author: WILLIAMS, J.

text:
    John Martin Layman, App'lt, v. John Anderson and Company, Resp't.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 24, 1896.)
    1. Appeal—Verdict.
    When the case is one that should properly be submitted to the jury, the verdict must stand, whether satisfactory to the court or not.
    3. Same.
    It is only where the evidence is uncontradicted or is so preponderating in one direction that a verdict to the contrary would indicate that -the jury were actuated by favor, prejudice or passion, that the court is justified in taking the case from the jury and determining the facts itself.
    3. Same.
    Where there are documents, papers and letters, and circumstances sworn to by witnesses, the effect of which is to be determined, and from which the inferences are to be drawn, the question, of fact must be determined by the jury, and not by the court.
    4, Same.
    Where there is such a conflict in the evidence that the court cannot assume to determine the facts but must leave them to the determination of the jury, the verdict of the jury should not be disturbed on appeal.
    Appeal from an order setting aside the verdict.
    The action was brought upon a contract made February 8, 1890, by and between the plaintiff and defendant herein and one John C. Anderson, wherein it was agreed, so far as it is material here to refer to it, that the plaintiff, in consideration of $35,000,. to be paid him in the capital stock of defendant at par, and mutual agreements therein expressed, sold and transferred to the defendant the business, good will, trade-marks, rights, and privileges conveyed to plaintiff by Anderson by indentures of April 15, 1882 (the business being the manufacture of chewing and other tobacco, and which was carried on prior to April 15, 1882, by Anderson, and subsequent thereto by plaintiff), and all the stock, materials, and supplies on hand, and the defendant agreed to pay plaintiff' therefor $35,000, in capital stock at par, and Anderson, in consideration of $11,000, to be paid him by the plaintiff in such capital stock, assented to the sale and transfer by the plaintiff to the defendant of the rights and property conveyed by the indenture of April 15, 1882, free and clear from all claims on Anderson’s part thereon; and wherein it was further agreed that plaintiff should not engage in any similar business thereafter, but should give all his influence to the interests and success of defendant; that he would pay all the debts and liabilities of the-business then existing, and the defendant might retain, unissued, an amount of such capital stock equal, at par value, to double the amount of the debts, etc., then outstanding. The defendant, under this agreement, at once took possession of the property so-sold and transferred, and has ever since retained the same. The defendant, at the time the agreement was made and the property delivered, made out and executed in due form certificates in plaintiff’s name for 350 shares of its stock, of the par value of $35,000; and plaintiff indorsed the certificates for the purpose of the transfer of the same, and left them with the defendant. Defendant has paid plaintiff, on account of 200 shares thereof, the sum of $20,000, and has retained the remaining 150 shares, but has paid him nothing therefor. There was no dispute as to these facts. The defense alleged on the part of the defendant was that the full amount ($35,000) of stock was issued to plaintiff, and that $15,000 of it was turned over-by plaintiff to the defendant under an agreement, made at the time the defendant was formed, between the plaintiff and, the other parties interested in the defend&ut, that this amount of capital stock should be turned over by the plaintiff to the defendant, to be used for the defendant’s benefit. The whole controvery on the trial was over the question as to whether this agreement alleged was-made, and the $15,000 of ■stock was turned over to the defendant pursuant to the agreement. The plaintiff testified that no such agreement was made, and no such disposition of the $15,000 of stock was made. Six witnesses were sworn on the part of the defendant in support of its alleged defense, and whose evidence bore more or less distinctly upon this question of fact; and documents and letters were also put in evidence, on the one side and the other, bearing upon the question. At the close of the plaintiff’s evidence, and again at the close of all the evidence, a motion was made by defendant to take the case from the jury and direct a verdict for the defendant. The court held that the case was one for the jury, and it was accordingly summed up by counsel, and submitted by the court to the jury, ■and a verdict was rendered for the plaintiff for the $15,000. A motion was made by defendant, upon the minutes, to set aside the verdict, and for a new trial, upon the exceptions taken at the trial, and because the verdict was contrary to the evidence and the law, and for excessive damages. This motion was granted, and from the order so made this appeal is taken.
    Edward C. James and Abram I. Elkus, for app’lt; John M. Scribner, for resp’t.
   WILLIAMS, J.

The real ground upon which the verdict was set (aside was that it was unsupported by the evidence. The learned trial judge evidently regarded the verdict as an improper one to be returned upon the evidence in the case. He refused to hear any argument upon the motion, but granted it as soon as it was made; remarking that he regarded the verdict as a present or gift to the plaintiff of $15,000, to which he had not a shadow of right, and he desired to place on record his disapproval of the verdict. He heard all the evidence, and seems to have had, at the close of the case, very decided views as to what the verdict should have been. We have examined the record and the evidence, and may have formed our judgment as to what the verdict should have been; but it must be remembéred that, if the case was one for the jury, the verdict was not to be the verdict of the trial court or of this court, but of the jury, and the question is not whether the trial court was, or this, court is, satisfied with the verdict, but whether it is a case in which the parties had a rigfht to the judgment of twelve men as to the facts. If the verdict of a jury maybe set aside where the court is not satisfied with it, if the court must be satisfied as well as the jury, then the court may as well dispense with the jury altogether, and make the decision itself. The jury is entirely useless and unnecessary. This is not, of course, the rule. "When the case is one that should properly be submitted to the jury, its verdict must stand, whether it is satisfactory to the court or not. The parties have a right to try before .a jury, and to have its judgment as to the facts, and they cannot be deprived of such right. It is only where the evidence is uncontradicted, or is so preponderating in one direction that a verdict to the contrary would indicate that the jury were actuated by favor, prejudice, or passion, that the court is justified in taking the case from the jury and determining the facts itself. When there is a fair conflict in the evidence; where there are witnesses on either side whose credibility is to be detrmined (especially where the witnesses are parties to or interested in the action); where there are documents, papers, and letters, and circumstances sworn to by witnesses, the effect of which is to be determined, and the inferences from which are to be drawn,—the questions of fact must be determined by the jury, and not by the court. These principles of law are so well settled that no citation <of authority therefor is necessary. We have only to apply them to the evidence in this case.

The defendant, by its answer and on the trial, admitted substantially all the facts alleged by the plaintiff as a basis for a recovery of the $15,000; and his recovery could only be defeated by proving the parol contract to turn over the $15,000 of stock to the defendant after it had been issued to the plaintiff, and the performance of that contract by turning over the stock. The defendant had the burden of proof upon these questions. In the absence of any proof with reference to these questions, the plaintiff, upon the other conceded facts, would have been entitled to a verdict, which the court might well have ordered. The defendant gave its proof as to the parol agreement largely by witnesses who were interested in the event of the action, as plaintiff, who contradicted them, was also interested. The question of the credibility of all these witnesses was for the jury, and not for the court. The only agreement in writing between the parties was the one upon which plaintiff based his right of action. This was under seal, and it made no reference to any such agreement as alleged by defendant. It is said by the defendant that the contract was earned out by the issue of the certificates for 150 shares of stock, as well as the 200 shares, and the indorsement of the whole by plaintiff. That he did indorse the whole is conceded, but that the transaction was an issue to and transfer by him of the stock, under the parol agreement alleged, he denies. It will be observed the written agreement provided that the defendant should retain some unissued stock until certain debts, etc., were paid by the plaintiff. The retaining of the certificates for the 150 shares of stock after they were so indorsed by the plaintiff was not, therefore, inconsistent with the plaintiff’s theory of the transaction. The defendant claims that the real consideration of the transfer of the property by the plaintiff was $20,000. The plaintiff claims the consideration was truly stated in the contract in writing and under seal, and it is certain that the law only permitted stock to be issued in payment for property purchased at its real value. Letters-written by plaintiff were put in evidence, tending to corroborate defendant’s theory of the case, and were proper for the consideration of the jury. J.'lie effect of all the evidence in the determination of the controverted questions of fact, we think," was for the jury, and not for the court. We do not desire to consider or discuss the evidence in detail. It is sufficient for us to say that in our opinion there was such a conflict in the evidence that the court could not assume to determine the facts, but must leave them to be determined by the jury, and the verdict of the jury should not be disturbed by the court. Upon ah examination of all the evidence, we may say that we would have been better satisfied, had the verdict been the other way. The balance of probabilities impresses us as inclining in favor of its claim. But the final pre* ponderance in its favor upon all the evidence is not so great as to bring the case within the rule which permits a verdict to be set •aside only when it is reached through partiality, passion, or prejudice.

We conclude, therefore, that the order setting aside the verdict was erroneous, and it should be reversed, with costs.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Adele W. Leach, Resp't, v. Friend C. Haight et al., App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 24, 1896.)
    Deposition—Instruction and discovert.
    Where there is absolutely nothing shown to entitle the plaintiff to an inspection of books and papers in order that she might prepare her complaint, but, on the contrary, the petition which she presents to the court shows that she is in possession of every fact or circumstance that will be necessary for her to know in order that a formal complaint may be prepared, no case is made out for an order for inspection of books prior to the joining of -issue.
    Appeal from an order, directing the inspection and discovery of certain books of account.
    Plaintiff’s petition for the discovery is as follows:
    The petition of Adele W. Leach respectfully shows: That she is the plaintiff in the above-entitled action, which is brought for the purpose of recovering damages against the defendants for the misappropriation of the moneys of your petitioner. That the said defendants are co-partners in the business of buying and selling stocks and other securities, as agents and brokers, on commission, and, as such agente and brokers for the plaintiff, received certain moneys of her, for the purpose of buying and selling certain stocks and other secuities, between the 28th day of August, 1895, and the 9th day of November, 1895, to the amount of twenty-five thousand dollars. That said action is about to be commenced by the service of the summons and complaint therein, and a copy of the summons therein is hereto annexed. That it is necessary for your petitioner, in order to enable her to frame her complaint, to obtain a discovery or inspection of certain books, to wit, the order book and journal of the defendants, which said books relate to the merits of said action, and are in the control and possession of the said defendants; and your petitioner has no means whatsoever of obtaining the said facts and information, save from an inspection of said books. That the information sought to bo obtained from the discovery and inspection of said books is as follows: Of whom the defendants bought certain stocks, securities, and other values, for account of your petitioner, between the 28th day of August, 1895, and the 9th day of November, 1895, and to whom they sold certain stocks, securities, and other values, for account of your petitioner, between the 28th day of August, 1895, and the 9th day of November, 1895; and that said books contain such information. That your petitioner has demanded of the defendants the said facts and information, and leave to inspect said books; but said defendants have utterly failed, refused, and neglected to give to your petitioner said facte and information, or to give your petitioner leave to make such inspection. Wherefore your petitioner prays that this court may grant an order that the said defendants to give your petitioner an said books, or require said defendants to give your petitioner an inspection and copy of said books, so far as they contain the transactions between your petitioner and said defendants, or permission to take a copy thereof. And your petitioner will ever pray.
    ADELE WARNER LEACH.
    Dated New Tork, March 10th, 1896.
    H. W. Simpson, for app’lts; William J. Lippmann, for resp’t.
   PER CURIAM.

This order must be reversed. There was absolutely nothing shown to entitle the plaintiff to an inspection oí books and papers in order that she might prepare her complaint, but, on the contrary, the very petition which she presented to the court shows that she was in possession of every fact or circum.stance that would be necessary for her to know in order that a formal complaint might be prepared. She states that the defendants misappropriated her moneys between the 28th of August, 1895, and the 9th day of November, 1895, and that she left with' them during that period the sum of $25,000. Those are the only facts necessary to set up in a complaint. The allegation in her petition that it is necessary for her to know of whom the defendants bought stocks or securities for account of the plaintiff between the dates named, and to whom they sold securities on her-account, is unavailing. That is mere matter of evidence, which has no place in the complaint at all. It is not stated anywhere in the petition that it is necessary to examine these books even for the purpose of ascertaining what amount of damages to claim, in a complaint, but the whole thing has the appearance of a pro-' ject t-o search through the defendant’s hooks to find out whether the plaintiff has a cause of action or not.

The order is reversed, with $10 costs, and the motion for the inspection of hooks and papers is denied, with $10 costs.


author: PATTERSON, J.

text:
    Alice E. Harrington, as Administratrix, etc., Resp't, v. Village of Warsaw, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 24, 1896.)
    Venue—Convenience oe witnesses.
    Motion to change place of trial for convenience of witnesses will not be denied, for the reason that the adverse party oilers to stipulate to refer the cause, where it is not such as in its nature would be referable upon compulsion.
    Appeal from an order, denying a motion to change the place of trial.
    Frank W. Brown, for app’lt; Charles M. Earle, for resp’t.
   PATTERSON, J.

This is an appeal from an order denying the defendant’s motion to change the place of trial from the county of New York to the county of Wyoming. The plaintiff,, as administratrix, etc., of her deceased husband, brought this-action against the village of Warsaw to recover upon a quantum meruit for services rendered by her husband in his lifetime and as an attorney and counselor at law to and upon the employment-of the defendant. The complaint contains the ordinary -allegations in cases of this character, hut sets out specifically the f aetthat the employment of Mr. Harrington was for the purpose of rendering counsel and advice and assisting in an action or legal proceeding pending or in contemplation, and advising in the matter of the construction of a system of waterworks for the defendant village, and in selling and disposing of bonds to be issued in connection with the construction of the water works referred to; and that the services rendered by Mr. Harrington to the defendant also consisted, among other things, in the preparation of newspaper articles advocating the establishment of the water works-system, in drawing the papers in regard thereto, consulting and advising with the officers of tire defendant with reference thereto, the preparation'of memorials for the legislature, advising with the village trustees, and the preparation of the bonds to he issued for-the cost of construction of the water works, and various other matters not connected with the trial or preparation of causes pending in the court; for all of which the plaintiff demands the sum of $1,700. -The answer admits the employment of Mr. Harrington, but in one action only, the title of which is given in the answer, and in one specific other matter, namely, that of assisting and preparing the bonds to be issued for the water works system, and it is alleged that the services rendered by Mr. Harrington were worth the sum of $200, and no more. The plaintiff was appointed administratrix in Wyoming county, where she resided with Mr. Harrington at the time of his death, which occurred in July, 1895. All of the transactions which the plaintiff alleges took place, and all of the work and labor and services hé rendered upon 'the employment of the defendant, were so rendered in the county of Wyoming, and, such being the situation, the defendant moved to change the place of trial from Hew York county to Wyoming county, on the ground, particularly, of the convenience of witnesses. The court below denied the motion, and seems to have done so in view of the stipulation which the plaintiff agreed to malee provided the venue were not changed, namely, to consent to a trial of the action before a referee, and this stipulation seems to have been influential with the court below, for in its decision the remark is made that, in view of the stipulation to refer, the motion to change the place of trial is denied, without costs. If that were the only ground which the motion was denied, a reversal of the order would necessarily follow, for the case was not in its nature such a one as could be referred upon compulsion, and the effect of the order would be to give to the plaintiff the double advantage of defeating the defendant’s motion and of trying the cause, which should be tried before a jury, in another way. But, assuming that that was not the only reason which implied a denial of the motion, but that it was decided upon the merits of the application, we are convinced that the order was wrong, and that the motion should have been granted. From the nature of the action and from the contents of the affidavits in the motion papers it is apparent, in the first place, that much of. the history and details of the scheme of the Warsaw water works system must be the subject of investigation at the trial, as well as the actual service rendered by Mr. Harrington in the various matters referred to in the complaint and answer. The defendant’s affidavits show that witnesses residing in Wyoming county, namely, the trustees of that Milage, eight in number, of whom certainly three or four will be necessary witnesses, must be examined at the trial. There are also sevgu or eight other witnesses to the facts as to services rendered by Mr. Harrington, and also others as to the value of the serMces so rendered. In opposition to this, two things are set forth by the plaintiff, the first of which is that she has offered to stipulate that the facts sought to be proven by the defendant by four of its designated witnesses may be considered as proven in the case, and that some of the facts which the defendants claim would he proven by some seven other witnesses may be regarded also as facts in the case. But these stipulations are neither sufficient in substance nor form to bind the plaintiff to the admission of every fact which those witnesses might testify to*, and the defendant should not be exposed to the risks which would attend the conduct of a trial upon such vague and general stipulation. In the second place, the plaintiff resisted the motion on the ground that the material and necessary witnesses on her behalf outnumbered those required by the defendant. Some ten or twelve witnesses are named by her, of whom half are lawyers, whose testimony would go merely to the question of the value of Mr. Harrington’s services. It is not to be assumed that any court would allow six witnesses on a side as to the value of a lawyer’s services; and here, according to the plaintiff’s own showing, there were but two subjects of employment, one being that connected with the preparation of a cause in court, and the other literary and other work and personal efforts in connection with the Warsaw water works system. How these six gentlemen, lawyers in and about the city of Hew York, could be available as literary experts or negotiations for the sale of bonds is not made to appear. Evidence of the brokers, Messrs. Moller & Shepard, might doubtless be material on the trial of the cause, but there is no reason why they should not be subpoenaed to attend at Wyoming county, or their convenience outweigh that of the great number of witnesses for the defendant who would have to be brought to the city of Hew York, and maintained here at considerable expense awaiting the trial. But, the defendant having expressed a willingness to stipulate that the correspondence between Mr. Harrington and Messrs. Moller & Shepard may be used in evidence, or that the depositions of those gentlemen may be read at the trial, instead of their personal attendance being required, we think, under the circumstance, that it is but just to hold it to that offer. The only other remaining witnesses are the plaintiff and two memebrs of her family, and it is unnecessary to say that simply on her behalf and for their convenience nothin is shown to justify the denial of the motion.

The order appealed from must be reversed, with $10 costs and disbursements of appeal, and the motion to change the place of trial be granted, with $10 costs to abide event, upon the defendant stipulating that the testimony of the two witnesses referred to may be taken by deposition and read on the trial with the same force and effect as if they were examined orally at the trial, and that the correspondence between Mr. Harrington and those witnesses may be read in evidence on the part of the plaintiff, subject to all other legal objections except that of competency.

All concur.


author: PARKER, P. J.

text:
    Charles Burns, Resp't, v. Glens Falls, Sandy Hill and Ft. Edward Street Railroad Company, App'lt.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. Master and Servant—Tort.
    A master is responsible lor the acts oí his servant within the general scope of his employment, while engaged in the master’s business, and done with, a view to the furtherance of such business, whether the act is done negligently, wrongfully or even willfully.
    2. Same—Instruction.
    A request to charge, in an action for wrongfully ejecting plaintiff from a car, that, if the conduct of the conductor was willful, malicious and done for a purpose of his own, the defendant is not liable, is properly refused.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the judge’s minutes.
    G. M. Ingalsbe (Potter & Lillie, of counsel), for app’lt; W. E. Young, for resp’t.
   PARKER, P. J.

This case was sent to the jury upon the question of fact whether the conductor used unnecessary violence or inflicted unnecessary indignity upon the plaintiff while ejecting him from the car. On that question the jury have found for the plaintiff, and the defendant asks for a new trial, on the ground that such verdict was not sustained by the evidence, and also for alleged error in the charge of the court.

Although the conductor testified that the car stopped, and plaintiff was put off, at a point something over five hundred feet from where plaintiff’s witnesses Yarter and Young stood, yet they testified that it stopped in front of the Halfway House, where they were sitting; one of them says about thirty feet away. They claim not only to have seen the transaction, hut that the car stopped where they could see it; and on the question of fact the evidence on the part of the defendant is very far from being so conclusive that the verdict of the jury should he disturbed. Thompson v. Vrooman, 21 N. Y. Supp. 179; Sweeny v. Mayor, 43 St. Rep. 642; Baird v. Mayor, 96 N. Y. 567; Newman v. Wilson, 78 Hun, 295; 60 St. Rep. 243.

The claim of error in the charge is that the court did not properly instruct the jury as to what would be the effect upon the defendant’s liability if the conduct of the conductor was willful and! malicious, and done with a purpose of his own. The rule of law upon that subject seems to he settled substantially as follows:

“For acts of the servant within the general scope of his employment, while engaged in Ms master’s business, and done with! a view to the furtherance of that business and the master’s interest, the master will he responsible, whether the act be done negligently, wantonly, or even willfully. In general terms, if the servant misconducts himself in the course of his employment,, his acts are the acts of the master, who must answer for them. There are intimations in several cases of authority that for the-willful act'of the servant the master is not responsible. * * * But these intimations are subject to the material qualifications-that the acts designated ‘willful’ are not done in the course of the service, and were not such as the servant intended and believed to he for the interest of the master. In such case the master would not he excused from liability by reason of .the quality of the act. * * * If a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible; so that the inquiry is whether the wrongful act is in the course of the employment, or outside of it, and to accomplish a purpose" foreign to it.” Mott v. Ice Co., 73 N. Y. 543-547.

See, also, Ochsenbein v. Shapley, 85 N. Y. 215-220.

In Hoffman v. Railroad Co., 87 N. Y. 25-32, it is said:

“The defendant is responsible unless the brakeman used his . authority as a mere cover for accomplishing an independent and wrongful purpose of his own.”

See, also, Meehan v. Morewood, 52 Hun, 566; 23 St. Rep. 487.

Three requests to charge were made by defendant’s counsel, each one of which was a separate and distance proposition, and each one of which must stand or fall by itself. The first was that, if the conductor’s act was willful, the defendant was not liable; clearly, a proposition not sustained by the rule above quoted. The second request was that, if his conduct was malicious, the defendant was not liable; a proposition evidently not sustained by the above rule, for it is there said that, though the act be “wantonly or even willfully done,” the master is liable if it was-done in the course of his service, and intended to he for the master’s interest. The third request was that, if the acts were-done “with a purpose of his own,” the defendant was not liable. Manifestly, this proposition is not a correct one, for the purpose-of his own might have been to put the plaintiff off the ear, in the interest of defendant, and in obedience to his instructions. Such a purpose, clearly, would not exonerate the defendant. The test is not on the “quality of the act,” hut whether or not it is done outside of the servant’s employment, and to accomplish a purpose of his own foreign to such employment; and neither of the recraests includes that element in the proposition it presents. But the court charged the last proposition with some modification, and the defendant complains that in so doing he misstated the rule. The statement was substantially to the effect that, so far as the conductor was acting in the performance-of his duty as agent of the defendant, the defendant was liable for his acts; hut if the altercation was one between the conductor and the plaintiff, Avholly unconnected with the business of the defendant, the defendant would not be liable. Both of the propositions contained in that statement are correct; and, if counsel desired a more full explanation as to just what the conductor’s motives and purposes must be in order to exonerate the defendant, he should have made specific requests to charge, in which the correct rule was stated. Certainly, the requests which he did make were not correct, and the only exception he took to the charge was that it did not conform to those requests.

The other exceptions taken to the charge, and to the refusals to charge as requested, are not pressed by the defendant, and we do not discover any error in them. Our conclusion is that the judgment should be affirmed.

Judgment and order appealed from affirmed, with costs.

HERRICK, MERWIN, and PUTNAM, JJ., concur; LANDON, J, concurs in the result.


text:
    First National Bank of Hoosick Falls, Resp't, v. Truman J. Wallace et al., Def'ts. Subsequent Judgment Creditors, App'lt.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. Attachment—Firm—Affidavit.
    In order to sustain an attachment against a firm, it is necessary for the creditor to show that the affidavit upon which it was granted contained a statement of facts from which the judge who granted it, in the exercise of his judgment, could legally infer that the firm made such assignment with intent to defraud its creditors.
    3. Same—Opinion.
    The opinion of the affiant is not a fact upon which the judge's conclusion may be based.
    3. Same—Information and belief.
    Where the facts are stated on information and belief, the sources of the information and the grounds of the belief must be also stated, so that the judge may himself determine whether they have a proper basis upon which to rest.
    4. Same—Honest intent.
    Where, the facts stated are as consistent with an honest intent as they are with a fraudulent one, fraud may not be inferred from them.
    5. Same—Fraud.
    The prior fraudulent act of one of the partners in diverting the funds of the firm to his individual debts, or his design to secrete his assets to his own use, unless it was known and acquiesced in by the other partners, is not a ground for an attachment against the firm’s property.
    Appeal from an order, refusing to vacate an attachment against defendant’s property on motion of subsequent judgment creditors.’

      Davenport & Hollister, for app’lts; Geo. E. & H. J. Greene, for resp’t.
   PARKER, P. J.

The defendants are co-partners, doing business under the firm name of Wallace, Jones & Ely, and the plaintiff claims that as such they are indebted to it in the sum of $23,-000 and upward. It also claims that the defendants have disposed of their property with the intent to defraud their creditors, and on that ground it has procured and caused to be levied an attachment against their property. The attachment recites that the defendants are co-partners, and that “they have assigned, disposed of, and secreted their and its property with intent to defraud its and their creditors,” and directs the sheriff to attach and safely keep the property of the defendants. The action therefore is against the defendants jointly as a firm, and the attachment is against the firm’s property. Other creditors of the defendants, having subsequently obtained judgment, levied an execution upon the property attached, moved at special term to vacate such attachment on the papers upon which it was granted, and from the order denying such motion this appeal is taken.

The transfer complained of is a general assignment made for the benefit of creditors. There is no distinct statement in any affidavit that such an assignment was ever made, and we are left in ignorance whether the one complained of assumed to convey, firm property only or to include the individual property of the partners; but from the whole tenor of the affidavits it may, perhaps, be assumed that the firm had assigned its firm property to pay its firm debts. Starting with that assumption, it becomes necessary, in order to sustain this attachment against a firm for the plaintiff to show that the affidavit upon which it was granted contained a statement of facts from which the judge who granted it, in the exercise of his judgment, could legally infer that the firm made such assignment with intent to defraud “ife creditors.” Bogart v. Dart, 25 Hun, 395; Central Nat. Bank of Troy v. Ft. Ann Woolen Co., 24 N. Y. Supp. 641; Id., 76 Hun, 610; 57. St. Rep. 316. The opinion of the affiffiant is not a fact upon which the judge’s conclusion may be based. Ladenburg v. Bank, 87 Hun, 269, 275; 67 St. Rep. 466; Bank v. Barker, 16 N. Y. Supp. 75. And if the facts are stated on information and belief the sources of the information and the grounds of the belief must be also stated, so that the judge may himself determine whether they have also a proper basis to rest upon. Buell v. Van Camp, 119 N. Y. 160-164; 28 St. Rep, 947; Hitner v. Boutilier, 67 Hun, 203; 51 St. Rep. 518. And if the facts stated are as consistent with an honest intent as they are with a fraudulent one, fraud may not be inferred from them. Stow v. Stacy, 30 St. Rep. 308; Morris v. Talcott, 96 N. Y. 107. After a careful study of the affidavit upon which ‘’-"s attachment was granted, I have been" unable to discover the statement of a single fact from which it can be legally inferred that the assignment complained of was made with a fraudulent intent. The affidavit of Getty tends to show that the partner Wallace had the general control of the co-partnership funds, and that the affiant verily believes he had appropriated $2,530.40 thereof to the payment of his individual debts; also that he transferred to his wife some of his individual property a short time before the assignment. He also says that he believes from the affidavits of Jones, Easton, and Green that the assignment was made with the intent to defraud, but, as those affidavits were before the judge who granted the attachment, a statement of his opinion of them added nothing to their effect. The affidavit of Jones tends to show that for years Wallace had kept the books which showed the financial condition of the firm, and that, so far as he knows, the other partners did not know much about it. The affidavit of Easton shows that a short time before the assignment Wallace gave him the film’s note for a debt which he (Wallace) personally owed, and that Easton now holds it against the firm’s assignee. How, in neither of these affidavits is there a fact stated that is not consistent with an honest purpose on the part of the firm in making their general assignment. Concede that Wallace transferred all his individual property to his wife; concede that the firm trusted him entirely with the management of its financial affairs, and that he, betrayed such trust, used the firm’s moneys to pay his individual debts,—do such facts impeach the good faith of the firm, which, after it discovers them, and finds that it has no funds with which to meet the drafts upon it, makes a general assignment for the benefit of all its creditors? There is not a statement in any of those affidavits that tends to show that the other co-partners in any way connived with the acts of Wallace; on the contrary, it would appear that they had been defrauded by him, and were therefore forced to make the assignment. Hot a fact is suggested in any of them that the co-partners as a firm have secreted or reserved to themselves any of the firm assets. The only other affidavit is that of M. Green. He also swears that he believes from the affidavits of the others above named that the assignment was made with intent to defraud; but it appears that his belief in that respect is based upon very insufficient grounds.

It remains to examine the statement of fact contained in his affidavit. It states that on April 22d the “defendant purported to make an assignment,” and that from the facte thereinbefore stated in his affidavit he believes it was with the intent to defraud their creditors. But the only facts before stated go to show that Wallace deceived him with reference to paying certain notes he held against the firm; nothing whatever implicating the co-partners in any fraudulent designs. He then goes on to state that the assignment did not intend to, and did not, convey all the firm’s assets. The language of the assignment is the best evidence of what it conveyed, and his statement of what was intended, or what it conveyed, was but the statement of an opinion. The language of the instrument is the source from which the judge should draw his own conclusion. The affidavit then goes on to state thate Wallace secreted a large amount of the firm assets before the assignment was made. Concede it; nevertheless, if they were firm assets, they would pass by the assignment to the assignee, and, unless the other partners were privy to such concealment, it would not affect the good faith of the assignment. It was Wallace’s fraud on the firm, not the firm’s fraud on its creditors. He next states that in the assignment is an attempt to prefer the estate of Lyman Wilder, deceased, of which the defendants Wallace and Jones were executors, to the amount of $12,300; that such attempt is fraudulent, and is an effort to pay with the firm’s assets money that the firm never borrowed from the executors, and that Wallace had appropriated to his own use. Now, if there were a direct statement that the firm had in such assignment preferred such executors to the amount of $12,300, and that no such debt was owing them by the firm, we would have before us a fact from which a fraudulent intent might be inferred, and, if such was the fact, it was a very easy thing to have so stated it. But the affiant makes no such statement. He says an attempt to so prefer was made. What the assignment really provides on that subject is not disclosed. So he says the firm never borrowed the money from the executors. If it had borrowed from the deceased, or if it had guarantied its payment for one who did borrow from the executors, it might still owe the executors the full amount. Also he says Wallace had the money, and appropriated it to his own use. Possibly Wallace borrowed the money and the firm guarantied its payment, and took security from Wallace for so doing. Possibly Wallace stole the money from the firm after it borrowed from deceased. The facts connected with the transaction are not stated. As to the $4,500 note, a part of the $12,-300, the affiiant believes from an examination of Wallace’s bank account that the firm had no part of it. But would such account show whether the firm had it, and what does it show? The affiant’s idea of what it shows, and his belief deduced therefrom, is not the fact upon which the judicial mind could base a conclusion. The trouble is that no fact is stated in this connection from which it could be inferred that the firm had preferred to the executors a debt that it did not owe them. A valid indebtedness to that amount is entirely consistent with every statement made in that affid avit, and hence no intent to defraud can be based upon it. As to the remaining averments in this affidavit, it is not necessary to analyze each by itself. It is sufficient to say that none of them are inconsistent with an honest purpose on the part of the firm in making the assignment in question. I conclude, therefore, that the prior fraudulent act of Wallace in diverting the funds of the firm to the payment of his individual debts, or his design to secrete its assets to his own use, unless it was known to and acquiesced in by the other partners, would not be ground for attachment against the firm’s property. I* further conclude that there is no fact shown in the moving papers from which the judge might lawfully infer that the co-partners of Wallace were privy to his fraudulent designs, or that they made the assignment in question with the intent to defraud their creditors. In this matter the defendants are not the moving parties. If they were, the special term, in the exercise of its discretion, might perhaps have required them to affirmatively show that the firm was not privy to Wallace’s acts, and because they did not, on affidavits, fully explain the whole transaction, it might have allowed the attachment to stand. But subsequent lienors have not the means for such a full explanation, and the case becomes one of strict legal right between rival creditors, each claiming the better lien; and the sole question presented is whether the affidavits upon which the attachment was granted w;ere sufficient to warrant it. Haebler v. Bernharth, 115 N. Y. 463; 26 St. Rep. 230. For those reasons the order of the special term should be reversed, with costs.

Order appealed from reversed, with costs and disbursements, and the motion to vacate the attachment granted, with costs.

All concur.


text:
    First National Bank of Saratoga Springs, Resp't, v. Edward J. Slattery et al., App'lts.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. Pleading—Motion to strike out.
    The court has, in a proper case, power to strike out any affirmative defense, if it clearly appears that it is a false one.
    '2. Same—Sham.
    But the court cannot strike out a, counterclaim as sham.
    3. Same.
    The defendant is not at liberty to call facts a “defense” when he serves his answer, and a “counterclaim” when a subsequent emergency or convenience makes the chang’e desirable.
    4. Same.
    An answer, in an action on a note, which alleges that defendant sold and delivered to the plaintiff certain bonds for which plaintiff is still indebted to defendant, followed bv the statement that plaintiff has not accounted to defendant for their value, will be stricken out as sham.
    5. Sale—Deposit.
    A deposit of bonds as collateral security is not a sale of them.
    <3. Pleading—Corporation—Denting corporate existence.
    Where, in an action by a hank, the first paragraph of an answer denies on information and belief that the plaintiff is a banking association by the name set forth in the complaint, and the second paragraph avers, on information and belief, that there is no such corporation as the “First National Bank of Saratoga. Springs,” as. alleged in the complaint, neither of these averments is an affirmative allegation that the plaintiit .s not a corporation and raises no issue over that question.
    Appeal from an order striking out a portion of the answer as sham, and directing judgment for plaintiff on the remaining part of the answer as frivolous.
    Pratt & Logan (Lewis W. Pratt, of counsel), for appl’ts; Edgar T. Brackett (W. P. Butler, of counsel), for resp’t.
   PARKER, P. J.

The Code (section 538) gives the court authority to strike out a sham defense. It may not strike out a counterclaim as sham, for that is not a “defense,” within the meaning of that section. Collins v. Swan, 7 Rob. (N Y.) 94; Fettretch v. Mackay, 47 N. Y. 427. Nor can it strike out an answer which consists of a mere denial, for the reasons given in Thompson v. Railway Co., 45 N. Y. 468. But we have no doubt of its authority, in a proper case, to strike out any affirmative defense, if it clearly appears that it is a false one. Bank v. Spencer, 76 N. Y. 156; Robert Gere Bank v. Inman, 51 Hun, 97; 24 St. Rep. 160; Alb. Co. Bank v. Rider, 74 Hun, 349; 56 St. Rep. 391. The special term, therefore, had authority to strike out the defense contained in the fifth paragraph of the answer in this action, unless it is to be considered a “counterclaim.” The pleader has not designated it as such. On the contrary, he has called it a “defense.” There is a marked distinction recognized in the Code between a defense and a counterclaim. See sections 500 and 507; also, the definition of a “counterclaim” in section 501. See, also, Eettretch v. Mackay, above cited. And, when the pleader designates the facts which he sets forth as a “defense,” the court will conclude that he so intended them. He will not be at liberty to call them a “defense” when he serves the answer, and a “counterclaim” when a subsequent emergency or convenience makes the change desirable. Morris v. Chamberlin, 14 N. Y. Supp. 702; Society v. Cuyler, 75 N. Y. 511; Acer v. Hotchkiss, 97 N. Y. 395-408.

The matter stricken out, therefore, must be treated as a defense, and, as such, we have no doubt but that it was a sham one. There are hardly facts enough stated in it to constitute a defense. There is an averment that defendant sold and delivered to plaintiff certain bonds, of the value of $15,000, for which it is still indebted to defendant; but this is followed by the statement that “plaintiff has not accounted to said defendant for the value of said bonds.” Why should plaintiff account for their value if it had purchased the bonds? Such an averment is utterly inconsistent with the idea of a sale. There is no averment of a request, or of a price fixed, or of a promise by plaintiff to pay what the bonds were reasonably worth; no facts showing a sale, except what may be inferred from the use of the words “sold and delivered.” Certainly, the pleader has not fairly and squarely set forth a contract of sale, and his suggestions of a liability on plaintiff’s part to account to him for their value raises the serious question whether a sale was ever made.

It is suggested by the appellants points on this appeal that, “if the bonds were originally delivered to the plaintiff as collateral, such a transaction would constitute a sale and delivery;” and it is quite probable that the pleader had this same idea when he drew this part of his answer. Very clearly, it would be no defense to the action on the note that the plaintiff held bonds as security for its payment; and, just as clearly, a deposit of bonds as collateral security is not a sale of them. In opposition to this, the affidavit of plaintiff’s cashier squarely and distinctly states that the bonds were never sold to the plaintiff; that'they were deposited with it as collateral security, for an indebtedness of which the note in suit was part; and that the averment, in the answer, of a sale and delivery of them, is absolutely and wholly false. This statement is in harmony with, and to some extent corroborated by, the averment in the answer that plaintiff has not accounted to defendant for the value of the bonds. The defendant does not specially deny this statement, nor attempt to explain the real transaction concerning the bonds. He makes a new affidavit, to the effect that the statements in his answer are true, and adds nothing more to it. Such a response is altogether unsatisfactory, and leaves no doubt as to the propriety of the action of the special term. Tim defense attempted to be set up was clearly sham and false, and Avas properly stricken out.

The first paragraph of the answer denies, on information and belief, that the plaintiff is a banking association by the name set forth in the complaint. The second paragraph avers, on information and belief, that there is no such corporation as the “First National Bank of Saratoga Springs,” as alleged in the complaint. Neither of these is “an affirmative allegation that the plaintiff is not a corporation,” and hence they raise no issue over that question. Code, § 1776; Association v. Read, 93 N. Y. 474.

The making and delivering of the note to plaintiff are admitted, and no other allegation in the ausAver raises any issue over any material fact Avhich plaintiff Avould have to prove to establish his claim against the defendant. All of the answer was frivolous, and judgment against defendant Avas properly ordered thereon.

The order of the special term Avas right, and should be affirmed with costs.

Order appealed from affirmed, with costs and disbursements.

All concur.


author: P.

text:
    People ex rel. Depew and Southwestern Railroad Company v. Board of Railroad Commissioners of State of New York et al.

    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    Dissenting opinion. For majority opinion, see 73 St. Rep. 578.
   P.

(dissenting). The Depew & Southwestern Railroad Company filed its articles of association on June 15, 1895. The Terminal Railway of Buffalo filed its articles of association on June 17-, 1895. Each made application upon the same day to the board of railroad commissioners for the certificate required by section 59 of the “Railroad Law” (Laws 1892, e. 676). Such board heard the two applications together. Upon the hearing, it appeared that each company proposed'to build a road from the village of Blasdell to the village of Depew, a distance of about eleven miles, all in the county of Erie; and that the road and its construction, as proposed in the articles of association of such company, was precisely the same. It also appeared beyond all question that public convenience and necessity required the construction of such road, and that each company had duly published a copy of its articles of association, as required by said section 59. The board refused to grant any certificate to the Depew & Southwestern Railroad Company, and did grant a certificate to the Terminal Railway of Buffalo. The former company thereupon obtained a certiorari to review the legality of such proceedings and determination, and this matter now comes before us upon the return of such writ.

The board, in its decision, states “that one line can perform all the service that will be required of it, for the present at least, and that the granting of one application must necessarily mean the denial of the other.” It then proceeds to examine “the equities” of the two companies, and reache-s a conclusion in favor of the Terminal Company, substantially on two grounds: (1) That it appears from 'the profile and map filed by the two roads that such company’s road has a considerably less number of grade crossings of other railroads than the Depew & Southwestern has; (2) that the Depew & Southwestern Railroad will evidently be constructed by capital interested in the Lehigh Valley Railroad Company, a foreign corporation, while the Terminal road would be constructed by capital interested in the New York Central & Hudson River Railroad Company, and that, therefore, in their judgment, the New York capital should be favored as against the nonresident and foreign capital.

The claim of the relator is that upon the conceded facts appearing before the board, and accepted by it, the certificate should have been issued to it, instead of to the Terminal Company. The Terminal Railway of Buffalo has obtained an order of court bringing it in as a party to these proceedings, and is now before us, defending the action of the board.

I concede, at the outset of this examination, that, if the two companies stood with equal legal rights before the board at the time they made the application for a certificate, the relator can have no relief in these proceedings. But the relator claims that it became a duly-organized railroad company on June 15, 1895, and that the Terminal Company was not organized until June 17, 1895; that, by reason of such priority in organization (inasmuch as the road proposed by both companies is identical), it acquired a prior right to the certificate, if, in the judgment of the commissioners, but one road was necessary. To this it is answered by the Terminal Company that neither company became organized until it had obtained the certificate required by section 59; that no association of individuals can become a railroad corporation until it'has complied with all the laws of the state regulating the granting of such privileges, and that one of those laws is found in said section 59, and is to the effect that before any railroad corporation can exercise any of the powers conferred by law upon such corporations, or begin the construction of its road, it must secure from the board of railroad commissioners a certificate that public convenience and a necessity require the construction of the railroad as proposed in its articles of association; that, therefore, when the application was made to the board, neither company had perfected its organization, and neither could claim a preference over the other on that ground. In other words, the claim is that, by such section, the board of railroad commissioners is given the power of granting or refusing incorporation as a railroad company to any persons applying for such a franchise. I do not so construe the provisions of that section, and aside from the question whether the legislature has the power, under the constitution, to devolve such a power upon the board, an examination óf the statutes regulating this subject, and a reasonable construction of the requirements of section 59, convince me that no such power was given, and that none such was intended.

By section 2 of the railroad law it is provided that “fifteen or more persons may become a corporation for the purpose of building, maintaining and operating a railroad,” etc., “by executing, acknowledging and filing a certificate, in -which shall be stated,” etc. Section 9 of the general corporation law (chapter 687, Laws 1892) provides that “such certificate duly filed shall be presumptive evidence of its incorporation.” These two sections seem to contain express provisions as to how a corporation shall be formed, and as to what shall be evidence that it has been formed. The fifteen or more persons become a corporation upon filing the certificate. Such certificate cannot be filed until the amount of stock required has been paid in (section 2), and ndt until a tax has been paid to the state for the privilege of so doing. Section 5 of general corporation law. Following those sections, providing for the organization of the corporation, section 59-(chapter 676) provides that “no railroad corporation hereafter formed under the laws of this state shall exercise the powers conferred by law upon such corporation, or begin the construction of its road, until the directors shall cause a copy of its articles of association to be published,” as in such section specified; nor until the board of railroad commissioners shall certify that it has been so published, and also “that public convenience and a necessity require the construction of the road as proposed in its articles of' association.” Now, what is the fair purpose and intent of these provisions ? It is equivalent to saying to the incorporators: “Although you have paid the tax, and filed your certificate, which is the evidence of your incorporation, yet you are not a corporation, and have not yet acquired any corporate powers, until, by some process or other, you shall have secured from the board of railroad commissioners a certificate that the road you propose is a public necessity?” Olearly not. The building of railroads where public necessity did not really need them had become too frequent, and the state deemed it wise to restrict it. In order to do so, it did not change the existing method of organizing railroad corporations. It was still left free for any association of individuals to become such a corporation under the general laws. But the state, by the enactment of section 59, restrains the exercise of its corporate powers, unless the corporation, when so-formed, can go a step further, and make proof to the satisfaction of the board of railroad commissioners that public convenience-requires its ro-ad. If proof of such fact had been required as a conditionprecedentto the filing of the certificate, then the purpose-to withhold all corporate powers, except in those cases where the-necessity of the road was made apparent, would be plain; but such a method would seem to.be impracticable where corporations are formed only under general laws, for the reason that, if the general' laws were made applicable only to such associations and for such enterprises as the board of railroad commissioners might deem expedient, it would be a practical surrender of legislative powers to-such board. If the granting of corporate rights depends upon the question whether it be expedient, in the particular instance applied for, then the proofs of expediency must be made to the legislature-itself, and its judgment alone must determine that question. People v. Fire Association of Philadelphia, 92 N. Y. 311; Barto v. Himrod, 8 N. Y. 483. Such may have been the reason why a corporation is allowed to be formed under the general laws, but the exercise of its corporate rights suspended until the fact of its-necessity is proven to tire state. But, whether that is so or not, corporations are still allowed to be formed, and to exist, with corporate powers conferred upon them; and section 59 affects only the exercise of such powers. It is said that one cannot conceive of a corporation that cannot exercise corporate powers, and that, until the right to exercise such powers is granted, the corporation cannot exist. I think one might conceive of a corporation as existing although the exercise of its corporate powers was restrained until the directors should cause its articles of association to be published for three weeks. But concede that the organization of the corporation is not fully completed until it has performed all the conditions required before it can exercise its corporate powers; nevertheless, such fact is of little force in determining the question before us.

The question is, what rights has the organizing company at the time it applies to the board for the necessary certificate? Whether it has or has not a complete corporate organization, it has, at least, so far proceeded towards that condition that certain fixed relations are created between it and the state. By taking the proceedings provided for by section 2 of the railroad law, and by paying the tax to the state, it has entered into a contract with the state that its corporate powers shall be fully enjoyed in the event that it proves, to the satisfaction of the board, the two facts specified in section 59; and it is of no importance whether it appears before such board as a complete corporation or not, so long as its relations with the state secure to it the rights above stated. The duties of such board, and the extent of its powers, seem to be very clearly indicated in such section. It is to take proof upon two questions only: First. Have the articles of association been published as required? Second. Is the proposed road a necessity? Is there anything in those .provisions indicating a purpose to give to the board power to grant or refuse to the applicants a franchise? Evidently not. They are to furnish to the state evidence of a fact, or rather two facts, which it is deemed necessary should exist before the franchise already granted shall be fully enjoyed. Therefore it is that a certificate is to be issued provided those facts are proved to the satisfaction of the board, and theref ore it is that the certificate of the board to that effect is made satisfactory evidence to the state of the existence of ■each of such facts. Can it be claimed, under the provisions of this section, that the board may take the proofs, and be fully satisfied that the required publication has been made, and that public convenience demands the road, and yet refuses to give a certificate, because it understands that the road is to be built with foreign capital, or because it is informed that another company is soon to be engaged to build the same road, and it prefers to wait and give the certificate to it? If the applicant for the certificate has as yet acquired no organization and no rights, if it is before the board asking from it the right to exist or to act, there does not seem to be any reason why the board might not refuse, for those reasons or any other that it might fancy. But I hardly think that any one, upon reading the section, would conclude from its language that such a power was conferred upon it.

I conclude, therefore, that any association of individuals that pays the tax, and organizes a railroad corporation as provided by the second section of the railroad laws, does so with the understanding that,, before it can exercise the corporate powers so acquired, it must prove to the satifaction of the board of railroad commissioners, or to the supreme court, that public convenience requires the construction of its road. Such may be said to be the terms of its charter, so acquired from the state. But I also conclude that it does so with the assurance that, if it is able to make such proof, it has the right to require such board to hear it, and to issue a certificate that it has been made. I do- not intend to intimate that the certificate could be claimed unless the proof is entirely- satisfactory to the board, or to the supreme court, upon application made to it under that section. I concede that the burden of proving that fact is all upon the applicant, and that a very large discretion is given to the board in determining whether the road proposed is or is not a public necessity; but, being satisfied of that fact, it is as much the duty of the board to issue the certificate as it is to take the proof. In short, I conclude that section 59 does not devolve upon the board of railroad commissioners the power to determine whether the general statute forth’e formation of railroad corporations shall or shall not apply to the applicant. It does not invest the board with the power to grant or refuse a franchise. It but imposes upon it the duty to take proof upon two specified facts, and, if satisfied of their existence, to issue to the applicant a certificate to that effect.

The matter of the organization of the corporation, and of its-right to exist, is a matter entirely between the applicant and the state; and the relation -of the board, and its action on the matter, are but a means provided by the state for the benefit of the applicant. The state, having required the applicant to make such proof, has in this way provided a method for its so doing, and manifest justice requires that it should be given the full benefit of the proof when it is made. vHow, in the event that two associations of individuals organize under such sections of the statute two corporations, and each proposes in its articles of association to construct identically the same railroad as the other, and suppose the second is organized before the first has made application for the certificate required by section 59, what should be the rule that fixes and controls the relations between themselves and the state? In view of the relation which, by its incorporation, is at once created between the organizing company and the state, as above state, should it not be that the corporation subsequently organized should be deemed to take its franchise subject to the right of the other to make the proofs, and have the certificate? Does not the state owe that much protection to the corporation first organized? Such corporation has, as it were, applied to the state for a charter to build the railroad. The state has taken the tax for the same, and given it the charter, but requires it, before proceeding thereunder, to prove to the satisfaction of the railroad commissioners that the road it proposes to build is a necessity. Subsequently, the second company applies for a charter to build the same road. May the state give it a charter also, and allow its board of railroad commissioners to refuse a certificate to the first because it prefers to have,the road built by the second? Certainly, under the old system of creating corporations by special charter, it would have been a breach of public faith to grant the right to build a road to one company, and then annul the charter, and give the same franchise to another; and yet such action would not be different in principle and effect from the joint action of the state and board above supposed. But discussion seems to be unnecessary on this question, for it will hardly be disputed that if, upon organizing under the provisions of section 2, a corporation acquires a right to be heard before the board of railroad commissioners, and to a certificate, if it proves to the satisfaction the two-facts required by section 59 to exist, such right would be prior and superior to that of a corporation subsequently formed for precisely the same purpose.

It is argued that when two roads are proposed to be built between the same termini, by different corporations, the board of railroad commissioners may examine the maps and profiles filed by each, and determine which is the better route and road, and base their action upon that ground, if they conclude that but one road is necessary. But whence does the board acquire the authority to examine into those questions. The one question presented to it by section 59 is as to the necessity of the road proposed in the articles-of association. Section 2 of the railroad act specifies what the articles shall contain on that subject, and not a word can be found in the statute indicating that the organization of the corporation, or even its right to exercise its corporate powers, is made to depend upon its line or the grades which shall appear upon its map or profile filed before application is made for the certificate. But, on the contrary, the statute expressly provides that both its line and its-grades, and even its termini, may be changed by the corporation, after it has begun the construction of the road. See Railroad Law (Laws 1892, 676.), §§ 6, 13. True, by section 59, the board, in the event that it has refused a certificate, is required to certify to the supreme court, on the request of the applicant, “any maps and paper” on file before it; but such provision is of no force in determining the question now before us. Maps might be very convenient, may be used to explain the road proposed, and yet, so long as the map may be materially changed at any time after work is begun, it evidently cannot be deemed a controlling description or specification of such road. The method of crossing other railroads is provided for by other sections of the railroad laws (see section 12, Railroad Law); and hence it seems clear that the line of the road as delineated on the map or profile is not the road about which the board is to certify. Much less are they authorized to make any particular line, or grade, or mode of crossing another ro&d„ a condition of granting the certificate. I do not dispute but that, when it is not possible to build the proposed railroad without crossing at grade many highways and other railroads, the board might take that fact into consideration in determining whether public convenience and necessity required its construction. That fact might be an element in determining the real question submitted to the board by section 59, and the board might conclude that the dangers to be apprehended from such a road would exceed the public advantages to be derived from the same. See In re New Hamburgh & P. C. R. Co., 76 Hun, 76; 59 St. Rep. 150. But when it appears that the road can be built so as to avoid such grade crossings, and when the directors of the corporation state to the board their readiness to so build it, as appears was done in this case, the mere fact that the profile is drawn at grade is by no means a material fact in considering the question of its public necessity.

In the case before us, the articles of association of each company state substantially as follows: That the kind of road to be built and operated shall be a railroad of. standard gauge, to be operated by locomotive steam power, and that it is to be built, maintained, and operated from a point at or near the village of Blasdell, to a point at or near the village of Depew, in the state of New York. Such a statement is all that section 2 requires to be contained in the articles'of association; and whether such a road is or is not required by “public convenience and necessity” was the real question presented for the decision of the board. Nor do I understand that the board have taken into consideration the question of crossings in determining the necessity of the road, which is proposed in the articles of association of each company. The board treat the roads proposed as precisely the same, and say in their decision “that the granting of one application must necessarily mean the denial of the other.” They do not, therefore, decide that the road of the Terminal Company is a necessary road, and that that of the relator is not. They refer to the fact that the profile of the relator’s road shows more crossings at grade as a reason why they select the other -company, but they do not determine that the road as proposed by the relator in its articles of association is not “required by public convenience and necessity.” It appears from the record, too plainly for contradiction, that the board did decide that the read as proposed by the relator was so required, and the certificate issued to the Terminal Company is based upon that very decision. Although there were two applications to the board, there is but one decision. Both applications are heard, and the “equities” (so ■called by the board) of both companies are considered together, and the decision is that, inasmuch as only one of the proposed roads is necessary, the certificate of necessity must be denied to the relator, because it is issued to the Terminal Company. Thus, the question whether the prior organization does not give the prior right is squarely presented by this determination, and it cannot be evaded upon the theory that the board has decided that the relator’s proposed road was” not a necessity.

It is said that the question presented in this proceeding was necessarily involved in the decision made by the general term in the fifth department (In re Depew & S. W. R. Co., 36 N. Y. Supp. 991); and that hence this writ cannot be sustained. I think that the scope of that proceeding could not include the question here presented. That was an application, under section 59, to that court for a certificate that its proposed road was a public necessity, made by this relator on the ground that such certificate had been denied by the board of railroad commissioners. The Terminal road was not before that court in those proceedings, and evidently any decision that that court could then make could have no force or effect against it. The question whether such Terminal Company’s right to a certificate was not subordinate to the rights which this relator acquired by its prior organization manifestly could not be adjudicated there; and, even if the court had held that it would give a certificate to the relator upon the theory that the one to the Terminal Company was improperly granted, yet such determination falls far short of the relief asked for here. By such a decision the Terminal Company would have been in no way restrained from proceeding with its road. In this proceeding the relief sought is the reversal of the whole proceedings before the board of railroad commissioners, which, in effect, would be to deprive the Terminal Company of its certificate, and to lay down a rule for the guidance „of the board upon another application made. The most that the court could have done on that application was to give this relator a certificate, which would in effect allow both roads to b.e built. • In this application the question of a prior right is to be settled, and, if I am correct, result' :-- giving to the relator the one road alone which public necessity requires. And it is evident that that court did not consider that the question here could be decided there. In its opinion, which is in the return before us, it is said:

“The propriety of granting the certificate to the Terminal Company cannot be the subject of consideration in this matter. The ■claim urged in behalf of the moving company that it was not within the power of the board to deny to it the certificate, and to grant one to the other company, presents a question which can only be considered and determined elsewhere than on this statutory review.”

Thus, the court assumed the legality of the proceeding upon which the certificate was issued to the Terminal Company, and denied one to this relator, only on the ground that two such roads were not necessary. So far as there are any expressions in that opinion not in harmony with the conclusions in this, they seem to be “obiter” to the question before the court, and therefore not controlling. ' "

Upon the record in this ease, we are to inquire whether, in making its determination, the board violated any rule of law affecting the rights of the parties before it, to the prejudice of the relator. Code, $ 2140, subd. 3. The error complained of is not that the-board refused to determine that the road proposed by the relator wás a public necessity, but that, having decided that it was, it issued the certificate to another company, and therefore refused it t,o the relator. If the refusal to issue the certificate had been solely on the ground that its road was not a necessity, I concede that the relator’s remedy, and its only remedy, would have been to apply to the supreme court, under the provisions of section 59(Laws 1892, c. 676); but, for the error of which it now complains, no relief could have been obtained in such proceeding, and therefore it is no bar to this one. The whole question seems to me to turn upon a single proposition: If, upon its organization, under section 2 of the'railroad law, the relator acquired a right to make the proof before th© board “that public convenience and a necessity required the construction of the road as proposed in its articles of association,” and to demand a certificate to that effect in the event that it did satify the board of that fact, an error has been committed by the hoard in the determination which it has made. Such determination ignores entirely such a right on the part of the relator. It proceeds upon the theory that an applicant appears before that board without any rights whatever; that, although it might prove to the entire satisfaction of the board all that section 59 requires it to "prove, yet the certificate may be denied on some ground not ’specified in any statute, and of which the applicant could have no anticipation. Such a theory of the powers and duties of the board, under the provisions of section 59, is, in my judgment, altogether too broad. Upon the application of the relator to the board, it should have determined whether the road proposed in its articles of association was or was not a public necessity, without reference to the application of the Terminal Company; and, if only one road such as it proposed in such articles was necessary, the preference should have.been given to it, rather than to the Terminal Company. The relator had acquired that right of priority over the other company, and the board erred in disregarding it.

For these reasons, I think the determination of the board awarding the certificate to the Terminal Company, and refusing it to the relator, should be annulled, with costs.


author: RUMSEY, J.

text:
    New York Lumber and Woodworking Company, Resp't, v. Seventy-Third Street Building Company, Impleaded, etc., App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed May 1, 1896.)
    Mechanic’s lien—Transfer pf property.
    When the right to a lien has come to exist, a conveyance of the property by the owner will not defeat the lien, where it is made to appear that the conveyance was not bona fide, and was made with intent to defraud the person who was entitled to the lien; and the validity of the conveyance may always be tested in the action to test the lien.
    Appeal from a judgment in favor of plaintiff.
    A. G. N. Vermilya, for app’lt; Herbert H. Gibbs, for resp’t.
   RUMSEY, J.

The action was brought to foreclose a mechanic’s lien filed by the plaintiff on the 15th day of June, 1888, for building materials sold and delivered to William J. Merritt Co., which were furnished to and used by Merrit & Co. in the erection of forty-one houses on Seventy-third street, near West End avenue. The plaintiff alleged that sixteen of these houses had been sold to the defendant, the Seventy-third Street Building Company, but that the transfer to them was in fraud of the creditors; and judgment was asked, among other things, that the conveyance from Merritt to the Seventy-third Street Building Company be declared to be in fraud of creditors, and that the plaintiff have a lien upon the houses conveyed to that company, for the materials which were used and delivered there, and that those premises be foreclosed and sold to pay the amount of the lien. The referee directed a personal judgment against Merritt Co. for the value of the property sold to them, and from that por ti on of his decision, and the judgment entered on it, no appeal has been taken. He also found that materials of the value of $1,244.51, out of those delivered to Merritt & Co. were delivered for and used in the sixteen houses which had been conveyed tc the Seventy-third Street Building Company, and that the transfer by Merritt to that company of the property upon which those buildings stood was made with intent to defraud the plaintiff of his right to file a lien upon the said premises, and to make the lien ineffectual; and he directed judgment establishing a lien for the amount of $1,244.51, with interest, upon those premises, and directing that the premises be sold to pay it, and from that portion of the judgment this appeal is taken.

The sixteen houses which were conveyed to the Seventy-third Street Building Company, and which were held by the referee to be subject to the lien for materials which had been filed by the plaintiff, were situated on the northeast comer of West End avenue and Seventy-third street. Upon that comer there were eighteen houses which were in process of construction by Merritt & Co. Sixteen of these were conveyed to the defendant corporation. The referee finds that materials were furnished and used by the plaintiff for building those houses to the value of $1,244.51.

The first question is whether or not that finding is warranted by the evidence. The material making up this sum of $1,244.51 consists of sashes and blinds valued at $688.80, and ash ceiling and wainscoting valued at $310.79, and flooring valued at $244.92. It appears from the testimony, as has already been stated, that Merritt & Co. were constructing eighteen houses at one time; that these houses were all in one block, and were being constructed substantially in the same way, and were about in the same stage of completion. The sashes and blinds for these houses were special sizes, ordered particularly for them, and which could be used nowhere else. They were delivered at the houses, and, after they had been delivered and used, Holmes, a measurer, in. the employ of the plaintiff, was called upon to go to the houses and examine them, because of a complaint that had been made by Merritt that the sashes and blinds were- not of" the proper size. He says that he went through the houses; that the blinds were all hung, although all the houses had not reached the same stage of completion,; that he measured the blinds, and he knows from the measurements that they were the blinds which had been furnished by the plaintiff, because they were the same special sizes as had been ordered by Merritt for the houses in which they were put. Eickhoff, who was a carpenter, and superintended the woodwork for Merritt & Co. in these housés, among others, at the time these blinds were delivered, testified that the blinds were all-used for those housps. The estimates for these blinds were made by one Bugg, who was in the employ of the plaintiff. He testified that the value of the sashes and blinds estimated by him for each of the eighteen houses was $43.05. There was no dispute with regard to' this evidence, nor was there any denial that the blinds were used in the houses as had been testified to by plaintiff’s witnesses. All the evidence in that regard on the part of the defendant was given by Merritt, who says that he knew that sashes and blinds were brought from the plaintiff for use in these buildings, and that some of them may have been used in the buildings, but he did not know whether they were or not. There was no doubt that Merritt & Co. had at hand, or knew where to obtain, testimony of witnesses who could have shown that the blinds were not used in these buildings as alleged by the plaintiff, if that had been the fact; and, as no such evidence was given, it is fair to infer, as the referee did infer, that sufficient proof had been given on the part of the plaintiff to warrant him in finding that in each of the sixteen buildings conveyed to the defendant corporation the blinds prepared for that building had been used. The value of the blinds so used was $688.80, which is the amount allowed by the referee for that item.

The next item was $310.79 for ceiling and wainscoting which was delivered from January 27 to April 16, 1888. The proof of the delivery of this material depends upon the testimony of Eickhoff, who was sworn as a witness on behalf of the plaintiff. He receipted for it, and he says that the receipts were signed at the time they bear date; that all’ of the stuff went to the northeast corner of Seventy-third street and "West End avenue, and he does not think that any of it went to the south side. He thinks it was all used in the same place, in these eighteen houses. This testimony was entirely nncontradicted. The amount of this ceiling and wainscoting was $310.79. The referee charged the whole of this amount upon the sixteen houses which had been conveyed to the defendant corporation. In this we are inclined to think that the referee was in error. It appeared that work upon all these houses was proceeding at the same time, and that they were substantially in the same stage of completion; and as the material was used in all the houses alike, according to the testimony of Eickhoff, we think the referee should have charged each house with its proportionate part of the ceiling and wainscoting, and that he should not have charged these sixteen houses with the whole of it. The amount properly chargeable to each house was $17.27, and the amount chargeable to the sixteen houses which were conveyed to the defendant corporation was $276.32, which is the amount to be allowed to the plaintiff, as against those houses, for that item. The proof of the flooring stands entirely upon the testimony of one Griffin, who says that he delivered the flooring to Merritt & Go.; but he is unable to tell just where he delivered it, nor is there any evidence whatever that it was used in these particular houses. For that reason the flooring was not properly chargeable to these houses, and the value of the flooring, which was $244.92, should also be deducted from the amount which has been charged against the defendant’s houses. The amount so to be deducted is $279.39, as of the 23d day of May, 1888, and the judgment is to be modified so that the amount of the lien which thie plaintiff is held to have upon the sixteen houses conveyed to the defendant corporation shall be fixed as $965.12, with interest thereon from the 23d of May, 1888, instead of $1,244.51. The lien was file on the 15th day of June, 1888, and there is no question that some of these materials were furnished within ninety days of that time.

We have examined the testimony tending to show that the transfer of the property by Merritt to the defendant corporation was made in fraud of creditors, and we are satisfied that the conclusion of the referee upon that subject was correct. When the right to a lien has come to exist, a conveyance of property by the owner will not defeat the lien, where it has been made to appear that the conveyance was not bona fide, and was made with intent to defraud the person who was entitled to a lien; and the validity of the conveyance may always be tested in the action to test the lien. Gross v. Daly, 5 Daly, 540. Within this case, the judgment establishing the lien, as against the property sold to the defendant corporation, was right.

We have examined the other points raised by the defendant’s counsel, and are satisfied that none of them were well taken. The result of our examination is that the judgment must be modified by fixing the amount of the lien to which the plaintiff is entitled, against the sixteen houses conveyed by Merritt to the defendant, at $965.12, as of the 23d of,May, 1888, and as modified must he affirmed, without costs.

All concur.


author: BARRETT, J.

text:
    Walter A. S. Chrimes, App'lt, v. William C. Squier, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 24, 1896.)
    Equity—Forged mortgage— Can cell ation.
    Where, in an action to set aside a mortgage on the ground of forgery of the signature of the mortgagor, it is shown that the mortgage was assigned to the notary who took the acknowledgment and by him to the defendant, evidence showing that the notary was directly interested and connected with mortgagor in same transactions, out of which the mortgage in question was given, is material and such relation between the notary and mortgagor is properly inquired into on the cross examination of the latter as a witness.
    Appeal from a judgment dismissing the complaint.
    Edwin B. Root, for app’lt; A. E. Woodruff, for resp’t.
   BARRETT, J.

The decision rendered in this case at special term was correct, and we entirely concur in the opinion there handed down by Mr. Justice PATTERSON. The testimony of the mortgagor, Austin, upon which the plaintiff relied, was unworthy of credence. It was shaken, not only in collateral matters, but in much that was material to the direct issue of forgery. The mortgagee (one Ker) was the same person who bad previously deeded the property to Austin. The mortgage was assigned by Ker to one Savage, and by Savage to the defendant. Savage was the notary public whose certificate of Austin’s acknowledgment is appended to the mortgage. The1 relations between Austin and Savage were, under the circumstances, most material. We cannot agree with the appellant that the cross-examination upon this h,ead was upon collateral or immaterial matters. It was direct and important. Austin plainly saw its materiality, and tried in every possible way to conceal his relations with Savage. He equivocated, suppressed what he knew, and, when closely questioned, falsified outright. To sustain the plaintiff’s charge, Austin’» testimony should at least have been clear and convincing. It was the. reverse; and, further, it was entirely unsupported. Hot another witness was called to sustain the charge. Austin’s wife was not examined, nor was a single person who had 'ever seen him write. Upon the other hand, we find that in 1892 he made an agreement with the defendant for the settlement of an action which he had previously brought,—similar to the present,.—and that that action was thereupon discontinued. This agreement ■impliedly recognized the mortgage, and makes provision for the application to its payment of whatever might be realized upon a sale of the property over and above $4,500. It is difficult to understand how a man who honestly believed that this mortgage was a forgery could have made such an agreement. His subsequent conduct indicates bad faith, even with respect to this agreement. Doubtless believing that he was. estopped thereby from renewing his charge of forgery, he sought to evade the effect of the agreement by quitclaiming the property for a nominal consideration to the present plaintiff, and bringing this action in the latter’s name. It is entirely clear that this was his design, and that he is still the real owner of the property, using the plaintiff to effect his inequitable purpose..

The case is wholly without merit, and the judgment appealed from should be affirmed, with costs.

All concur.

The opinion of Mr. Justice PATTERSON at special term is as follows:

“ I would not be justified, on the uncorroborated testimony of the witness Austin, in declaring, so far as his signature is con•cerned, the mortgage purporting to have been executed and delivered by him and his wife to Ker, and assigned to the defendant, a forgery. That Mrs. Austin did not-sign the mortgage is clear. Her name is only incorrectly stated, but what purports to be her signature is in the same handwriting as that which purports to be her husband’s; but the general style and character of the alleged forged signature of William Austin to the mortgage are the same as those of the genuine signature in evidence, allowance being made for the ordinary differences that always exists between admittedly genuine signatures. There can be no doubt of the force of Austin's testimony on his direct examination. He swears positively the signature to the mortgage is not his; that he never acknowledged it before a notary; that he was not in New York on the day named in the acknowledgment as the one on which the mortgagor appeared before the notary, and that he had but a slight acquaintance with the notary. But his cross-examination plainly shows a very uncertain and unreliable memory or some-tiling worse. The design of that cross-examination was to call out facts establishing close business relations between the notary and Austin, the latter having sworn he had no direct business with the notary, and scarcely knew him. Now, it plainly appears-that this notary, Savage, had much to do with a certain tract of land'at Claremont, of which the mortgaged premises formed a part. On a map of that tract or plot these mortgaged premises are designated ‘15 A,’ next adjoining a lot designated ‘No. 16.’ Austin swears with absolute positiveness he never had any dealings with Savage as to either of the pieces. When asked about papers-referring to both -pieces, he swore, ‘ I never had any business with Mr. Savage in regard to it.' The further question was then asked whether Savage did not have an interest in the property when Austin took it, to which the( witness replied in the negative, whereupon the following incident took place, as appears by the-record, viz.: ‘Plaintiff’s Counsel : Are you referring to the property described in the complaint (lot 15 A)? The Court: I understand the question not to apply to plot 15 A, but to any portion, of the whole 176 ft. Question. Do you know of Mr. Savage having any interest in any portion of the plot 176 ft. on Marcher-avenue or Anderson avenue? Answer. I never did.’ After the recess of the court this witness was again put on the stand, and he-then swore that he did receive a deed from Savage of lot No. 16, bringing him directly into relations with Savage respecting the-very lands of which 15 A and 16 formed parts, and both of which parts are covered by the mortgage in suit; but the witness added he was confused by previous questions, and- had supposed they related to lot 15 A alone, and added, ‘ I did not understand that, the two lots had anything to do with one another.’ This is plain prevarication. Turning hack to the early part of his cross-examination, he distinctly swears that there was a tract of 176 feet om Marcher or Third avenue, consisting of lots 15 A and 16, and that they were conveyed all in one deed.’ On his second cross-examination, after his alleged correction of testimony before-attended to, his attention was called again to the 176-foot lot, and he was asked: ‘Question. Lot 16 is part of the plot 176? Answer. Nothing -to do with it whatever. Q. Lot 16 adjoining lot 15 A? A. That I don’t know. I don’t know that. Q. Don’t you know that lot 16 is part of the 176 feet front? A. No, sir; I do not know. I never saw a plan of the lots. I did not know it was within a mile of it.’ All the testimony with relation to these two pieces was quite material as showing that Savage was directly interested and connected with Austin in some transactions regarding the land, out of which transactions this mortgage was or may have been given, for it affects and covers a part (lot 16) which was conveyed directly by Savage’s -deed to Austin. That the witness was seeking to evade the effect of these considerations seems to be obvious, and that the whole truth was not disclosed and that there was suppression and concealment of something material, was apparent from the hesitancy and evasiveness of the witness. At all events, bis cross-examination shows that his-memory is altogether unreliable. On the discredited testimony of this witness it is not for the defendant to show the circumstances-under which the mortgage was given, nor why it appears to have been executed by Mrs. Austin. The instrument is not successfully impeached as to the mortgagor Austin’s signature, and there is no doubt that the defendant is the assignee of it in good faith. Complaint dismissed with costs.’’


text:
    William Francis Clemons, Resp't, v. Callman Rouse, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 24, 1896.)
    New trial—Denial.
    A motion for a new trial is properly denied, where there is evidence sufficient to sustain the verdict and the exceptions are without merit.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.
    Prior to July 24, 1893, the plaintiff was the owner and had' possession of the chattels. Between that day and August 29, 1893, plaintiff sold and delivered the chattels to the firm of Shapero & Kautrowitz, upon credit. August 31, 1893, that firm sold and delivered the chattels to defendant. September 1, 1893, plaintiff demanded possession of the chattels from the firm and from the defendant. Possession was refused. Thereupon, on the same day, this action was commenced. The sheriff took the-chattels under the requisition, excepting a small amount which he-could not find. The defendant requested a return of the property to him, and gave the proper security, and the property was surrendered to him. The plaintiff claimed the. property was worth $600.27. Both parties claimed to be the owners and entitled to the possession of the property. On the trial the plaintiff gave evidence tending to show that the firm was guilty of fraud in the purchase of the property from him, and secured possession of the property by means of such fraud. The defendant gave evidence upon the subject of his having been a bona fide purchaser of the chattels from the firm. The case was submitted to the jury, and a verdict was rendered in favor of plaintiff, awarding the chattels to him ; fixing the value of the property at $600 27, and damages for defendant at six cents. The usual motion for a new trial was made and denied. There was a motion at the close of the plaintiff’s evidence to dismiss the complaint for want of sufficient evidence to warrant a verdict for plaintiff, which motion was denied, but no exception was taken to such ruling. There was no motion made at the close of all the evidence, and no objection madejo the submission of the case to the jury, and there were no exceptions to the admission or relection of evidence worthy of notice.
    Max Cohen, for app’lt; Arthur Furber, for resp’t.
   WILLIAMS, J.

Upon the record as presented, there are few questions for us to examine. The charge is not before us, and we do not.know upon what particular theory the case was submitted to the jury. There was evidence upon which the jury might find the purchase of the property by the firm from the plaintiff was fraudulent, and that the plaintiff might therefore rescind the sale, and follow the property, and recover it from the defendant, unless he was a bona fide purchaser thereof11 from the firm. Barnard v. Campbell, 58 N. Y. 73. There was evidence upon which the jury might find that the defendant was not such bona fide purchaser. We may assume that these questions of fact were properly submitted to the jury. The defendant raised no objection to such submission, and took no exception to the charge of the court with reference thereto. The two exceptions taken to the exclusion of the evidence offered by the defendant and objected to by plaintiff are without merit. They do not raise the question suggested by counsel in his points,—that Ije was precluded from giving evidence tending to show that the property in suit was not the same property the plaintiff had sold and delivered to the firm. The motion for a new trial was properly denied. There was evidence sufficient to sustain the verdict, and the exceptions taken were without merit.

The judgment and order should be affirmed, with costs.

All concur.