Daly, for app’lt; M. H. Hirschberg, for resp’ts.
   Cullen, J.

-—The defendant was convicted before a justice of the peace in Orange county of a misdemeanor, in fishing on Sunday, and fined five dollars. This appeal is from the judgment of the court of sessions affirming such conviction.'

But one question is presented to us on this appeal. That the defendant was fishing on Sunday is conceded; that the lake where he fished was private property, and that he had the privilege of fishing in it was also conceded. It is not shown that he created any commotion or disorder, or that his acts attracted or were witnessed by any person other than the complainant, or disturbed the peace. On these facts the defendant contends that he was guilty of no offense; that under the authority of People v. Dennin, 35 Hun, 327, to constitute the crime the act must disturb the repose of the community. u We think not. Section 265, Penal Code, prohibits “ all shooting, hunting or fishing, playing, horse racing, gambling or other public sports, exercises, pastimes or shows.” It will thus be seen that while only public sports, exercises and pastimes are forbidden, all shooting, hunting and fishing, etc., are inhibited. The decision in People v. Dennin proceeds on this distinction. In fact, it might be very difficult to draw any distinction between a “ public ” fishing or hunting, and private fishing or hunting. The validity of such legislation cannot be questioned in this state. Neuendorff v. Duryea, 69 N. Y., 557; Lindenmuller v. People, 33 Barb., 548.

The question of how far these restrictions should be carried is for the legislature, not for the courts.

Judgment and conviction appealed from affirmed.

Barnard, P. J., and Dykman, J., concur.


text:
    Mary A. Peckham et al., Resp’ts, v. The Dutchess County Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Railroad—Farm crossings.
    The act of 1890 has not taken away the obligation of a railroad to construct farm crossings. The provision of the statute directing openings to he placed at farm crossings recognizes and grants, the right to such cross ings to the same extent as if in express terms it had ordered their construction.
    Appeal from judgment in favor of plaintiffs.

      Milton A. Fowler, for app’lt; Herrick & Losey, for resp’ts.
   Cullen, J.

—This action is brought to compel the defendant to construct a farm crossing over its road. The court, at special term, decreed the construction of the crossing asked for. The testimony given on the trial is not presented on this appeal, and the sole question before us is that of the power under the present law to grant the relief sought

It is settled by authority that under - § 44 of the general railroad act of 1850 it was the duty of a railroad company to construct proper crossings, and that such duty could be enforced by an equitable action. Wademan v. Albany & S. R. R. Co., .51 N. Y., 568; Jones v. Seligman, 81 id., 190. But, in 1890, the railroad laws were codified, and the defendant condemned its right of way over the plaintiff's land subsequent to the period when the law of 1890 took effect

The claim is now made that by the statute of 1890 railroad companies are under no obligation to give the owners of farms intersected by their road any crossing.

Section 44 of the act of 1850 reads: “Every corporation formed under this act shall erect and maintain fences on the sides of their roads of the height and strength of a division fence required by law, with openings or gates or bars therein and farm crossings of the road for the use of the proprietors of the lands adjoining such railroads.” By § 32 of the act of 1890: “ Every railroad corporation * * * shall maintain fences * * * with openings or gates or bars therein at the farm crossings for the use of the owners and occupants of the adjoining lands.” It is claimed that this change of language must be interpreted to work a change in the law, and that by the section as it now stands no duty is imposed to maintain crossings, but only to maintain openings whereby by consent or privilege of the company crossings may be permitted. We think not The language used in the present act is not new. In § 8 of chap. 282, Laws of 1854, substantially the same provision as to fencing at farm crossings is found. Thus, previous to the revision of 1890 there were two enactments on the same subject; that of 1850 and that of 1854. In compiling the statutes on the subject, these separate provisions were consolidated, and the language of the later act used. We think, therefore, that no argument can be drawn from the change bf phraseology.

Apart from this consideration, we think it plain that the statute by directing openings to be placed at farm crossings recognizes and grants the right to such crossings to the same extent as if in express terms it had ordered their construction. From the earliest time of railroads in this state such crossings have been made. Even in the case of a private grant, if there be no other way for the grantor to obtain access to his remaining lands, the reservation of a way, of necessity, will be presumed. But such severance of lands in ordinary sales are rare. But railroads for the greater part of their route sever farms and tracts over which they pass, leaving no access to the severed portions, save across the railroad. To hold that there was no right of crossing .in such cases would render the severed land often valueless and compel the railroad company to pay excessive and unnecessary damages. No evil has occurred in practice from the existence of these crossings. To attribute to the legislature an intent to reverse the whole policy of the state on this subject, and in the future to prevent such crossings and compel large tracts of land to remain comparatively useless, would be unwarrantable.

We think that there is nothing in the statute that forces us to such a conclusion.

The judgment appealed from should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. X, not sitting.


author: Hatch, J.

text:
    Mary W. Bagley, Pl’ff, v. Lauren W. Pettibone, Adm’r, Def’t.

      (Superior Court of Buffalo, Equity Term,

      Filed July 20, 1892.)

    Corporations—Stockholders—Contribution—Release.
    The receiver of a corporation obtained a joint, judgment against one W. and defendant’s intestate, as stockholders, which W. paid. In an action for contributi-m it was claimed that W. had released the intestate. The only evidence to show this was a statement made by W., at a time when the grounds for such judgment existed, that he would deed certain property to intestate for his interest in the company. The witness was unable to state any more of the conversation. At that time there were large earnings accrued upon Ike stock, which had then lost its earning power. Held, that the judgment made a prima facie case, which was not overcome by such testimony; that presumptively the ofier was made for the interest which was of value, viz., the profits, and not the stock, which had ceased to have any.
    Action to compel contribution.
    The original defendant, Stoughton Pettibone, having died during the pendency of this action, the present defendant, as his representative, was substituted.

      L. N. Bangs, for pl’ff; David Miller, for def’t.
   Hatch, J.

—Upon the testimony in this case it appears, without dispute, that Woodruff and Stoughton Pettibone were stockholders in the Hydrostatic Paper Company; that said company was dissolved by action, and a receiver appointed of its property; that such receiver recovered a joint judgment against Woodruff and Pettibone for and on account of their liability as stockholders in said company; that Woodruff thereafter paid said judgment in full and Pettibone has paid nothing. Upon these facts it is conclusive that Pettibone is legally bound to contribute one-half of the sum paid by his co defendant. This result is not combatted by defendant; what is claimed is that Woodruff released Pettibone from all liability on account of the claim out of which the judgment arose before it was obtained, and consequently, as between them, it was the sole debt of Woodruff. For its support this claim rests upon a single isolated statement, claimed to have been made by Woodruff during a negotiation between himself and Pettibone.

At this time the parties stood to each other in this attitude: both held an equal amount of stock; the earnings of the stock, over and above expenses, was sixty-six thousand dollars; each was entitled to thirty-three thousand dollars. Hot only was this sum due each, but it represented all there was of value in connection with the company, as its earning power had ceased. The ground upon which the receiver’s judgment was obtained then existed, and, so far as appears, was not thereafter changed by any act, of either party. It was under these conditions, and during negotiations for a settlement of the accounts, that Lauren Pettibone testifies he heard Woodruff say to the deceased, “I will deed you the Washington property in exchange for your interest in the Hydrostatic Paper Company.” It is claimed that this statement necessarily embraced the stock held by Pettibone, but it does not say so in words; the earnings were an interest, and the only interest of value; it is therefore as fair an inference that the thing of value was the thing negotiated about, and about which the proposition was made, as it is to say that it embraced property of no value, with respect to which it does not appear that a single word was said beyond the quoted words. We may bring to our aid, under such circumstances, the well understood reasons which move a person to secure to himself property or rights to which he is entitled.'

The thirty-three thousand dollars was not there in money; Woodruff had that, and it is quite evident that Pettibone wanted it or its equivalent; that was his interest, and when that was secured, his troubles, in a property sense, were over. I think the statement clearly susceptible of such limitation. But if it be conceded that the proposition embraced the stock, I do not think defendant is aided. The liability upon which the judgment was founded then existed; so far as appears, it was not and could not be shifted by a mere transfer of the stock. There is nothing to be found in the testimony which shows, or tends to show, that a word passed or was said by either Woodruff or Pettibone about the existent action, or any contingent liability arising thereon, while there is not a word in the proposition which in the remotest manner refers to it. It appears to me that it would be doing violence to both law and language, to now infer that the parties at the time intended that Pettibone should receive full compensation for his interest in the company, and be relieved from liability; that Wood-ruff should pay, and assume it The - authorities relied upon by defendant have no application to such a case.

In Savage v. Putnam, 32 N. Y., 501, certain members of a firm assigned their interest, with the assent of their co-partners, to solvent parties, and it was expressly stipulated by all that the retiring partners should cease to be liable for debts then existing. As between the parties thereto it was held that the assignors ceased to be liable for the partnership debts.

In Morss v. Gleason, 64 N. Y., 204, a partner sold out his interest in the firm to a third party. It was held that such person acquired a right to an accounting in respect to the partnership effects, and that such property was held in trust for the payment of the firm’s debts ; that the retiring partner was surety for the debts of the firm to the extent that the assets were 'sufficient to pay and discharge; that inasmuch as there were sufficient assets at the time of the transfer to pay and discharge all debts, he. was not liable upon a note held by his wife against the firm, which he caused to be transferred to one of the partners upon an independent transaction; that the only effect was to give such partner, as against his co-partners, a greater interest in the trust property.

In Finley v. Fay, 17 Hun, 67, a partner was indebted to the co-partnership in a large amount. He sold out all his right, title and interest to his co-partners, who covenanted to save him harmless from all firm debts ; it was held that the agreement operated to discharge the debt. In two of these cases the exemption from liability rests upon an agreement. In the third, so far as the law operated to create liability. independent of express covenant, the facts showed sufficient property to meet it, and the determination of the court was based upon that consideration. I am not able to see their application to the facts of this case.

There is another view of this action which I think should obtain. Woodruff denies that he ever proposed to purchase the interest of Pettibone in the stock of the company, but insists that the whole negotiation related to Pettibone’s share of the profits; that for this sum, and that alone, he transferred the property.

Both Woodruff and the present defendant are to be treated as interested witnesses. The liability against Pettibone’s estate rests upon the judgment. Prima facie this makes out a case for plaintiff. Upon defendant rests the burden of overthrowing it. An analysis of Mr. Pettibone’s testimony shows that there was a conversation about matters connected with the paper company, and about matters connected with the Washington street property, which lasted for twenty minutes or half an hour, at the time when the claimed proposition was made and accepted; that these matters were not only talked over at this time, but they had been the subject of conversation several times before. Mr. Pettibone was unable to give the conversations, or any of them, in detail, or to give the substance of them. He did not claim an accurate recollection, or any but the most general remembrance, and this related to the time when the conversation was held, as well as to its matter. In addition to this, he did not claim that he paid particular attention to the discussion until the words already quoted were spoken; so that what preceded or followed these words, whether they were in any respect qualified, or whether the interest mentioned embraced the stock, or was limited to the amount due as profit, we do not know. No reflections need be cast upon this testimony, or upon the veracity of the witness; for when we take into consideration the imperfections of memory, the blending of ideas, the confusion liable to be created by different conversations covering some period of time, the liability of the person speaking to fail in clearly expressing his meaning, and of the person listening to misunderstand him, the length of time which has elapsed since the statement was made, and, above all, the conceded fact that the whole conversation is not given, it is enough to say that such testimony must rank very low as evidence, even though it comes from a witness of unquestioned veracity.

Taking this view of the evidence, I think it is entirely insufficient to sweep away the liability created by the judgment, coupled with the other conceded facts.

Judgment is therefore ordered in favor of the plaintiff for the amount of the contribution asked, with interest and costs.


author: Van Brunt, P. J.

text:
    James Saxton, Pl’ff, v. The New York Elevated Railroad Co. et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Railroad—Elevated—Harmless error.
    While a question put to a witness in an action against an elevated road as to whether the road generally, running through an avenue, is a benefit to the business of the avenue, is objectionable, yet where the witness only answers " I think not,” its admission is a harmless error, and not one for which the judgment should be reversed.
    Appeals by plaintiff and defendants from judgment entered upon report of referee.

      J. C. Thomson, for def’ts; E. W. Tyler, for pl’ff.
   Van Brunt, P. J.

—One of the points raised upon this appeal by the defendant is that the amounts fixed by the referee as the value of the plaintiff’s easements are excessive, unjust and unsupported by the evidence. We have examined the evidence in this case, and see no reason to differ from the conclusion arrived at by the referee. There was evidence sufficient to support his conclusion, and it is not necessary to discuss the same at length in the disposition of this appeal.

It is further urged that the referee erred in refusing to find that the defendants’ station is advantageous to the business portion of the premises. This proposition has already been disposed of upon previous appeals.

It is further urged that the referee erred in permitting a witness to testify that the elevated railway is not generally a benefit to the business of an avenue. The question asked was: “ Mow take the elevated railroad generally, running through an avenue, is it a benefit to the business of the avenue ? ” This was objected to upon the ground that it was too general and should have been confined to this particular street and property. The objection was overruled and counsel for the defendants excepted, and the witness answered, “ I think not.” We think perhaps the objection was well taken, and it would have been better if the evidence had been excluded. But in view of the nature of the case, being an equity case, and the indefinite character of the testimony, it does not seem that the defendants sustained any damage by reason of this trivial and inconsequential error. It is clear that the defendants sustained no damage thereby and the judgment should not be reversed upon that ground.

The plaintiff also appeals from the judgment, alleging that the referee erred in not allowing rental damage up to the time of the trial. ^ This question has been presented upon a previous appeal and disposed of, but a point is raised here which was not suggested on that appeal. It is claimed that if the plaintiff desired to raise the question he should have entered judgment denying the relief upon that ground, and that no such judgment having been entered there is nothing to appeal from, as an appeal cannot be taken from the referee’s conclusions of law and findings of fact. The judgment is general and it does not appear therefrom that any relief has been denied the plaintiff, and consequently he has no ground for an appeal. It is conceded that a reversal is not desired, and as the court has no power to increase the judgment even if the appeal would properly lie, the judgment should be affirmed, without costs.

Patterson and O’Brien, JJ., concur.


text:
    George H. W. Curtis, Pl’ff, v. The Wheeler & Wilson Manufacturing Co., De”

      (Supreme Court, General Term, First Department.

      Filed June 29, 1892.)

    Appeal—Direction of verdict.
    Where no exception is taken to the direction of a verdict, it cannot be claimed on appeal that there was evidence which should have gone to the jury.

      Motion for new trial, the complaint having been dismissed at circuit, and exceptions ordered to be heard in the first instance at the general term.

      Henry Cooper, for the motion; Miron Winslow, opposed.
   Van Brunt, P. J.

—This action was brought to recover upon an alleged contract. The contract was denied by the answer, and the issues thus raised came on for trial at a circuit court.

Upon the close of the plaintiff’s evidence, the defendant requested the court to direct a verdict in favor of the defendant, which motion was granted, and an order was made directing the exceptions to be heard in the first instance at the general term.

The only question which was argued upon the motion for new trial before this court was as to the correctness of the decision of the court at circuit directing a verdict in favor of the defendant, it being claimed upon the part of the plaintiff that there was evidence which should have gone to the jury.

It is to be observed that upon this record no such question can be presented. There was no exception to the direction of a verdict by the court, and consequently the correctness of that ruling was not brought up by the motion.

But, even if there had been an exception, we do not see that the plaintiff has strengthened his case in any manner upon the second trial. When this case was before this court upon a previous appeal, 40 St. Rep., 724, it was held that the verdict of the jury was against the weight of evidence, and new trial was granted. The evidence presented now is stronger for the defendant than it was then; and we see no reason whatever for interfering with the conclusion arrived at by the general term upon the previous appeal.

We think, therefore, that the exceptions should be overruled, and that the defendant is entitled to judgment upon the verdict, with costs.

O’Brien and Patterson, JJ., concur.


author: O’Brien, J.

text:
    Frank Donohue, Adm’r, Resp’t, v. Richard Meares, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 29, 1892.)

    Bill oe paeticulaes—Negligence.
    In an action for the death of plaintiff’s intestate, who was an employee of defendant at his hotel which was totally destroyed by Are, alleged to have been caused by negligence in failing to provide a suitable or reasonably safe place for her to sleep in, and in failing to provide reasonably safe means of egress in case of Are, it is proper to deny a bill of particulars as defendant has better knowledge of the facts than the plaintiff.
    Appeal from order denying motion for bill of particulars.

      William Allan, for app’lt; Solon P. Rothschild, for resp’t.
   O’Brien, J.

—This action is brought to recover $5,000 damages under the statute, by reason of the death of the plaintiff’s intestate, Elizabeth Donohue, caused, as alleged in the complaint, “ by, through and by reason of, the fault, neglect and want of care of the defendants, their agents and servants, and( particularly through the fault, neglect and want of care of the defendant Meares, his agents and servants, in failing to provide a suitable or reasonably safe place for said Elizabeth Donohue, who was then an employee of said defendant Meares, to sleep in, and also through the fault, neglect, default and want of care of said defendants Israel and Meares in failing to provide reasonably safe means of egress in case of fire or accident in and about said buildings, and premises.”

The defendant Israel, who was the landlord and owner of the premises, interposed an answer to this complaint; but the defendant Meares, who was the tenant in possession and engaged in running the hotel, moved for a bill of particulars of the plaintiff’s claim and aslced that he be required to state, first, what the fault, neglect and want of care of the defendant Meares consisted of; second, in what respects and particulars said defendant Meares failed to provide a suitable or reasonably safe place for said Elizabeth Donohue to sleep in; third, what the alleged fault, neglect, default and want of care of said defendants, Israel and Meares, in failing to provide reasonably safe means of egress in case of fire or accident in or about the buildings and premises described in the complaint, consisted of ; and that, in default of delivery of such bill of particulars, plaintiff be precluded from giving evidence at the trial of this action in support of such particulars.

This motion was made under § 531 of the Code, which provides that the court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party. The motion was denied, as stated in the opinion of the learned judge making the order, upon the ground that “ it sufficiently appears by the complaint that the imputed negligence was the want of sufficient means of egress from the building, and a bill of particulars is not required.”

With this disposition of the motion we see no just cause for interference. When we consider the parties to the action, their means of knowledge respectively, and the facts appearing by the moving and opposing affidavits, we think a' question was fairly presented for the exercise of the discretion which by the Code is vested in the court to whom the application is made for particulars, and the exercise of which should not be disturbed unless the same has been abused. Whilst the power of the court to order bills of particulars extends to all descriptions of actions, we think that caution should be exercised in requiring bills of particulars in actions for negligence, and particularly where the action is brought, not by the person injured, but, as here, by one claiming in a representative capacity.

Where the negligence alleged results in death, and the action is brought by an administrator, the latter ordinarily is obliged to obtain his evidence and facts from sources other than his own personal knowledge, and a defendant is ordinarily in possession of facts bearing upon the cause of death charged through his negligence. Mo rule can be formulated with respect to any class of cases, much less with respect to actions of negligence, as to when a bill of particulars will be required, it being necessary to determine upon the facts presented upon the application in each case whether it should be granted or denied. Here the charges are not as vague and general as contended for by appellant, it being-evident, from a reading of the complaint and a fair construction to be given thereto, that the negligence imputed to the defendants has been limited by the allegations charging the defendants with failing to provide a suitable or reasonably safe place for plaintiff’s intestate to sleep in, and in failing to provide reasonably safe means of egress in case of fire or accident. The building having been entirely destroyed by fire, it is evident, from plaintiff’s relation to the building, as is made more clear by the affidavits used upon the motion, that the defendant Meares with respect to the information sought has better knowledge thereof than by any possibility could the plaintiff. What provision was made for the sleeping apartments of employees, what means of egress were afforded, these were matters that daily came under the defendant’s notice, and in respect to which it is not conceivable how he could be benefited by any knowledge or information derived from the plaintiff.

We think the purpose of the motion was not to acquire any such knowledge, but was intended to -limit the plaintiff to specific acts, and thus deprive him of the benefit of information which, though now in the possession of the defendant, may not at this time be in the possession of plaintiff, and which if obtained before the trial would be available to him in maintaining his action. This is not the office of a bill of particulars.

We see no grounds for interfering with the conclusion reached by the learned judge below, and the order appealed from should therefore be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., concurs.


text:
    Mary A. Potter, Pl’ff, v. Thomas L. Ogden et al., Ex’rs, Def’ts.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. ExBCTJTOBS AND ADMINISTEATOBS—LIABILITY OB SUEETIES ON BOND— Enpobcement.
    The method of fixing the liability of sureties upon an administrator’s bond and the enforcement thereof are governed by the provisions of the Code in that regard, although the bond was given prior to the taking effect of the Code. The latter clause of § 2610 relates to the provisions of the chapter relating to the extension of the liabilities of sureties upon such bonds, and not to the methods by which their liabilities arising from a breach of the conditions of the bond should be enforced.
    2. Same.
    A decree reciting that a deceased administrator had not paid over a distributive share of the estate which he had been directed to pay, and that on his death there were no assets, and directing his administrator to pay-such share out of the assets of which the deceased was administrator, is sufficient to fix the liability of the sureties on the bond of the deceased administrator.
    Motion for new trial, the complaint having been dismissed and exceptions ordered tó be heard in the first instance at the general term.

      Jno. D. Kernan, for the motion; David B. Ogden, opposed.
   Van Brunt, P. J.

—This action was brought against the defendants as executors of the last will, etc., of Samuel E. Lyon, deceased, upon the bond of one John W. Mills, as administrator, etc., of Abigail Hall, deceased, on which bond the said Samuel E. Lyon was one of the sureties.

It appeared that on the 10th of June, 1872, John W. Mills and Jane E. Kelemen were appointed by the surrogate of Westchester county administrators of the estate of Abigail Hall, deceased, and on the 22d day of May, 1872, Lyon signed the bond in suit conditioned for the faithful execution of the trust of said administrators and their obedience to all orders of the surrogate.

On the 13th of October, 1873, Mills began accounting proceedings, which proceedings terminated in a decree on the 27th May, 1877, directing Mills to pay and distribute to John W. Mills as general guardian of Agnes Hall, $11,183.23; also that he retain in his hands as such general guardian the said amount adjudged to be due and payable to her. The defendants contend that thereafter Mills continued to retain and hold the same as such general guardian and in no other capacity. There is no evidence that Mills in fact transferred or paid over the fund to himself as general guardian, and the plaintiff has never received anything. In October, 1882, Mills died, and in a proceeding brought by one Charles A. Hall, a creditor of said Mills, Hall was appointed his administrator. On the 25th of September, 1889, the plaintiff petitioned that said Hall, as such administrator, be called upon to account, in accordance with which petition a citation was issued to said Hall as administrator, and in accordance therewith he rendered an account in which he states that as he is informed and believes said Mills as administrator of, etc., of Abigail Hall, deceased, had in his hands on the 2d of May, 1877, the distributive share of said estate due to the petitioner; that such distributive share was never paid to the petitioner but was due and unpaid to her, and that as administrator of such estate of John W. Mills he had not been able to find any assets or property of the estate of said Abigail Hall, deceased, remaining in the hands of said Mills as administrator of her estate at the time of his decease, except some articles of furniture not exceeding fifty dollars in value. A decree was entered upon said accounting in the surrogate’s court on the 17th of November, 1890, adjudging that said Hall, as administrator of said John W. Mills, pay to the plaintiff the sum of $11,183.23, with interest thereon from the 2d of May, 1877, out of the assets of Abigail Hall, deceased.

Various other questions were raised during the progress of the trial which it is not necessary to mention here, and the court was moved to dismiss the complaint upon the ground that as the bond upon which the suit was brought was given in 1872, and that as the provisions of law then in force regulating the method of fixing the liability of sureties had not been observed prior to bringing this action, the complaint should be dismissed. This motion was granted and an exception taken.

It is urged upon the part of the defendants that the liability of the sureties on Mills’ bond could be determined only in the manner provided by law in' 1872, when the bond was executed. If this is a correct proposition of law, then it would seem that the sureties upon the bond were absolutely absolved, because the provisions of the Revised Statutes and of the Laws of 1837, relating to this subject, were repealed by the repealing act of 1880 and no longer exist.

It was undoubtedly supposed that the sections of the Code relating to this matter were applicable to bonds which had been given prior to their enactment, as well as to those which should come into existence subsequently. This view we think to be entirely well founded. In the execution of the bond the sureties had obtained no vested right in the method of procedure by which their liability was to be determined. There was no power in the legislature to increase that liability in any way, but they had a right to alter the remedies by which the liability upon the bond should be enforced, and the procedure which should be observed by those seeking relief because of a breach in the condition of the bond. And this was all that was done by the repealing of the provisions of the Revised Statutes and the Laws of 1837, at the time when the sections of the Code above referred to went into operation. Upon an examination of those sections it is clear that this is a correct interpretation of the legislation. Section 2610 expressly provides that “ the provisions of this article apply to an executor, administrator or guardian to whom letters have been issued, and to a testamentary trustee whose trust has been created before this chapter takes effect.’’ It is true that the section terminates with this clause, “ except that it does not affect in any manner the liability of the sureties upon a bond executed before this chapter takes effect” But it is evident that this saving clause was intended to relate to the provisions contained in the chapter relating to the extension of the liabilities of sureties upon the official bonds of either a guardian, administrator or executor.

It had no reference to the methods by which the liabilities arising from the breach of the conditions of a bond should be enforced. A change in the method of enforcing liability upon a bond in no way increased or diminished such liability, and therefore has no effect upon the same. It would have been idle, if the contention of the respondent is correct, for the legislature to have enacted § 2610 at all, as the last clause would repeal the first. This view seems to have' been recognized in the case of Hood v. Hayward, 48 Hun, 330; 15 St. Rep., 846, which was affirmed by the court of appeals, 124 N. Y., 1; 35 St. Rep., 229, the point in question, however, not being noticed in the latter court.

But it is urged that even if it be held that the provisions of the Code are applicable to the case, there is no such determination of Mills’ default as is there provided for, because the decree rendered directs the administrator of Mills to pay to the plaintiff the amount of her claim out of the assets of the estate of Abigail Hall, deceased, instead of out of the estate of John W. Mills, deceased. We cannot see the force of this objection. The decree was a determination that Mills, as administrator, had not paid the money as directed by the decree of May 2, 1877 ; and that when he died he owed it to the plaintiff as such administrator, and had not paid it over to her or to himself as guardian ; and that at the time of his death he still held and owned the money as administrator.

It is clear that the direction that Hall, as administrator of Mills, pay to the plaintiff out of the assets of the estate of Abigail Hall, is proper in form, because such is the procedure contemplated by § 2606 of the Code. The administrator or executor of the deceased administrator is to account precisely the same as the deceased would have - accounted had his letters been revoked by the surrogate’s decree; and it is expressly provided that a decree against a decedent’s executor or administrator, rendered upon such an accounting, has the same effect as if an execution issued upon the surrogate’s decree against the property of the decedent had been returned unsatisfied during the decedent’s lifetime.

It further appears from this decree that Mills died without assets of any kind, or in- any capacity. Hence it would appear that there had been a complete devastavit by the -deceased administrator. And this view is recognized in the case of Perkins v. Stimmel, 114 N. Y., 359; 23 St. Rep., 657.

The claim that there might be assets of the estate of Mills, out of which the plaintiff’s claim might be satisfied, and that the decree in its present form would be ineffectual to reach them, cannot prevail; because the decree expressly finds that Mills died without assets of any kind.

It is further claimed that there was no default shown upon the part of Mills as administrator in complying with the decree of May 2, 1877. It appears that he was directed to pay to himself as guardian, but there is not the slightest evidence that any such payment was ever made. The suggestion that the decree shows that at this time Mills had the funds in his hands to make this payment is certainly not well founded. All that the decree determines is that he was chargeable with this aniount; but that he had the funds actually in his hands was not adjudicated. The decree determines what the administrator is chargeable with, and what he should pay, and directs him to pay it, and if he does not pay it then the beneficiary has his remedies, and the wording of a surrogate’s decree upon an accounting cannot be tortured into a judicial determination that an administrator or executor has in his hands all the assets for which he is chargeable.

Without considering the other points raised, we are of opinion that there was a sufficient compliance with the provisions of the Code fixing the liability of the sureties upon the bond of the' administrator, and that the only remedy which remained, and the only method of procedure, was that which was contained in the " Code.

We think, therefore, that the objections should be sustained, and a new trial ordered, with costs to the plaintiff to abide the event,

Patterson and O’Brien, JJ., concur.


author: Patterson, J.

text:
    John S. D. Manville, App’lt, v. J. Warren Lawton, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Fraud—Agency.
    Proof that defendant, knowing of- the existence of a pool,of stock, of another person’s authoiity to buy on account of, or with the money of plaintiff, shares of stock for said pool, and of a real or supposed necessity of buying them through him as an intermediary, undertook for a sub-interest in the pool to buy such shares for the pool with plaintiff’s money, and that he bought such shares, but charged the plaintiff a greater sum than he paid therefor, is sufficient to carry the question of agency in the . transaction to the jury, and upon such proof it is error to dismiss the complaint.
    Appeal from a judgment entered on a nonsuit directed at' circuit.

      George W. Carr, for app’lt; John Cummins, for resp’t.
   Patterson, J.

—On the trial of this action, and on motion of the defendant Lawton, the complaint was dismissed, and we now have to consider whether on the pleadings, and evidence a prima facie case was made out against the defendant named in any aspect entitling the plaintiff to recover. The action was brought to recover damages against Lawton and one Jackson for a fraud alleged to have been practiced by them in the purchase of shares of the capital stock of two corporations, and which shares were paid for by the plaintiff to Lawton. The complaint is so framed as to charge a conspiracy to cheat on Lawton, Jackson and one Thompson, the latter not being made a party. A synopsis of the proceedings is necessary to present intelligibly the questions involved in the appeal. The complaint is prolix and diffuse, but its' substantial averments are the following, viz.: that at the times mentioned in it, there were two existing 'corporations organized under the laws of <the state of New York, one called the Kennedy Brick & Tile Company, and the other .the Union Brick & Tile Manufacturing Company; that these two corporations were in effect controlled by the same persons, and that Jackson was a director and the general manager of the Kennedy Company and the president of the Union Company, and Lawton a director and the attorney and counsel of both companies; that the plaintiff was induced by false statements of Jackson or Thompson, or both, to believe the. stock of the companies was of enormous value, and that on the 4th day of February, 1884, he (the plaintiff) Jackson and Thompson entered into a written agreement, whereby he was to purchase sixty-three shares of the Kennedy stock from one Phalen, at the price of $12,600, and those shares were to be pooled with eight of the same stock owned by Jackson and ten owned by Thompson, and the dividends or earnings thereon were to be applied in certain ways, and when that was done the pool was to be dissolved and all the shares divided, one-half to the ■ plaintiff and one-fourth to each of the other parties, and that it was further agreed that all other shares of stock bought by Jackson and paid for with money furnished by the plaintiff should be transferred to and held, by the pool in the same manner as the sixty-three shares.

It is further alleged that Lawton knew of this agreement and that some time in February, March or April, 1884, the said defendants Lawton and Jackson formed a combination and conspiracy to cheat and defraud plaintiff, by means of false and fraudulent representations and fraudulent concealments and fraud, and did cheat and defraud plaintiff out of at least $11,500, as hereinafter set forth. The complaint then proceeds to narrate the history of the particular transaction which forms the basis of this action. It recites that in the purchase of the Phalen stock the plaintiff had been grossly deceived by Jackson, and paid him $12,600 on the representation it had cost, that when in reality it had been bought for $6,300; that Lawton was aware of that deception; that in or before the month of April, 1884, Jackson, with the knowledge of Law'ton and conspiring with him further to defraud the plaintiff, proposed that the latter should purchase for the pool stock belonging to the estate of one Kennedy, viz.: 130 shares of the Kennedy stock and 190 shares of the Union stock, all which was then in pledge to one Rogers and it was anticipated it would be sold in default of payment of the debt to which Rogers held it as collateral ; that Jackson undertook to make the purchase as cheaply as possible, provided the plaintiff would furnish the money, and that the plaintiff, relying on certain alleged representations as to value and that he would not be called upon to pay more than the shares were bought for, agreed to furnish the money, and thereupon Jackson, with the knowledge, etc., of Lawton, agreed to buy the shares at as small a cost as possible; that all this was a concocted scheme to get money from the plaintiff; that it was first arranged that Lawton was not to be known in the transaction, but that the intended purchase from Rogers falling through because he could' not make title by foreclosing the pledge, the executors of Kennedy’s estate having redeemed the hypothecated stock, the intervention of Lawton became necessary; that the plaintiff had agreed to advance $13,500 for these shares, but their procurement in the manner and for the price contemplated being impossible, Lawton and Jackson conceived another scheme and the latter, with the knowledge and assent of Lawton, represented to the plaintiff that Lawton could purchase for the pool these shares of Kennedy’s estate for $17,650,that Lawton had agreed to purchase them ostensibly in his own name, but really for the pool and that.the plaintiff •believing the representation that Lawton was acting for the pool and not for himself paid Lawton $17,650, who only paid $6,500 for 100 shares of the Kennedy stock and 192 shares of the Union stock; that Lawton was acting in the matter as an agent and that he, the plaintiff, believed he was paying the Kennedy estate through the instrumentality of Lawton; that Lawton’s compensation for his services was to be a sub-interest in the pool, and that by reason of the conspiracy and fraud the plaintiff was cheated out of $11,500. Lawton’s answer only appears on the, record, and he was alone the contestant of the plaintiff on the trial. He admits the purchase of the shares from the Kennedy estate. He denies knowledge or information that Jackson and Thompson were acting for the plaintiff or in conjunction with him, and he avers that they were dealing for themselves as he believed ; that no arrangement or agreement was made with them or either of them by winch they were to profit from the purchase by sharing in the proceeds of a resale to the plaintiff, and that he bought the shares from the Kennedy estate for himself: that he had no interest in the pool and was to have none; and that the plaintiff paid for the share^ on his own judgment"as to their value; that he made no representations whatever to the plaintiff, nor did he'authorize any to be made; that he did not know of the Phalen purchase and was not aware of the facts alleged against him as constituting him a conspirator, and that he did not act as agent in the transaction for any one. ■ .

The non-suit was asked for .on the following grounds: 1st. “ That if the facts show any claim by plaintiff against any one or any claim against Lawton by "any one, it can only be prosecuted in a suit for an account of the pool which the plaintiff's witnesses testify wrs formed consisting of the plaintiff, Jackson, Thompson and Lawton; also that the evidence wholly fails to prove that any misrepresentations were made by Mr. Lawton.” 2d. “In regard to agency the proofs wholly fail to make out that Lawton was employed by Mahville (the plaintiff) to purchase stock from the Kennedy estate." 3d. “The transaction of itself repudiates (sic) any pretense that Lawton acted for Manville to obtain the stock from the Kennedy estate." 4tb. “ That there is no proof of the cause of action alleged in the complaint, and there is no proof of any other, cause of action.” The learned judge at the circuit did not specify on what ground or grounds he dismissed the complaint; the record merely states motion to dismiss complaint granted and plaintiff excepts.” The court declined to allow the case to go to the jury on the question of agency or on any other question.

If the right of -the plaintiff to recover of the defendant Lawton depends upon the establishment of a conspiracy between him and Jackson, and the accomplishment of the purpose for which the conspiracy was formed, it may be conceded there was a failure of proof. Whatever moral impressions one may have on reading the whole proof, there is not that clear, direct and convincing evidence requisite to sustain the allegations of the complaint in that behalf. But that a gross fraud was practised upon the plaintiff by someone is sufficiently shown, and the consequences to him of its perpetration 'was that he was induced to pay $11,500 more than the stock was bought for on his account and that that sum found its way into Lawton’s pocket. But in order to hold Lawton, if lie is otherwise liable for the fraud, it was not necessary that an unlawful or fraudulent combination or confederacy to cheat should be proven as charged in the complaint. Garner v. Mangam, 17 W. Dig., 562. That is not the gist of the action. In Hutchins v. Hutchins, 7 Hill, 107, it is said that an allegation of conspiracy between parties defendant to commit a wrong is. of no. importance as respects the ground and cause of action. “ A simple conspiracy, however atrocious, unless it resulted in actual damage to a party, never was the subject of a civil action, not even when the old form of a writ of conspiracy in its limited and' most technical character was in use." Under that writ, unless the conspiracy was proven the action failed, and it is also said in the case cited that the writ did not lie at common law except where the conspiracy was to indict a party for either treason or felony, whereby his life was put in peril, and after acquittal. All other cases of conspiracy in the books are but actions on the case, and where, several are sued and it turns out on the trial that only one was concerned, the plaintiff may still recover against that one precisely as if he had been sued alone: “the conspiracy or combination is nothing so far as sustaining the action goes, the foundation of it being the actual damage done to the'party.” And so it is likewise said in Verplanck v. Van Buren, 76 N. Y. 259, that in an action on the case for conspiracy of acts of that nature evidence of a technical conspiracy is not essential, and the conspiracy mere matter of aggravation. If, therefore, the complaint in the case at bar contains sufficient allegations, irrespective of the charge of conspiracy, against the defendant Lawton and the evidence supports them, the complaint was improperly dismissed.

Although not stated in a connected or methodical form, enough is set forth in the complaint to charge the defendant Lawton. It is in substance alleged, that he, knowing of the existence of the pool, of Jackson’s authority to buy on account of, or with the money of the plaintiff, of the desire of the plaintiff to procure the Kennedy shares from the then holder of them, of the failure to procure them from Rogers, of the real or supposed necessity of buying them through him as an intermediary, undertook, for a reward to be paid him, to wit: Ms being admitted to an interest in the shares of Jackson and Thompson in the pooled stock, to buy those Kénnedy shares for the pool with the plaintiff’s money; that he did buy certain shares of that stock for $6,500, but charged the plaintiff $17,600 for them, and received the money, and thus by his infidelity and fraud cheated the plaintiff to the extent of $11,500.

The crucial issue of fact relates to the alleged agency, and. the evidence was sufficiently strong on that subject to have carried the case to the jury. There was enough shown to call upon the defendant to meet the issue by countervailing proof. If he were not acting for himself, he was bound to turn the stock into the pool at the price he paid for it. To quote the language of the court (per Rapallo, J.,) in Dutton v. Willner, 52 N. Y., 318, “it is a well settled and salutary rule ‘that a person who undertakes to act for another in any matter shall not in the same matter act for himself.’ It is only by a rigid adherence to this simple rule that all temptation can be removed from one acting in a fiduciary capacity to abuse his trust or seek his own advantage in the position which it affords'him. One consequence of a violation of the rule is that the agent must, at the option of his principal, account to him for any profit he made in the transaction.” Applying this rule to Lawton’s relations with plaintiff, we find the testimony of Jackson direct and clear on the points that Lawton knew a par-chase was sought to be^made by Manville from, the Kennedy estate of stock to he placed in the pool; that the plaintiff’s money or credit was to be used in making it, and that as consideration for his services in effecting a purchase Lawton was to receive one-half of the interest of both Jackson and Thompson in the stock thus to be bought for the pool.

It is true that the plaintiff never spolce to Lawton on the subject until after the stock was bought and paid for, but Jackson testifies that he told Lawton that Manville wanted the stock, and asked him where it could be had, and learning that but 100 shares of the Kennedy Company stock could be procured, Thompson and he agreed with Lawton that if the latter would put in thirty shares of his own stock, and thus apparently secure for Manville the same number of shares of that stock as had been previously represented could be secured, that on the termination of the pooling contract Lawton might take out his thirty shares before there was any division of stock. On the subject of Lawton’s connection with the purchase Jackson swore that Manville arrived in New York from Colorado, which was his place of residence, about May 12th, and on the evening of the same day Jackson and Thompson met Lawton at the New York Club, and Thompson said: “ Mr. Lawton, we have come down to see you. Mr. Man-ville has arrived here to buy 130 shares of the Kennedy brick stock and 190 shares of the Union stock that was hypothecated to Mr. Rogers. Where can we get that stock, as Mr. Manville is bound to have it ?” Mr. Lawton said he did not know where that amount of stock could be had for love or money. He might get 100 shares from the Kennedy estate; he did not know. Mr. Thompson said: “ Mr. Lawton, put in thirty shares of your own stock, and Mr. Jackson and myself will hold you harmless.’’ He further testified: “I never said to defendant Lawton, nor did Thompson ever say in my presence to him, that I was purchasing the stock known as the Kennedy stock through Lawton for myself, or for Thompson and myself, etc. It was clearly understood that the stock was being bought for Mr. Manville. Lawton knew that neither Thompson nor myself, jointly or singly, was buying the stock. It was well known to Mr. Lawton that it was being bought for Mr. Manville.” And again: “Lawton knew that Mr. Thompson represented Mr. Manville. He also knew that Mr, Manville was to be the purchaser of the Kennedy estate stock. I think Mr. Thompson told him so.” Thompson also testifies to facts showing that Lawton knew from the time the subject of a purchase from Rogers was under consideration that Manville, through Jackson or Thompson, was seeking this Kennedy stock, and he says that the matter “was talked over between Mr. Jackson, Mr. Lawton and myself about our having this pooling arrangement with Mr. Manville, and, this stock was to go into the pool. I can’t tell you just how it came up, but the outgrowth of it was that Mr. Lawton was going to loan us money on Mr. Manville’s note, and when the transaction was carried through Lawton was to take with us one-sixth ; that is, so far as this stock was concerned, Mr. Lawton, Mr. Jackson and myself were each to take one-third of the pool when the pool was finally liberated."

This witness also swore that it was well understood by Lawton that “ if this deal went through it was Manville’s money that was going to carry it,” and that if Lawton would advance enough of his own stock to make up the 130 shares it was agreed that those thirty shares should be withdrawn and restored to Lawton before the division of the other pooled stock was made.

In view of the situation of the parties, of the relation of Law-ton to the whole transaction, there was evidence enough to go to the jury that he was acting for other persons; that Manville’s money was to be used in a transaction to buy the Kennedy stock for him directly .from the estate; that it was not contemplated that Lawton himself was to be a principal, and that he knew he was to be merely an agent or negotiator and that he was to find his compensation in being admitted to share in the ultimate division of this particular stock. If the testimony of Thompson and Jackson is to stand uncontradicted as it now does, the agreement they say was made by Lawton with them is utterly incompatible with the idea that he had the right to purchase from the Kennedy estate for himself or that he did so and then dealt at arm’s length for a resale. It was proven by Mr. Jaudon, the executor of Mr. Kennedy’s will, that all Lawton paid for the shares was $6,500. On this question of agency the case was improperly withdrawn from the jury.

It is contended by the defendant that any recovery by the plaintiff must be through an accounting of the pooled interests. But that is not so for two reasons; by the testimony of the witnesses named it is clear that Lawton had no interest in the pool generally, only a sub-interest in the shares to be distributed to Jackson and Thompson, .precisely as a third party may have a sub-interest in one partner’s share of copartnership profits without being a member of the firm, or a proportionate interest in the share of one who is a partner in the assets on a winding up; and- again because the stock only was pooled and not Manville’s money, and this action was brought virtually to recover back so much of that money as it- is alleged Lawton took to himself and which belonged to the plaintiff and no one else.'

We- are of opinion that the learned court erred in dismissing the complaint; that Lawton is liable on the proof as it now stands, and that the judgment appealed from must be reversed and new trial ordered, with costs to the appellant to abide the event

Van Brunt, P. J., and O’Brien, J., concur.


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    John Flanagan, Resp’t, v. John O’Brien et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    ConvKRSioir—Proof of.
    In an action for conversion of tools belonging to plaintiff, the only proof to sustain the action was that plaintiff saw certain of the tools in defendants’ building ; while defendants expressly denied having possession of any of the tools. Held, that without some more specific evidence of assumed dominion on the part of defendants, the evidence was insufficient to establish a liability.

      Appeal from judgment entered on verdict of a jury, and from order denying motion for new trial.

      E. T. Lovatt, for app’lts; L. L. Kellogg, for resp't.
   Van Brunt, P. J.

—This action was brought to recover damages for the conversion of certain personal property alleged to belong to the plaintiff, and which had been converted by the defendants.

The answer consisted substantially of a general denial. Evidence was given tending to show that the defendants had in their possession property which had belonged to the plaintiff, and which had been used" upon certain work which was being done by the defendants, in respect to which the plaintiff was at one time a subcontractor, and subsequently an employee; and also in regard to certain other property which was upon a vacant lot adjacent, to the work.

It is claimed upon the part of the plaintiff that evidence was given tending to show that the defendants had taken possession of this property upon the vacant lot. An examination of the record shows that there was no evidence whatever of such taking of possession, except that in relation to some drills which the plaintiff saw in the building of the defendants.

An examination of the case fails to disclose any evidence from which the conclusion could be arrived at that the remainder of the property was in the possession of the defendants; and there is' an express denial of one of the defendants at least that any of the tools belonging to the plaintiff were in the possession of the defendants. Without some more specific evidence of assumed dominion upon the part of the defendants with respect to these tools, it does not seem to us that a liability should be established.

It is true that upon an examination of the record- this question does not seem to be distinctly raised, but a recovery in an action of this kind should not be permitted where the record is substantially devoid of evidence to sustain it._

It would seem, therefore, that a new trial should be had in order that the doubt in respect to this question may be removed.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs, not to the appellant only, but to the finally successful party, to abide the event of the action.

O’Brien and Patterson, JJ-, concur.


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    Catherine Cook, Resp’t, v. The Long Island Railroad Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Eailboad—Negligence.
    Plaintiff attempted to get. on board defendant’s train, which was standing still, after the conductor had called “all aboard,” and had grasped the rail with one hand, and had one foot on the car step, when she was thrown down by a sudden jolt or jar, as she testified. She was corroborated by five witnesses, who testified that there was such a jolt or jar, while defendant’s witnesses testified that there was only a tremor, caused by taking off the air brakes and which could not be avoided. Held, that-the evidence was sufficient to carry the questions of negligence to the jury, and that it was not error to refuse to dismiss.

      Appeal from judgment in favor of plaintiff, entered upon verdict.

      E. B. Hinsdale, for app’lt; Arthur C. Palmer, for resp’t.
   Patterson, J.

—This action was brought to recover damages for injuries to the person of the .plaintiff, a passenger on the defendant’s railway, which injuries it is alleged were caused by the negligence of the defendant’s servants in charge of and operating a train which the plaintiff was about entering at a station on the line of the road. At the circuit the plaintiff had a verdict, and from the judgment entered thereon and from an order denying a motion for a new trial the defendant appeals, claiming that the complaint should have been dismissed at the close of the plaintiff's proofs,- or at all events on the whole testimony, on the ground that negligence of the defendant was not shown sufficiently to carry the case to the jury, and that there was contributory negligence on the part of the plaintiff proven, and on the further ground that the verdict was against evidence or the cl ear-weight of evidence.

It was shown on behalf of the plaintiff on the trial that on the 7tlr day of January, 1890, she attempted to board a train of the defendant’s at Corona Station, Long. Island. The train had come to a full stop. The conductor, standing on the platform, cried out “ all aboard,” and the plaintiff thereupon proceeded to pass from the station platform to the platform or steps of one of the cars of the train. She had grasped the back hand rail, or that attached to the body of the car, with her left hand, holding in the other hand an umbrella and satchel. She had placed one foot on the car step in the act of getting aboard, her other foot was still o.n the station platform, when suddenly and without any warning or notice being given a jolt or jar occurred of so violent a character that notwithstanding the grasp the plaintiff had upon the hand rail she was thrown down between the platform of the station and that of the car and sustained very serious injuries. In addition to the plaintiff’s own testimony, four other witnesses called by her testified substantially to the same state of facts and corroborated the plaintiff in all the material details of her account of the occurrence.

It is apparent that on the testimony, as it stood at the close of the plaintiff’s proofs, the motion for non-suit was properly denied. The case was presented of a passenger invited by the conductor to enter a train standing motionless at a station, and such passenger, while in the act of entering, being thrown down by a sudden and violent concussion of the car she was about entering. To say the least, this was sufficient evidence of negligence to throw upon the defendant the burden of explanation. In Dillon v. Manhattan R. Co., 16 St. Rep., 767, a plaintiff, while entering a car, after the conductor had called upon passengers on the station platform to enter, was thrown down and injured by a sudden movement of the train, and it was held that even if in order to start the train the movement referred to was necessary, it was the duty of those in charge of the train to give ample time to passengers to get inside the car before an attempt to start were made; and in Bartholomew v. N. Y. C. & H. R. R. R. Co., 102 N. Y., 717; 2 St. Rep., 490, which was a case similar -to this except that the plaintiff was leaving instead of entering a car, one of a train which appeared to have stopped at a station and an announcement had been made authorizing passengers to alight, it was held that the plaintiff was justified in acting on appearances, and if, by a sudden jerk or jolt, of which no warning was given, injury was caused, it was sufficient evidence of carelessness to impose liability upon the defendant.

To meet this view in the case at bar the defendant introduced testimony showing that the train the plaintiff attempted to enter was well equipped with all proper and. sufficient appliances, and also testimony tending to show, and five witnesses deposed to it in substance, that no 'movement of the train took place, and it was further testified to that no movement could have taken place before starting unless it were “ a slight tremor ” occasioned by taking off the air brakes, which it is claimed could not have been avoided. But this testimony did not entitle the defendant to a dismissal of the complaint at the close of the proofs on both sides. It left the question of fact still open as to whether there had been a movement of the car by which the plaintiff was thrown down.

The jar might have been of sufficient force to produce the effect claimed by the plaintiff without the wheels moving any appreciable distance, and the judge charged the jury that the mere letting off the brakes could not of itself have produced the result. On the whole case the subject of negligence of the defendant was properly left to the jury to say what caused the movement, and that question was submitted under proper and apparently satisfactoiy instructions, for no exception is taken to the charge, which was full, clear and quite favorable to the defendant.

There was nothing whatever which would have justified a dismissal of the complaint on the ground of contributory negligence. The plaintiff did everything that a prudent and careful person, could have done while entering the car. She had even gone so far as to grasp the hand rail, and it is impossible to conjecture wherein she was at fault on the uncontradicted testimony as to her acts or conduct at the time.

The denial of the motion for a new trial on the ground that the verdict was against evidence or the clear weight of evidence was correct. Tnere was a sharp conflict of testimony as to the fact of the jar causing a movement of the train and of there being any such violent shock at all as that alleged by the plaintiff. Five witnesses called by the plaintiff testified that there was a “ jar” or “jolt ” or “jog.” On the other hand the train operatives and two or three passengers testify there was not. But a simple numerical preponderance of witnesses could not justify the annulment of the verdict of the jury. The rule has been proclaimed time and again that to authorize the granting of such a motion it must be clear and palpable that the jury erred through misapprehension, caprice or partiality. The .various forms in which this rule has been stated are to be fo.und in the numerous cases cited by Mr. Justice Brady, in the opinion of the court in Hickinbottom v. D., L. & W. R. R. Co., 15 St. Rep., 11, and no further reference to them is necessary here.

The judgment and order appealed from are affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


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    Joaquin Sanchez, Resp’t, v. Andrew G. Dickinson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Account stated—Bill of particulars.
    A party against whom an account is claimed to have been stated is entitled to'a copy of such account on demand, and upon refusal the other party may be precluded from giving evidence thereof.
    Appeal from order precluding the defendant from giving evidence on the trial of this action of a certain account set up in his answer, copies of which after due demand he had neglected to serve upon the plaintiff.

      E. B. Hill, for app’lt; James Byrne, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover a balance alleged to be due the plaintiff from the defendant on a long series of transactions. The answer alleges an account stated; and a demand having been made for copies of the accounts, which were refused, .a motion was made for an order precluding the defendant from giving evidence on the trial of any of such accounts, or the items thereof, which was granted, and from such order this appeal is taken.

It seems to be claimed that the plaintiff had no right to a copy of this account. It appears to us that ■ this is clearly error. If there is any account which a party is entitled to a copy of, it is an account which is claimed to have been stated against him. It is just as necessary for him to know what is contained in an account which is "claimed to be stated against him as in an account upon which a balance is claimed against him. The right of the plaintiff to this account seems to be too plain for argument.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurs.


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    Rudolph A. Lowenthal, App’lt, v. The Philadelphia Rubber Works, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Bill of particulars—Indefinite claim.
    .Where the answer in an action upon .an agreement for a division of net profits alleges that in its statements of account defendant omitted items of charges against profits amounting to more than $10,000, relying on representations that no similar charges were made against the profits of plaintiff’s assignor, the plaintiff is entitled to a bill of particulars of such items.

      Appeal from order denying plaintiff’s motion for a bill of particulars of defendant’s counterclaim.
    Action upon an agreement between plaintiff's assignor and defendant for a division of the "net profits of both corporations in a certain proportion.
    G. C. Coffin and E. S. Clinch, for app'lt; H. W. Jessup, for respt.
   Van Brunt, P. J.

—This action was brought to recover an amount due under an agreement between the plaintiff’s assignor and the defendant, and also for goods sold and delivered.

The' answer set up a defense by way of counterclaim, consisting of allegations relating to different'amounts, one of $7,000, one of $i 0,000, and one allegation general in its character.

The plaintiff thereupon moved for a bill of particulars of the items constituting the sums of money amounting to $7,000, and the items which constituted the charges amounting to $10,000, and a statement of the indefinite sum in the last subdivision of the counterclaim. This motion was denied, and from the order thereupon entered this appeal is taken.

The appellant raises no question in regard to the item of $7,000, in view of the affidavits presented by the defendant in opposing the’motion, but claims upon this appeal that he is entitled to a statement of the items constituting the charges amounting to more than $10,000, and also as to the sum mentioned in the general clause of the counterclaim.

The allegation in the answer is that certain representations were made by the plaintiff’s assignor in respect to the condition of the business, and that when statements were presented to the defendant covering certain periods, they included charges amounting to more than $10,000 against the net profits of the defendant which were properly chargeable against-said net profits in the ordinary course of business, and had always been so charged, but that it was represented to the defendant that no similar charges were made against the profits of the plaintiff’s assignor; and the defendant, relying upon these representations, was induced to omit such charges from its statement of account, which it did under protest.

Now it seems to us that the plaintiff is entitled to know what the charges were which the defendant claims it omitted from its accounts. Neither the plaintiff nor his assignor has any means of" knowing what claim may be presented under this general allegation. We think, therefore, so far as the items composing this $10,000 were concerned, the plaintiff was entitled to a bill of particulars.

. In respect to that portion of the motion which related to the general allegation that the sum-due and owing to the defendant from the plaintiff was largely in excess of any demand which the plaintiff or his assignor is entitled to make against -che defendant, it does not seem that the plaintiff is entitled to any relief, because it is apparent that this allegation is founded upon the previous allegations, and cannot be considered as an independent claim.

The order should therefore be'modified so as to require the defendant to give a bill of particulars of the item of $10,000 mentioned in the counterclaim, and in other respects the order should be affirmed, without costs.

O’Brien and Patterson, JJ., concur.


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    Richard D. Alliger, Resp’t, v. The Mail Printing Association, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    New trial—Libel.
    In an action for libel in publishing concerning plaintiff that he had heen arrested on a charge of forgery, the plaintiff testified that he had never heen arrested, but the rest of his evidence showed that tnis referred to an arrest aS charged in the article. Held, that a new trial would not he granted on the ground of newly discovered evidence that he had heen arrested in an action of conversion, which had heen voluntarily discontinued, as such evidence could have no bearing on the damages sustained by reason of the libel. <-■

    Appeal from order denying motion for new .trial upon the ground of newly discovered evidence.

      J. Lindley, for app’lt; B. N. Cardozo, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover damages for a libel published by the defendant.

It appears that the defendant in the month of September, 1887, published in the columns of its newspaper a statement that the plaintiff had been arrested in a criminal proceeding on a charge of forgery. Upon the trial of the action no attempt was made by the defendant to justify the libel, and the plaintiff 'recovered a verdict in his favor. Subsequently a motion for new trial was made at special term on the ground that material facts had but lately been brought to the defendant’s knowledge and attention ; it being claimed that upon the trial the plaintiff swore that lie had never been arrested, whereas in fact in 1870 he had been arrested in an action for conversion. But it appeared from the papers submitted upon the motion that this action had been voluntarily discontinued, and that the plaintiff had never paid to the plaintiffs in that action any money in settlement thereof.

Even if had been true that upon the trial of this action the testimon/ had been given by the plaintiff as contended for by the defendant upon this motion, it seems to us it would have been a great stretch of the power of the court to order a new trial upon such facts as are set forth upon the- moving papers. But an examination of the record shows beyond question that no such testimony was given by the plaintiff. When he was asked : “ You were never arrested ? the context shows that it was the understanding both of the counsel and the witness that he was never arrested as charged in the defendant’s newspaper. The libel was the charge of arrest. And the witness, after having stated that the libel was repeated in the same paper as the retraction, was asked: “ You were never arrested? A. No.

“ Q. Never guilty of forgery? A. No,” clearly showing that the arrest spoken of related to an arrest for forgery. There would seem, therefore, to be no ground whatever for disturbing the verdict, as the newly discovered evidence could not possibly have any material bearing upon the damages sustained by reason of the libel.

The order should be affirmed, with costs.

O’Brien and Patterson, JJ., concur.