author: DALY, C. J.

text:
    Giacomino Vitto, Pl’ff, v. Patrick Farley, Def’t.

      (New York Common Pleas, Trial Term,

      Filed December, 1895.)

    1. Master and servant—Hazardous employment.
    Where a workman, employed as a co-laborer, and not in the work of blasting, is directed to draw an unexploded charge of dynamite, without being either instructed or questioned as to the nature of the peril arising from the use of explosives employed or Ms experience in dealing with them, is not negligent, as matter of law, in undertaking a work in which he was not experienced but had experience in gunpowder blasting, and had no suspicion that this was a different kind.
    3. Same.
    Where a workman is employed for one purpose, and the foreman directs him “to perform another and specially dangerous service without sufficient knowledge or instruction, the fault is not that of the master but of a co-servant.
    3. Same,
    In such case, the negligence of the foreman is the act of a fellow servant and not of the master.
    Action by Giacomino Yitto against Patrick Parley to recover damages for the loss of a hand occasioned by the explosion of a charge which he was attempting to extract from a rock. A vervict was rendered in favor of plaintiff, and the defendant moves for a new trial. .
    Louis Silberman (Lewis Johnston and Edward W. S. Johnston, of counsel), for pl’ff; Edwin P. Stern, for def’t.
   DALY, C. J.

—The plaintiff recovered a verdict of $750 for the loss of a hand occasioned by the explosion of a charge of gunpowder and dynamite which he was engaged in extracting from a hole drilled in a rock after the charge had failed to explode. He was a laborer who had been, for two months prior to the accident, employed to break stones and drill holes by the defendant, a contractor engaged in the business of excavating and blasting rock, in which gunpowder and dynamite were used, and had been, fo.r some years before the accident, which took place in January, 1892, at Seventy-Third street, between Second and Third avenues, where defendant was then engaged in extensive excavating work, necessitating frequent blasting of rock. The plaintiff had been accustomed to the work of blasting rock for some years, in Italy, before coming to this country, but not to the use of dynamite ; and he was not aware that any was used in the charge that he attempted to draw. He. testifies that he was directed by defendant’s foreman over the work to draw the charge in question, and claims that this injury occurred through his being set to work at a dangerous occupation without being admonished of the peculiar risk attendant upon it.

The act of the foreman in, directing the defendant, a colaborer employed to break stones and drill holes, to draw a charge from a blast, without ascertaining what his knowledge or experience was, cannot be regarded other than as'negligence. This work required a certain amount of skill, and the foreman was not justified in assuming that every laborer who might obey the order to perform it liad the necessary knowledge or experience. No common laborer could, with due regard for safety, be permitted to undertake it, no matter how willing or eager he might be, unless he were first tolcl what the blast contained, or interrogated as to his knowledge. I do not lose sight of the fact that the foreman, in his account of the affair, testified that he did not give the order to-the plaintiff, but to the particular men engaged in the work, and, moreover, that he forbade the plaintiff to attempt it, although the latter persisted that he knew how to do it; but the jury, having the issues presented to them, decided that the proof on the plaintiff’s part preponderated, and I must assume the fact to be as found, because there is no sufficient reason for disturbing this finding which would not warrant a reversal of a verdict in every case of conflict of testimony. I am, therefore, to deal with the case as one in which a workman, employed as a colaborer, and not in the work of blasting, is directed to draw an unexploded charge without being either instructed or questioned as to the nature of the peril arising from the use of the explosives employed, or his experience in dealing with them. It is urged that he was negligent in undertaking a work in which he was not experienced. It would be so if he were wholly unacquainted with blasting; but it appears that he was experienced in gunpowder blasting, and had no suspicion that this was of a different kind. He proceeded with the care customary in the use of gunpowder, and inadequate, as the result proved, in dynamite blasting, and was thereby injured. The question of contributory negligence was left to the jury, and they found, under the circumstances, that he was not negligent.

The negligence of the foreman and the absence of contributory negligence being established, the question is whether the defendant, who employed both foreman and plaintiff, is responsible for the act of the former. The foremán and plaintiff were fellow-servants, although one was subject to the other; and negligence in the foreman’s performance of duty as a servant was a risk, assumed by plaintiff, as an incident of the business, like the possible negligence of any follow laborer. Certain duties of the master cannot be lawfully delegated to the foreman or other employe, and, if they are, then, as to these, the foreman is not the fellow servant of the plaintiff, but stands in the shoes of the master. Among those duties is that of warning inexperienced employes, set to work in a place of danger, of the perils of the employment in which they áre engaged. 14 Am. & Eng. Enc. Law, 897, and cases; Wood, Mast. & S. 349. Where a company, through its superintendent, furnished an unusual, unfit, and unsafe blasting powder to its servant, who was ignorant of its dangerous properties, it was held negligence not to inform him of its danger. Spelman v. Iron Co., 56 Barb. 151 ; Smith v. Iron Co., 42 N. J. Law, 467. Where a foreman directed the plaintiff to warm a quantity of dynamite preparatory to its use, the master was held liable for setting the plaintiff to work in a dangerous place, at perilous service, without warning or admonition of any kind, instead of providing him with a safe place and safe implements, a duty which could not be delegated. Lofrano v. N. Y. & Mt. V. Water Co., 55 Hun, 452 ; 29 St. Rep. 557 ; id., 130 N. Y. 658. But it has been held that, where a workman is employed for one purpose, and the foreman directs him “to perform another and specially'dangerous service without sufficient knowledge or instruction the fault is not that of the master, but of a coservant,” Crown v. Orr, 140 N. Y. 450; 55 St. Rep. 834; and that was the case here. The plaintiff was employed as a common laborer to drill hole, the only connection he had with the work or blasting. He says he was told by the foreman to draw an unexploded charge, without warning as to the kind of explosives used, or instruction in the way of handling them. Under the authority cited, the negligence of the foreman was the act of a fellow servant, and not of the master. There was no evidence that the foreman was in any degree incompetent, or that the selection- of the servant to do the work was not a part of his ordinary duties as foreman. In a case where workmen who were engaged in drilling rock for blasting in a cement quarry were set to work by the foreman to drill holes near a blast which had failed to explode, and one of them was killed by its sudden ignition while he was at work, it was held that the master was not liable for the act of the foreman in imprudently setting the deceased to work in a place of danger; that this was the ordinary ease of choosing a method, time and place for continuing the work, involving questions of judgment and discretion properly committed to the foreman, and whose mismanagement was simply the act of a fellow servant. Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359. As was said in that case, for the manner in which the persons employed in the defendant’s work of blasting should perform their work, the master was not liable. The details of the work rested, necessarily, upon the intelligence, care, and fidelity of the servants to whom these details were intrusted. “It cannot be that, every time a blast was exploded, and the men came back, the manner of their distribution for work was a duty of the master, and the order of a foreman, mistakenly or negligently given, must be regarded as the order the master in filling a duty to furnish a safe place to work in.” - The negligent act was a part performance of the work itself, the risk of which the servant had assumed. The master was not chargeable with the consequences of a place for work made dangerous only by the neglect of a fellow servant who happened to be the foreman.

Motion for a new trial granted, with costs to defendant to abide event.


source: Caselaw Access Project

author: PRYOR, J. —

license: Public Domain

text:
    Herman Fromme et al., Resp’t, v. William E. Gray, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed December 16, 1895.)

    Contempt—Interposing ealse answer.
    The knowingly interposing of a false answer is not a contempt of court, for which a party may be punished in a civil proceeding.
    Appeal from an order of the city court, affirming an order adjudging defendant guilty of coutempt of court, fining him and condemning him to close custody until he shall pay the said sum with interest and costs.
    Wm. B. Hornblower and Frederick M. Littlefield, for app’lt ; Fromme Bros. and James Fromme, for resp’ts.
   PRYOR, J. —

Failing to secure satisfaction of a judgment by the ordinary processes, plaintiffs seek to enforce it by proceeding as for a contempt committed by the defendant in interposing a false answer in the action; and the question for determination is whether, for perjury in verifying a pleading, a party be guilty of contempt of court. The proceeding is obviously as a civil remedy People v. Court of Oyer & Terminer, 101 N. Y. 245, 247; and it purports to go upon subdivision 2, § 14, of the Code, which denounces as a contempt “any deceit or abuse of a mandate or proceeding of the court.” That a pleading is not a “mandate of the court” is too plain a proposition to require' argument in its support. And, if a proceeding in court, it is certainly not a “ proceeding in court.” A pleading is purely the act of the party, in which he proffers to his adversary a statement of his claim or defense, and to which no order or sanction of court is requisite. Though infected with perjury, therefore, it involves no abuse of the mandate or proceeding of the court. The statute stigmatizes “any deceit” as a contempt. Deceit in what ? Manifestly, deceit upon the court in procuring its mandate or process. But how can there be deceit upon the court in respect of a matter in which the court has no agency ? How can there be deceit in procuring from the court that which does not issue from the court,—that,— which the court can neither allow nor withhold ? The fundamental and essential principle of a contempt is an affront to the authority of the court, In re Chiles, 22 Wall. 157, 168; but a false pleading nowise challenges or disparages that authority, no more than perjury testimony on the trial. The provision of the Code under consideration specifies the “"putting in fictitious bail or a fictitious surety” as a contempt,but omits to characterize a false pleading as such offense. By what authority may the court, by construction, supplement defective legislation of a penal nature ? “A penal statute cannot be extended by implication or construction to cases within the mischief if they are not at the time within the terms of the act, fairly and reasonably interpreted.” Cheese Co. v. Murtaugh, 59 N. Y. 314. And this stringency of construction is all the more applicable to an offense to conviction of which neither an indictment nor the verdict of a jury nor common-law evidence is necessary,—in a trial for which the accused is not confronted with the witnesses against him, nor allowed the inestimable privilege of cross-examination, nor protected by any of the legal safeguards of criminal justice, and upon sentence for which he may be confined in close custody for an indefinite period. Code, § 2285; Watson v. Nelson, 69 N.Y. 536,544. For what, too, is it proposed to extend the scope and operation of this statute ? Rot to vindicate the dignity of the court, nor to chastise an offense against the public; but to enable a private suitor, by a criminal proceeding, to collect a debt for enforcement of which the law already supplies him with civil processes of adequate efficacy.

Imprisonment for debt is the relic of a barbarous age, and is repugnant to the liberal and enlightened spirit prevalent at this day and in this country. Recent enactments restricting the right of arrest and detention in civil actions attest the policy of this state in prohibiting deprivation of liberty as an expedient for the enforcement of civil remedies; and “ it would be improper for the court to evade the object and intent of the statute by resorting to an attachment for comtempt * * * ih a case where the legislature has prohibited imprisonment by execution.” Walworth, Ch., in Hosack v. Rogers, 11 Paige, 603, 605. In the interpretation of a statute, the consequences of a particular construction are a matter for consideration. Bishop, Writ. Laws, §§ 82, 93. If the contention of the respondents is to prevail, oppression and injustice to the citizen are obvious and inevitable. Whenever, by the verdict of a jury, the untruth of an answer is ascertained, it will be open to a plaintiff, unable to enforce his judgment by the ordinary processes provided by law, to have recourse to the sharp and severe redress of commitment for contempt; and we may be sure that those processes will be superseded by this more peremptory and efficacious procedure. Thus, notwithstanding the nominal abolition of imprisonment for debt, our. jails will be replenished with debtors under commitment for contempt. Abundant authority requires a strict -construction of the statute of con-tempts. “There exists no undefined power authorizing the commitment of citizens for contempt in cases defined and limited by statute.” Sherwin v. People, 100 N. Y. 351, 358. “The power which courts possess of punishment for contempts is, in its nature, an exception to the provisions of the constitution. It is a power to deprive a man of his liberty, without a jury and without a regular trial. It cannot therefore be extended, in the least degree, beyond the limits which have been imposed by statute. Ro implication, and no fancied necessity, can be permitted to add to the literal meaning of the words by which the legislature has restricted this power.” Learned, P. J., in Rutherford v. Holmes, 5 Hun, 317,319; affirmed, 66 N. Y. 368. - “It is only in cases which have been prescribed by the legislature as proper subjects for such punishment that it can be imposed upon an offender. While the misconduct of the relator well deserved adequate punishment, as long as it is not within the provisions of law declaratory of cases of willful contempt it could not be made the subject of punishment.” Daniels, J., in People v. Court of Oyer and Terminer, 36 Hun, 277, 283. “ The absence of such a power from these sections [in the present case, to punish for a false answer] is a very cogent indication that it was not designed to be possessed by the court.” Jacquin v. Jacquin, 36 Hun, 378, 380. Process of contempt is a severe remedy, and should not be resorted to where there is fair ground of doubt. Paving Co. v. Molitor, 113 U. S. 609, 618.

It is contended, however, that the point in dispute is already adjudged, and that we are precluded by stare decisis from a reversal or the order. If, indeed, we be concluded by authority, there is at once an end of the controversy. In support of their position, the respondents adduce Martin Cantine Co. v. Warshauer, 7 Misc. Rep. 412; 58 St. Rep. 569,—an explicit adjudication in their favor. But it was a special term decision, and, though by a judge of high repute, is not of controlling authority in this court. The conclusion is supported by no argument, but rests only upon the assumption that “a pleading is a proceeding of the court,”—■ a postulate which, for reasons already given, we are unable to concede. Koehler v. Campbell, 36 N. Y. Supp. 1110, is another determination to the same effect; but this, too, is a ruling at special term, and stands, moreover, upon no other ground than the authority of Martin Cantine Co. v. Warshauer, supra. The only other precedent on which the respondents rely is the case In re Hall, 66 St. Rep. 201; but while this is an adjudication at general term, and so of persuasive influence, it is not of imperative obligation upon a tribunal of co-ordinate jurisdiction; and, as the court bases its conclusion upon neither argument nor authority, we cannot yield our reasoned conviction to a mere ipse dixit. On the other hand, this court, in two deliverances at general term, has deliberately declared that the interposition of a sham answer is not a contempt. Moffatt v. Herman, 17 Abb. N. C. 107; Simon v. Publishing Co., 14 Daly, 279. True, the first decision (Moffatt v. Herman) was without an opinion; and hence respondents argue that it is not adjudication of the point in controversy. But the headnote states otherwise; and the court of appeals, on review of the case, said that the court of first instance did determine a sham answer to be a civil contempt. 116 N. Y. 131, 133; 26 St. Rep. 328. The second case, too (Simon v. Publishing Co.), is challenged as mere obiter. Conceding that in neither of these cases was the point in controversy expressly decided, still, upon reconsideration of the question, we are confirmed in the conclusion twice announced by us.

In compliance with the genius of the American institutions, every intendment and implication, not manifestly inadmissible, must be indulged in favor of the liberty of the citizen; and we are unwilling, upon a strained construction .of a statute, to detain the defendant in jail for an indefinite time, in order that, by such constraint, he may be compelled to discharge a civil liability.

Order .reversed, and defendant discharged, with costs and disbursements.

All concur.


author: CONLAN, J.

text:
    Maggie Curtin, Resp’t, v. Western Union Telegraph Company, App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Damages—Telegraph companies.
    Failure to transmit a message properly does not render a telegraph company liable for'damages not contemplated when the message was sent.
    Appeal from a judgment in favor of plaintiff.
    Rush Taggart, for app’lt; Lyman W. Redington, for resp’t.
   CONLAN, J.

Appeal from a judgment entered on the decision of the court without a jury. Aside from the question of defendant’s negligence, the damages found by the trial judge could not have been within the contemplation of the parties at the time of sending the dispatch, and are therefore not the proximate result of defendant’s breach of its obligation to transmit promptly.

The judgment should be reversed, and anew trial ordered, with costs to abide the event.


author: FITZSIMORS, J.

text:
    Michael Reilly, Resp’t, v. Edward R. Poerschke et al., App’lts.

      (New York City Court, General Term,

      Filed November 23, 1895.)

    Mechanic’s lien—Bond—Leave op court.
    It is not necessary to obtain leave of the court to bring an action against the sureties on a contractor’s bond.
    Appeal from judgment in favor of plaintiff.
    Frome Bros., for app’lt; F. Schaeffler, for resp’t.
   FITZSIMORS, J.

— The complaint contains, we think, all the necessary allegations. Morton v. Tucker, 145 N. Y. 244 ; 64 St. Rep. 685.

It was not necessary to obtain leave of the court to bring an action against the sureties on the bond. It took the place of the liened property, and only the same proceedings were necessary to prosecute the bond as were required to foreclose the lien. Under the complaint, the plaintiff was entitled to a judgment of foreclosure. That being so, lie had the right to a judgment against the sureties on the bond.

The judgment should be affirmed, with costs.

All concur.


author: MCCARTHY, J.

text:
    Lincoln National Bank of City of New York, Resp’t, v. Jacob S. Butler, Impleaded, etc., App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Bills and notes—Indorser—Presumption.
    When one endorses a promissory note payable to another or order, prior to its delivery to the payee, in the absence of proof that he indorsed with intent to become surety for tiie maker to the payee, the legal presumption is that he stands in the position of a subsequent indorser, and the payee can neither maintain an action upon the indorsement, nor can he transfer a right of action thereon to a purchaser with notice, except upon assuming the responsibility of the first indorser.
    Appeal from a judgment in favor of plaintiff.
    John C. Shaw, for app’lt; Stern & Rushmore, for resp’t.
   MCCARTHY, J.

This action was brought against the defend ant Butler, as indorser upon a promissory note made by one Andrew J. Taylor to the order of James Casey, and thereafter indorsed by the defendant Butler for the accommodation of the said Casey, who procured it to be discounted by the plaintiff. On the trial of the action the plaintiff produced the note in suit. No other testimony was offered by the plaintiff, the allegation that the indorsement on the note by Butler was for the. accommodation of Casey being admitted by the answer. The defendant’s counsel moved to dismiss the complaint, or a direction of a verdict in favor of the defendant, upon the following grounds: (1) That no cause of action against the defendant Butler had been shown; (2) that it had not been shown that the indorsement by the defendant Butler was made for the purpose of giving credit to the maker with the payee. The motions were denied, and the defendant Butler excepted. The plaintiff’s counsel moved that a verdict be directed in favor of the plaintiff for the amount of the note, which motion was granted, and the defendant duly excepted.

There had been a mistake as to the facts claimed to have' been conceded by the amended pleadings. They, of course, supersede the original, and control. The amended answer, by the second , paragraph, denies the very essential contained in paragraph 3 of = the amended complaint, and which plaintiff says was admitted. He is mistaken. In the absence of proof that Butler’s indorsement was made for the purpose of enabling the maker to obtain credit with the payee, as alleged by the plaintiff in his amended complaint, he stands only in the position of a subsequent indorser. When one indorses a promissory note payable to another, or order, prior to its delivery to the payee, in the absence of proof that he indorsed with intent to become surety for the maker to the payee, the legal presumption is that he stands in the position of subsequent indorser; and the payee can neither maintain an action upon the indorsement, nor can he transfer a right of action thereon to a purchaser with notice, except upon assuming the responsibility of first indorser. Phelps v. Vischer, 50 N. Y. 69 ; Bacon v. Burnham, 38 id. 614 ; Wyckoff v. Wilson. 30 St. Rep. 384 ; Coulter v. Richmond, 59 N. Y. 481 ; and Bornstein v. Kauffman, 4 Misc. Rep. 83 ; 53 St. Rep. 69. Plaintiff, if he had this proof, could have presented it, and thus avoided any further trouble.

For this reason, judgment must be reversed, and a new trial granted, with costs' to the appellant to abide the event.

All concur.


author: TITUS, C. J.

text:
    In the Matter of an Application by A. D. Gains for an Order for the Examination of William H. Heath.

      (Buffalo Superior Court, Special Term,

      Filed December, 1895.)

    1. Deposition—Discovery—Affidavits.
    Under section 873 of the Code, the affidavit is sufficient where it avers that the person to be examined unskillfully and negligently performed a surgical operation on affiant, and thereby caused him permanent injuries.
    3 Same—Jurisdictional facts.
    Rule 83 of the supreme court rules does not dispense with the necessity of alleging what is required in the Code to be stated in the affidavit, “that the testimony of such person is material and necessary for the party making the application.”
    3. Same—Affidavit.
    The allegation in the affidavit that “ it is necessary that your petitioner have the privilege of examining said ” person, is not equivalent to. alleging that his testimony is material and necessary, and in such case, the court does not, by reason of a failure of plaintiff to state'necessary facts, acquire jurisdiction of the person of said party and is without power to make the order.
    Application by A. D. Gains for an order for the examination of William H. Heath, expected to be made defendant in an action to be brought for unskillfully and negligently performing a surgical operation on the applicant, Gains. Heath appeared before the referee, but refused to answer material questions. Applicant moves to punish defendant as for contempt for such refusal.
    Herman Henning, for pl’ff ; Thomas Cary Welch, for def’t.
   TITUS, C. J.

— On the 30th day of November, 1895, Herman Henning, Esq., an attorney of this court, presented the verified „ petition of A. D. Gains, together with an affidavit of service upon William H. Heath, and procured an order for the examination of said Heath, under sections 870 and 872 of the Code of Civil Procedure. Heath is expected to be a party defendant to an action to be brought by Gains for negligently performing a surgical operation upon said Gains for stone in the bladder. Heath appeared before the referee, pursuant to the order, but refused, under the advice of counsel, to answer material questions put to him. This application is made for an order adjudging Heath in contempt for such refusal. It is claimed that the petition does not state sufficient facts to confer jurisdiction upon the judge who granted the order.

Section 870 of the Code of Civil Procedure provides :

“ The deposition of a party to an action pending in a court of record, or of a person who expects to be a party to an action about to be brought in such a court other than a court specified in subdivisions sixteenth, seventeenth, eighteenth and nineteenth of section two of this act, may be taken at his own instance or - at the instance of an adverse party, or of a co-plaintiff or co-defendant, at any time before the trial, as prescribed in this article.”

So much of section 872 as is material here provides that the affidavit shall set forth :

(1) If no action is pending, the names and residences of the expected parties thereto.”

(3) “The nature of the controversy which is expected to be the subject thereof.”

(4) “ The name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application.”

(6) That the person expected to be the adverse party is of full age and a resident of the state. * * * The street and street number.”

It appears from the papers that the applicant, at the time of the "operation, was blind, and was put under the influence of anaesthetics, and has no knowledge of how the .operation was performed, or who performed it, or in what manner he received the injury of which he complains; that his hip was broken in some way, but how he does not know; and that the injury is of a serious and permanent character. If the affidavit brings the case within section 872 of the Code, there is clearly a necessity shown for an examination of Dr. Heath, the expected party to the action about to be brought, and the granting of the order was within the fair and reasonable discretion of the judge making it. Bank v. Sheehan, 101 N. Y. 176 ; Fatman v. Fatman, 45 St. Rep. 859.

The defendant claims that no cause of action is stated against Heath or any other person. While the affidavit is inartisticall-y drawn, and the facts are not stated with that degree of precision which is customary in a complaint, yet I think the plain statement of facts contained in it shows that the plaintiff has a cause of action against Heath. It is alleged that Heath and others, whose names are unknown, performed the operation upon him, and that it was unslcillfully and negligently performed. The affidavit states in much detail the fact of his being taken to the hospital, and of his being operated upon, and of his subsequent ascertainment that his hip was broken. In another respect, I think, however, that the affidavit is defective. It does not state that the testimony is “material and necessary,” as required by the Code. It is plain to be seen that the testimony is material and necessary, and in this respect complies with the requirement of rule 83 ; but it is, nevertheless, not a compliance with the requirement of the law. The rule does not dispense with the necessity of alleging what is required in the Code to be stated in the affidavit, “that the testimony of such person is material and necessary for the party making' the application.” Beach v. Mayor, etc., 14 Hun, 81 ; Chapin v. Thompson, 16 Hun, 53. The affidavit contains no allegation which can be construed into a statement that the testimony sought to be obtained is material and necessary for the party making the application. It is-alleged that “it is necessary that your petitioner have the privilege of examinaing said Heath,” etc.; but this is not equivalent to alleging that his testimony is material and necessary, and it was so-held in Beach v. Mayor, etc., supra. The right of a party under this provision of the Code is strictly statutory, and the mode pointed out by the statute must be followed; otherwise, no power is conferred upon the judge to make the order. Heishon v. Insurance Co., 77 N Y. 278. I am aware that it has been held in some cases that after an order has been made by a judge, and served upon a party, the proper course to pursue is to move at once to set it aside. That is, undoubtedly, the correct practice; but here the court did not, by reason of a failure of plaintiff to state the necessary facts, get jurisdiction of the person of Heath, and was without power to make the order. As well might the judge grant the order without any of the affidavits required by the statute to confer jurisdiction upon the court, and then claim that a person would be guilty of contempt in failing to obey an order mads under such circumstances. The trouble here is that the-judge had no power to grant the order on the papers presented, and never obtain jurisdiction over the person of Heath, and consequently the order was void and without force. This is not a mere irregularity in granting the order, which the party waives by appearing in obedience to it, because, as has been stated, no sufficient facts were stated in the affidavit to confer jurisdiction to grant the order. I think, therefore, that plaintiff’s motion must be denied, and the order vacated and set aside, but without costs.

Motion denied and order vacated, without costs.


author: McADAM, J.

text:
    Lawrence P. Farley, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    1. Municipal corporations—Fireman—Pension.
    Section 519 of the Consolidation Act is in the nature of compensation for the unusual hazard and risk assumed in the employment, and a fireman so disabled, and who accepts retirement on the pension provided, cannot maintain an action against the city for negligence in causing the injury.
    2. Same.
    Section 1932 of the Consolidation Act, which prohibits driving in the city at a greater rate of speed than five miles an hour, is binding on the fire department.
    3. Same.
    A fireman, who is injured while driving at an unusual and dangerous speed in a dark street, is guilty of contributory negligence, unless the speed is required in the performance of his duty, and, in that case, the attendant risk is assumed by his employment.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Francis M. Scott and. T. Connoly, for app’lt ; A. & C. Steckler, for resp’t.
   McADAM, J.

The plaintiff was a fireman, attached to engine company Ro. 20, being driver of the hose cart which formed part of the company’s outfit. On November 20, 1892, upon the receipt v at company quarters of an alarm of fire, at about 1:30 a. m., he got into his seat, and drove towards the fire as fast as he could; going through Marion street into Broome, east towards the Bowery. It was dark, and he could see nothing in front of him. While driving through Broome street the hose cart struck a truck stored upon the street, and the plaintiff was thrown to the ground, sustaining injuries from which he may never recover.' He sued the municipality, and recovered a verdict for $7,500, which, under the circumstances, is not excessive. The action was brought, not on the theory of nuisance, but because of the defendant’s alleged negligence in allowing the truck to remain in the driveway after the expiration of a time sufficient to imply notice to it of its presence there. Assuming that the city would be liable to a person using the highway in a prudent manner, the question remains whether the plaintiff, an employee of one of the departments of the municipality, is entitled to recover under the circumstances. A fireman’s calling is hazardous, and, when he enters the service, it must be assumed that he takes upon himself all the attendant risks. Quickness in getting to fires is the prime essential of effective service, and the dangers incident thereto risks of the employment. That the position is one of danger is manifest from section 519 of the consolidation act, which provides in part as follows:

“In case of total permanent disability, caused in or iuduced by the actual performance of the duties of his position * * * the amount of annual pension to be allowed shall b'e one-half of the annual compensation allowed such officer or member as salary at the date of his retirement from the service,” etc.

The plaintiff availed himself of this provision, and was retired on half pay, viz. $600 a year. If a private individual were injured by the negligence complained of, he would not be cared for in this manner, and the damages recoverable would be his only compensation. The consolidation act (section 1932) prohibits driving in the city at a greater rate of speed than five miles an hour. If a private individual were injured while violating this statute, and the violation in any manner contributed to the injury, no recovery could be had; and if, as in this case, the street was dark, and he could see nothing in front of him, the violation would certainly be calculated to contribute to the accident. It is difficult to conceive any logical reason why the same result should not be reached here.

The next question is whether the statute is binding on the fire department. In Morse v. Sweenie, 15 Ill. App. 486, the appel- ■ late court of Illinois held that an ordinance of the city of Chicago as to immoderate driving was as binding upon the fire department as upon drivers of ordinary vehicles, and that the law did not recognize any privileged class, such as members of the fire or police department of the city, as tpossessing rights so superior to those of other citizens of the state as to exempt the former from the exercise of proper prudence and care in the use of the streets! The question there arose in an action against a fire-marshal who, while driving to a fire, negligently ran into the plaintiff’s team, but the underlying principle decided reaches this contention. If the rule were other than that laid down in the case cited, it would follow that the speed at which a driver drives his horses should be left to that care and caution which the exigencies of the occasion require. Thus, prudence would dictate that in a narrow street, or in a dark or crowded thoroughfare, he should not go with that rapidity warranted in a clear thoroughfare in broad daylight. If the plaintiff disregarded such considerations, he would be plainly negligent; and, if the imprudence would not be sufficient to prevent recovery of damages by him on the theory of contributory negligence, it would be because it is one of the risks incident to his employment, compensated for by section 519 of the consolidation act, supra. If the action had been for creating or maintaining a nuisance in the public highway, of which the plaintiff was unaware, and he had, without fault on his part, run the horses into a pitfall which the municipality had failed to guard, and he had no accepted compensation for the injury, a different question must arise.

ít follows that the defendant’s motion to dismiss the complaint should have been granted, arid the exception to the refusal pre-" sents error for which the judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.


author: GILDERSLEEVE, J.

text:
    The People ex rel. Patrick H. McCullough, App’lt, v. J. Sargeant Cram et al., as Dock Commissioners, etc., Resp’ts.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

      1. Municipal corporations—Officers—Removal.
    « Where the power of appointment is conferred in general terms and without restriction, the power of removal, in the discretion and at the will of the appointing power, is implied and always exists, unless restrained and limited by some other provision of law.
    ■ '2. Same.
    A roundsman in the employ of the dock department of the city of New York may he discharged without a hearing.
    Certiorari to review the action of the board of doclq commissioners of the city of JTew York, dismissing relator from the service of the department.
    Louis J. Grant, for relator ; Francis M. Scott (Terence Farley, of counsel), for resp’ts.
   GILDERSLEEVE, J.

—This matter comes before us on a writ of certiorari, duly issued, and we are asked to review the determination of the respondents, composing the board of dock comm issioners of the (lock department of the city of Mew York, whereby they adjudged the relator to be guilty of neglect of duty, and discharged him from the service of the department. It appears from the return to the writ, wnich must be taken as conclusive and acted upon as true (People v. Board of Fire Com’rs of City of New York, 73 N. Y. 439), that the reiator was a roundsman in the employ of the department of docks at the time of his discharge. The status of the relator was not such as entitled him to a trial, or an ' opportunity to be heard. The relator is in .error in assuming that such a right belonged to him. It only exists where expressly conferred by the statute. The power to appoint the relator was conferred in general terms, and carried with it the power of removal at the discretion and will of the appointing power. With respect to the tenure or duration of a public employment,' such as the relator had at the time of his dismissal, the general rule is that, where the power of appointment is conferred in general terms, and without restriction, the power of removal, in the discretion and at the will of the appointing power, is implied, and always exists, unless restrained and limited by some other provision of law. People v. Board of Fire Com’rs of City of New York, 73 N. Y. 437 ; Bergen v. Powell, 94 id. 591 ; Ex parte Hennen, 13 Pet. 239 ; Laimbeer v. Mayor, etc., 4 Sandf. 109 ; People v. Thompson, 94 N. Y. 451 ; People v. Mayor, etc., of City of New York, 5 Barb. 43. This general rule was embodied in the constitution of this state in the following language :

“ When the duration of any office is not provided by the constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority, making the appointment.” Article 10; § 3 ; People ex rel. Cline v. Robb, 126 N. Y. 180;. 37 St. Rep. 8_

_ _ Section 718 of the consolidation act provides, in part, as follows:

“ The board of dock commissioners shall appoint a secretary and such subordinate officers, clerks, and agents, as shall be necessary to assise said board in the performance of its duties and the exercise of its powers.”

By section 48 of the consolidation act the heads of all departments have the power of appointing and removing at pleasure all chiefs of bureaus and all clerks in their respective departments, unless such officers are protected from removal at pleasure by the following limiting clause, contained in said section, to wit:

“But no regular clerk or head of bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation!”

The relator is not a head of a bureau, nor is he a regular clerk. The statute, by distinguishing between these two classes of officials and other clerks, officers, employes, and subordinates, necessarily leaves those not thus named and expressly excepted from the operation of the general powers subject to removal at the pleasure of the board. This follows from the familiar rule of interpretation of the statute, “Expressio unius est exclusio alterius.” The power to remove at pleasure is conferred in general terms, and but two classes of all the officers and employes are excepted from its operation, and given the benefit; of a hearing, and subjected-to a removal only for cause. People v. Koch, 2 St. Rep. 110 ; Jackson, v. Mayor, etc., 87 Hun, 296 ; 68 St. Rep. 270 ; People v. Board of Fire Com’rs of City of New York, 73 N. Y. 439.

The relator has not asserted the rights accorded under the veteran laws, and, therefore, does not come within their provisions. In re Shay, 39 St. Rep. 856 ; People ex rel. Murphy v. Howell, 37 St. Rep. 181 ; People ex rel. Sullivan v. Waring, infra.

The writ of certiorari should be quashed, and the proceedings-dismissed, with $50 costs and disbursements.


author: BEEKMAN, J.

text:
    The People ex rel. Sullivan, Pl’ff, v. Waring, Deft.

      (Supreme Court, New York Special Term,

      Filed November 6, 1895.)

    1. Municipal corporation—Officers—Removal.
    Where the relator does not allege that he gave notice that he intended to claim any privilege as a veteran, and there is a distinct allegation by-the respondent that no such notice was given, the motion that a peremptory mandamus issue, directing the commissioner of street cleaning to reinstate the relator as driver in the street cleaning department, must, it seems, be denied.
    a.» Same.
    , Where the discharge of the petitioner is unlawful, the fact that he immediately accepted a place in the department of public works, and entered upon the performance of the duties of his new place, is a complete acquiescence in his discharge, which gives it substantially the same effect, so far as his relations with the street cleaning department are concerned, as though he had voluntarily resigned his situation.
   BEEKMAN, J.

The petitioner was appointed a driver in the street cleaning department in the city of New York on the 7th day of April, 1894, and continued in his employment until March 28,1895, on which day he received a letter from the commissioner of street cleaning as follows: “Upon evidence satisfactory to me that you are guilty of neglect of duty and disobedience of orders, in that you have absented yourself from the yard, and refused to issue receipts when requested, you are dismissed, and your position as driver (detailed) in the department of street cleaning is vacated from and after this date.” The petitioner claims that this discharge was unlawful, as he was a veteran soldier of the late war, honorably discharged, and could, therefore, only be removed for cause, after hearing had, under chapter 119 of the Laws of 1888. His moving papers do not state that the commissioner was advised of his war record, or that he ever made any claim to the privileges conferred upon veterans in the public service by the above-mentioned statute. Stress seems to have been laid upon such omission as this in the cases of People ex rel. Murray v. Andrews ; In re Shay, 39 St. Rep. 856, and In re Wortman, 2 N.Y. Supp. 324, which certainly tend to support the claim that, in the absence of such a notice, a mandamus will not issue. The respondent, in his answering papers, furnishes the affidavit of the registration clerk in, the department of street cleaning, in which that officer states that, at the time of the application of the petitioner for appointment in the department, he made no claim that he was a veteran, or was entitled to any preferance or right, as such, under the statutes, by reason of being such veteran, and that no record appears in the department of street cleaning that he was any such veteran, or that he made such claim prior to his dismissal. In this connection it is proper to refer to section 704c of the Mew York City consolidation act, as amended, which provides, among other things, that every applicant for appointment to a position on the uniformed force of the street-cleaning department must state to the registration clerk, under oath, his name, residence, age, place of birth, his services, if any, in the army or navy in time of war, his present employment, if any, and his past occupation; and his answers to these questions are required to be recorded by such cleric. It may, therefore, fairly be claimed that at least an issue is presented in respect to the standing of the petitioner as a veteran, which, under the cases, is sufficient to call for a denial of the motion for a peremptory writ of mandamus in the first instance. But it is not necessary to place the denial of the motion upon this ground. It appears from the affidavit of the respondent that, prior to his discharge, the petitioner had passed a civil service examination, under the civil service board of the city of Mew York, for the position of clerk, and on the 26th day of March, two days before his discharge from the street-cleaning department, he was specially certified by the said civil service board to the department of public works as qualified for appointment to such a position; and on the 28th day of March, the day on which he was discharged from the street-cleaning department, he was duly appointed by the commissioner of public works a clerk in the department of public works, at a salary of §900 per annum, the appointment to take effect on the 1st day of April thereafter. Pursuant to such appointment, the petitioner reported to the department of public works, was assigned to duty therein under his said appointment, and performed the duties of the place on the 1st, 2d, and 3d days of April. Upon the latter date he was notified by the deputy commissioner of public works that the latter had just learned that he had been discharged from employment in the street-cleaning department fox-insubordination and neglect of duty, and that he was not, thex-efore, entitled to appointment in the department of public woi'ks under the civil service rules, and was accox-dingly discharged from the clerical position to which he had been appointed in that department. Whereupon proceedings were instituted by him against the commissioner of public works for a mandamus to compel the latter to reinstate him. The papex-s do not disclose the result of that proceeding. It was probably undetermined at the time that this proceeding was instituted. It is immaterial, however, what the result of it may have been or may be. Assuming, for the pux-poses of ax-gument, that the discharge of the petition from the department of street cleaning was unlawful, the fact that he immediately accepted a place in the department of public works, and entered upon the performance of the duties of his new place, was a complete acquiescence in his discharge, which gave it substantially the same effect, so far as his relations with the street-cleaning department were concerned, as if he had -voluntarily resigned his situation. He could not legally hold both places, and his acceptance of the latter appointment necessarily involved a legal relinquishment of his former place. It may be fairly inferred, from the facts before me, that the petitioner accepted the appointment'in the department of public works, not by reason of his dismissal from the street-cleaning department, but because of an intention so to do formed some time before. The proceeding instituted by him against the commissioner of public works shows' a determination to insist upon his right ■ to be considered as still in the employment of that department, and is inconsistent with the attitude assumed by him in this proceeding. I think that, on all the grounds above mentioned, it is quite clear that he is not entitled to the relief which he asks on this motion.

The motion is, therefore, denied, with costs.


author: PATTERSON, J.

text:
    Edward J. Roberts et al., Resp’ts, v. Safety Buggy Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Bill of particulars—Contract.
    Where, in an action for breach of contract by which the defendant agreed to sell to plaintiffs goods at a certain price and to give them the exclusive right to sell such goods in a certain territory, and both parties stipulate not to sell at less than a specified price, the breach alleged was that sales were made in plaintiffs’ territory through agents other than plaintiffs, the plaintiffs should furnish to the defendant the name of the agent who made the alleged sales in violation of such contract, the place at which they were made and the name of each person to whom an alleged and improper sale is claimed to have been made; but plaintiffs should not be required to disclose other evidence.
    2. Same.
    An allegation that by reason of the violation of the contract by the defendant, the plaintiffs had been prevented from selling the vehicles bought by them, is in the nature of special damage, and in such case a bill of particulars of the damage is generally allowed.
    Appeal from an order denying a motion to compel plaintiffs to furnish a bill of particulars.
    C. F. Groddard, for app’lt ; E. H. Wilson, for resp’ts.
   PATTERSON, J.

The order denying the motion for a bill of particulars should be reversed. Under the allegations of the complaint and the issues raised by the answer, the defendant was entitled to the particulars of some of the matters stated in the complaint as constituting plaintiffs’ cause of action, although not ■ to the extent suggested in the notice of motion. The action is for the breach of a contract by which the defendant agreed to sell to the plaintiffs certain vehicles at $55 apiece, and in consideration of the purchase by the plaintiffs the defendant stipulated to gi-ve to the plaintiffs the control of sales of vehicles manufactured by it in the cities of New York and Brooklyn, and Newark, Ho? boken and Orange, N. J., and the defendant also agreed not to sell vehicles of a similar character in the places above named; and there was also a stipulation in the contract that neither of the parties would sell to others vehicles of the character referred to at a less price than $75 each, less 5 per cent, discount. The breach claimed is that the defendant violated the contract by selling vehicles of the same character to divers persons at divers places at less than $75, and that, through agents other than the plaintiffs, such interdicted sales were made in the places above named; and the plaintiffs claim that by reason of such violation they were unable to make sales of the vehicles purchased by them at the agreed price, and that they have been prevented from making sales at all, to their damage.

It was claimed, in opposition to the motion, that a bill of particulars should not be allowed because the information sought to be obtained must be within the knowledge of the defendant. But that, under the circumstances of this action, is not a sufficient answer. The defendant should not be put to the necessity of compelling the attendance in court of each of its agents, and of every person to whom it, through its agents, has sold vehicles, to be ready to meet the testimony of any one witness or more who may be put upon the stand to prove the breach of the contract alleged in the complaint. That would be imposing upon it a burden which it should not bear. It is altogether reasonable that the plaintiffs should furnish to the defendant the name of the agent who made the alleged sales in violation of the plaintiffs’ contract, the place at which they were made, and the name of each person to whom an alleged improper sale is claimed to have been made. Such particulars will be sufficient to enable the defendant to prepare for trial, but, further than that, on this branch of the motion, plaintiffs should not be required to disclose their evidence, nor make any further statement now with reference thereto.

On the other branch of the motion, namely, that relating to the particulars of the damage sustained' by the plaintiff, we think the motion should also have been granted. The allegation that by reason of the violation of the contract by the defendant the plaintiffs have been prevented from selling the vehicles bought by them is in the nature of special damage, and under such circumstances a bill of particulars of the damage is generally allowed. Isaac v. Wilisch, 69 Hun, 339; 53 St. Rep. 360; Kraft v. Dingee, 38 Hun, 345; Justum v. Stone Masons’ Union, 78 Hun, 503; 61 St. Rep. 163.

The order denying the motion for a bill of particulars is reversed, and the motion granted to the extent above indicated, with $10 costs and disbursements, with leave to the plaintiffs to serve an additional bill of particulars as to the violation by the defendant of the contract at any time within ten days of the trial.

All concur.


author: BARLETT, J.

text:
    James McManus, App’lt, v. John Ennis, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 21, 1896.)

    Judgment—Correction.
    A judgment which is entered by consent of defendant, but which is broader than the consent authorized, will not be vacated where plaintiff agrees to its modification to conform to such consent.
    Appeal from an order, denying defendant’s motion to re-open a judgment entered by consent.
    Henry M. Dater, for app’lt ; William Adams Robinson, for resp’t.
   BARLETT, J.

— This action was brought to abate an alleged nuisance, consisting in the maintenance of certain cow stables by the defendant in the city of Brooklyn, and to enjoin the further continuance of such nuisance. When the case came on for trial a settlement was proposed, and the parties and their counsel agreed to the entry of a judgment which should award to the plaintiff the relief demanded in the amended complaint. The judgment actuallyo entered upon this consent was broader than it authorized and the terms of the judgment were such as to require the defendant, not only to cease maintaining the alleged nuisance, but to remove the stable structures from his premises. The defendant, ascertaining this, moved at special term to modify the judgment by striking out this requirement, or that he be granted such other relief as might be just. Thereupon the court made an order, the effect of which was to modify the judgment by omitting therefrom the direction for the removal of the defendant’s buildings, and to provided for setting it aside unless the plaintiff should consent to such modification. The plaintiff did consent, and the modified judgment was entered in lieu of the original. The defendant now appeals from the modified judgment, and from the order of modification, so far as it denied his motion to reopen or set' aside the judgment.entirely. .

We are unable to perceive that the appellant has any grievance. The papers read o,n the motion leave no doubt that the judgment as modified, is the judgment which the defendant consented sho'uld be taken against him. The defendant’s own affidavit shows that his purpose in making the application was to protect his buildings. The modification granted by the court had precisely that effect. He thus obtained everything to which he was entitled. So long as the original judgment stood, he had cause for complaint, because it did not conform to his consent; but, after it was amended so as to accord therewith, his cause for complaint was gone. The brief of the learned counsel for the defendant is largely devoted to a discussion of the proposition that an attorney has no authority to bind his client by consenting to the entry of a judgment, without his client’s consent. This point however, we do not deem it necessary to consider, inasmuch as the statements of the defendant himself show that he participated in whatever consent was given.

The judgment and order appealed from should be affirmed, with $10 costs and disbursements. As the judgment was entered by consent, and is appealed from only by reason of a controversy in regard to the terms in which it should have been drawn, the full costs usually allowed upon an appeal from a judgment ought not to be awarded in this case.

All concur.


author: PER CURIAM.

text:
    A. D. Merry, as Receiver, etc., App’lt, v. Dwight Wilcox et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

      i. Chattel mortgage—Filed—Void.
    A chattel mortgage, not accompanied, by an immediate delivery and a continued change of possession of the property mortgaged, is absolutely void as to the creditors of the mortgagor, unless the mortgage, or a copy thereof, is filed as required by chapter 379 of 1833.
    S. Same.
    A delay of two and a half months after its execution in filing a chattel mortgage is not a compliance with said act.
    3. Same.
    If, in such case, the property is taken and sold, by virtue of the mortgage before any lien is obtained by a creditor, the mortgagee may be compelled by such creditor to refund the proceeds.
    4. Same—Bona eide purchaser.
    Where the title to the property is vested in the bona fide purchaser before the creditor acquires any lien upon or interest in such property, and before a receiver is appointed, the purchaser obtains a valid title, which he can maintain against the receiver.
    Appeal from a judgment dismissing the complaint on the merits. »
    Gill, Stilwells & White, for app’lt; O. M. Reilly, for resp’ts Howard Wilcox and William Greene.
   PER CURIAM.

—As indicated by the complaint, the purpose of this action was to procure a judgment adjudging that, as against the plaintiff, a chattel mortgage made by the defendant Dwight Wilcox to Howard Wilcox was void; that the title of William Greene, who purchased the property upon a sale under such mortgage, was invalid; that the plaintiff was the owner of the mortgaged property; , and that the defendants be required to deliver it to him, or that an accounting be had with the defendants, and that they be required to pay the plaintiff the value thereof. On October 18, 1894, the First National Bank of Syracuse recovered a judgment against Dwight Wilcox for $609.13, which was entered in Onondaga county. On that day a transcript was filed, the judgment docketed in Oswego county, and an execution was issued thereon to the sheriff of that county, where the defendant Dwight Wilcox then resided and now resides. Subsequently such proceedings were had that the plaintiff was duly appointed receiver of the property of the defendant Dwight Wilcox, and qualified as such. The order appointing him was entered in Onondaga county, and a copy thereof filed in Oswego county, December 12,1894. On the 1st day of August, 1894, Dwight Wilcox was the owner of the property mentioned in the complaint, and, for the purpose of securing Howard Wilcox for the sum of $400 loaned by him to Dwight Wilcox, the latter on that day executed and delivered to the former a chattel mortgage thereon. At the time the mortgagor was indebted to various persons; among others, to the First National Bank of Syracuse, for the claim upon which its judgment was recovered. The mortgagee intentionally retained the mortgage in his possession until the 17th of October, 1894, when it was filed in the office of the clerk of the town of Granby, where the mortgagor resided. On the 20th day of October, the mortgagee caused three notices to be posted in that town, advertising the property for sale under the power contained in the mortgage, and, in pursuance of such notice, sold it on the morning of October 27th to-the defendant William Greene, for $225. Since the sale the property has been -in the possession of the purchaser, except a small portion, which remains in the hands of the mortgagor. The execution of this mortgage was not accompanied by any immediate delivery of the mortgaged property, or followed by an actual or’ continued change of possession, nor was the mortgage filed until October 12, 1894. The execution in favor of the bank was returned wholly unsatisfied before the commencement of 'this action and before that time the plaintiff demanded of the mortgagee and of the purchaser the possession of the mortgaged property, or payment of the value thereof. The defendant Howard Wilcox is irresponsible. The mortgage was given and received to secure the payment of an honest debt, with no intention on the part of either the mortgagor or mortgagee to cheat or defraud the bank, or any other creditor. The property was purchased by the defendant Greene without any notice or knowledge that the First National Bank had any claim against the property, or that any person claimed any interest in it, except the mortgagor and mortgagee. The foregoing is a brief statement-of the facts found by the trial court. Upon these facts the special term held that the-defendant Greene was a purchaser in good faith, for a- valuable consideration, and without notice, and that the defendants were entitled to a judgment dismissing the complaint upon the merits, with costs. Upon filing this decision a judgment was entered in accordance with it. The propriety of this judgment is challenged by the appellant. The appeal in this case was heard upon the judgment roll and exceptions only, and in determining it the facts as found by the trial court may be regarded as established. The broad question presented is whether, upon the facts found, the conclusions of law and judgment entered in pursuance thereof can be upheld.

As the mortgage in this case was not accompanied' by an immediate delivery and a continued change of the possession of the property mortgaged,- it was absolutely void, as to the creditors of the mortgagor, unless the mortgage, or a copy thereof, was filed as required by chapter 279 of the Laws of 1833. The bank was a creditor as to which the mortgage was void. Karst v. Gane, 136 N. Y. 316 ; 49 St. Rep. 740 ; Stephens v. Perrine, 143 N. Y. 476 ; 62 St. Rep. 843 ; Mandeville v. Avery, 124 N. Y. 376 ; 36 St. Rep. 338. In this case there was a delay of more than two and one-half months before the mortgage was filed, and there were no circumstances or facts found which indicated that any such delay was necessary. On the contrary, the court found that the mortgage was intentionally retained in the possession of the mortgagor from the time it was given until the date of its filing. Under such circumstances, the mortgage was void, as against the claim of the bank. Karst v. Gane, supra. In that case it was held that while the statute of 1833 does not in terms require an immediate, filing of a chattel mortgage to make it valid, yet prompt and diligent action on the part of the mortgagee is required. It was also held that in the absence of circumstances rendering the delay necessary, where there was a delay of six weeks after its execution in, filing a chattel mortgage, such filing was not a compliance with the act.

Assuming, then, as we must, that as to the creditor represented^ by the plaintiff, the mortgage was void, two questions are presented : (1) Whether the plaintiff was entitled to recover from the mortgagee the proceeds of the property sold ; and (2) whether Greene, who was a bona fide purchaser, acquired a valid title to the property, ar against the plaintiff.

We think the first question must be answered in the affirmative. Mandeville v. Avery, 124 N. Y. 376 ; 36 St. Rep. 338, seems to be in point, and decisive of the question In that case it was held that although the mortgagee had an honest claim, which the mortgage was given to secure, yet as there was no change of possession, and the mortgage was not properly filed, he could not,' as against the creditor of the mortgagor, retain the property obtained by him under his mortgage, and that when the property had been taken and sold, by virtue of the mortgage, before any lien was obtained by the creditor, the mortgagee might be compelled by the creditor to refund the proceeds. Hence, the plaintiff was entitled to a judgment, requiring the mortgagee to account for, and pay over to the plaintiff, the proceeds of the sale.

This leads us to consider whether the plaintiff could enforce any claim to the property against the defendant Green, who was a bona fide purchaser. When he acquired his title, neither the bank nor the receiver had any right or interest in it. When the receiver was appointed, the title which the mortgagor and mortgagee had in .the property had been wholly divested. It had been previously transferred to a bona fide purchaser. It is true that the supplementary proceedings were instituted the day before the mortgage sale, but, under the Code, the title of the receiver did not exténd back by relation to that time. The provision of the Code which establishes the time when the title shall vest in such a receiver, and when it shall extend back by relation to the commencement of the proceeding, declares that its provisions shall not affect the title of a purchaser in good faith, without notice, and for a valuable consideration. Code Civ. Proc. § 2649. If the property had been purchased by the mortgagee, he would have acquired no title that could have- been maintained against the creditor or receiver. Stephens v. Perrine, 143 N. Y. 476 ; 62 St. Rep. 843. But as the title had vested in a bona fide purchaser before the creditor acquired any lien upon or interest in the property, and' before the receiver was appointed, we are of the opinion that the purchaser obtained a valid title, which he can maintain as against the receiver. Although not directly deciding the question, the cases of Kitchen v. Lowery, 127 N. Y. 60 ; 37 St. Rep. 327 ; Mandeville v. Avery, 124 N. Y. 376, 385 ; 36 St. Rep. 338 ; Zoeller v. Riley, 100 N. Y. 102 ; Simpson v. Del Hoyo, 94 id. 189, and Ledyard v. Butler, 9 Paige, 132,—seem to recognize that doctrine. If the opposite doctrine were to obtain, titles to personal property which had been sold under a chattel mortgage would be -rendered dangerously uncertain. We cannot believe that it was the purpose of the statute of 1833 to render such a mortgage void, except as betw een the creditors and parties to the mortgage, or persons acquiring title under it mala Mes, or without consideration. These conclusions, if correct, require a reversal of the judgment as to the defendant Howard Wilcox, and that it should be affirmed as to the other ^ defendants.

Judgment reversed and anew trial granted as to the defendant Howard Wilcox, and judgment affirmed as to the other defendants, without costs of appeal to either party.


author: BRADLEY, J.

text:
    George Lowenthal, Resp’t, v. Maria E. Lowenthal, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Divorce—Practice.
    Upon the trial of an action for divorce, defendant has a right to have the issue, taken by the answer to a charge of adultery, tried by a jury.
    2. Same.
    But the court can, when the action comes before it for determination and after verdict, reconsider the other matters within the issues, and disregard them, for the purposes of the result to be determined by the decision.
    3. Same.
    Where there is no support in the evidence for the finding that any act of adultery of the defendant was committed with the _ consent, connivance, privity or procurement of the defendant, the court is at liberty, in its decision following the verdict, to disregard the answer so made by the jury to that interrogatory, and determine such question to the contrary.
    4. Trial—Irrelevant evidence.
    Upon the trial of such action, an inquiry as to whether a certain locality had a reputation as a resort of persons for immoral purposes creates no prejudice against defendant, where it does not appear that she and her companion ever went to that place.
    5. Same—Instruction.
    Upon tiie trial of such action, a refusal to instruct the jury that a divorce should not be granted without evidence which is, after scrutiny, satisfactory and can command the confidence of a careful and prudent and cautious judge or jury, is not error, where the court charged that the question for the jury was whether the plaintiff’s case had been proved by a fair preponderance of evidence.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion, and also an order setting aside an answer of the jury to the thirteenth interrogatory.
    Quincy Van Voorhis, for app’lt ; David Hays, for resp’t.
   BRADLEY, J.

—The action is divorce. Of the fourteen qu.es- ' tions framed for trial by jury, the first one only was submitted to them. That one related to the charge of adultery, and the jury found against the defendant on that issue. The court directed the jury to answer by their verdict the other of the questions in the negative. The jury did so. Thereafter it was discovered that the court, by misapprehending the form of the question numbered thirteen, directed the answer to it, in effect, contrary to that intended. The thirteenth was the inquiry on the subject of the consent of the plaintiff to any of the alleged acts of adultery. Upon the plaintiff’s motion, the answer of the jury, thus directed and given to that interrogatory, was set aside, and judgment by order was directed for the plaintiff. The defendant’s motion, made on a case and exceptions, for a new trial, was denied. The right of the defendant was to havé the issue taken by the answer to the charge of adultery tried by jury. Code, § 1757 ; Conderman v. Conderman, 44 Hun, 181 ; 7 St. Rep. 789. It was so tried. The subsequent proceedings in such case are the same as that in which issues are framed for jury trial in a case where neither party can, as of right, require such a trial, except that the findings of the jury on the issue of adultery is conclusive, unless the verdict be set aside, or anew trial granted. Code, § 970. The court, therefore, when the action came before it for determination, and after verdict, could reconsider the ' other matters within the issues, and disregard them, for the purposes of the result to be determined by the decision. Whitney v. Whitney, 76 Hun, 585 ; 58 St. Rep. 272, and cases there cited.

There was no support in the evidence for the finding that any act of adultery of the defendant was committed with the consent, connivance, privity, or procurement of the plaintiff, and the court was at liberty, in its decision following the verdict, to disregard the answer so made by the jury to that interrogatory, and determine such question to the contrary. Acker v. Leland, 109 N. Y. 5 ; 14 St. Rep. 23. The affirmative and onus of proof were with the defendant upon that issue. McCarthy v. McCarthy, 143 N. Y. 235 ; 62 St. Rep. 184. It follows that there was no error prejudicial to the defendant in settmg aside the answer given by the jury to the thirteenth interrogatory.

The question whether the charge of adultery against the defendant was sustained by proof was one of fact for the jury. It was, by the charge of the court, fairly submitted to them, and the verdict, as found in that respect, was warranted and supported by the evidence, to which it is unnecessary here to specifically refer. The place of the occurrence upon which the charge of adultery was made.was in what called the “Hooker Road,” which led to land adjacent to the river. A witness was asked by the plaintiff’s counsel whether that place adjacent to the river had a reputation as a rendezvous of persons for immoral purposes. The defendant’s objection was overruled, and exception taken, and the witness answered in the affirmative. While the evidence may not have been competent or relevant, it is not seen that the defendant could have been prejudiced by it. It does not appear that she and her companion went to that place adjacent to the river on the occasion referred to, or that they were there at any time;- and therefore the character of that place could have had no pertinence or consideration of the j-ury bearing upon the question submitted to them. It seems quite clear that such evidence must necessarily have been entirely harmless.

The court was requested by the defendant’s counsel to charge the jury that “a divorce should not be granted without evidence which is, after careful scrutiny, satisfactory, and can command the confidence of a careful and prudent and cautious judge or jury.” This was well enough,'and such instruction may properly have been given to the jury. But the charge made, in answer to the request to that effect, was that the question for them was whether the plaintiff’s case had been proved by a fair preponderance of evidence; thus instructing the jury that the support of the charge against the defendant was dependent upon such preponderance of evidence, and was all that the court was legitimately required to charge on the subject of the request. No error, therefore, can be predicated upon the exception to the refusal or failure of the court to charge as requested.

The final completion of the trial in such a case as this should be represented by decision of the court, and the dieision inay state concisely the grounds upon which the issues have been decided, and direct judgment thereon. Code, § 1022. In the present case an order was made by the court directing judgment in favor of the plaintiff for the relief demanded in the complaint. The decision provided for by the statute last cited is to be made and filed, and the defeated party is at liberty to file the exceptions to it. The order referred to is not the decision contemplated by the statute. The plaintiff’s attorney may deem it necessary to obtain from the trial court decision, and-file it, with a view to completely perfect the judgment; and, whether the defendant .may or not thereupon file exceptions, and take another appeal from the judgment, it is not now necessary here to inquire. Instead of making a motion for alleged irregularity in that respect, the defendant has appealed from the judgment, as well as from the order denying the motion for a new trial, and we have considered the case on the merits, and reached the conclusion that there was no error at the trial to the prejudice of the defendant, and that the judgment and order should affirmed.

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


text:
    Mary Beier, App’lt, v. Nellie N. Spaulding, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Payment—Mistake.
    Under an allegation, in an action to recover money paid by plaintiff to defendant for an interest in a contract to purchase land, which defendant had rescinded because the vendor’s title was defective, that defendant represented to plaintiff that the vendor’s title was perfect, that the money paid by plaintiff would be entirely safe, and that, if any trouble arose concerning the title, defendant would return the money, and that plaintiff relied upon such representations, and was induced thereby to make.the payment, evidence of mutual mistake is admissible.
    £ Contract—Rescission.
    Where a party has, in an action to rescind a contract, asserted entire ownership thereof, tender of an assignment of a part interest therein is not necessary before commencing an action to recover the amount paid therefor.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.
    By contract of date December 24,1882, Leonard Fierle and Victoria, his wife, agreed to sell to the defendant certain premises situate in the town of Hamburg, Erie county, for the sum of $3,500, of which the defendant agreed to and did then pay $500, and agreed to pay $1,000 in six months, and the vendors agreed thereupon to convey to her by warranty deed, and take her bond and a mortgage on the premises to secure the payment of the residue of the purchase money; and they also agreed to furnish full tax and title searches, showing a marketable title, within ten days after the date of the contract. On December 30, 1892, the defendant assigned to the plaintiff an undivided third part of an interest in that contract, in consideration of $500 then paid to her by the plaintiff. Afterwards the defendant brought action against the Fierles for alleged failure on their part to perform the contract, and to recover damages sustained by her in consequence of their default. The issues in that action were tried, and decision and judgment followed. By the decision the court found that the defendants therein failed to furnish the searches as they had agreed ; that, at the time of the execution of the contract, they had no title to the property described in-it; and that they had no title thereto between the time of the execution of the contract and August 1, 1893. Judgment was directed in that action for $536.06, and costs. By this action the plaintiff seeks to recover the sum of $500, paid for the transfer of the one-third interest therein. Verdict was directed for the defendant.
    Carleton H. White, for app’l ; Thomas A. Sullivan, for resp’t.
   BRADLEY, J.

—It is urged ou the part of the plaintiff that she is entitled to the return of the sum paid by her for the transfer of one-third interest in the contraer, for the reason that there was a total failure of consideration. For the support of that charge, the plaintiff relies upon the record of a judgment in the defendant’s action against the Fierles, by whieh it appears that the court found that they had no title to the premises described in the contract at the time it was made, nor between that time and the 1st day of August, 1893. This situation constituted a breach of the contract available to the vendee to obtain the relief sought and obtained by her action. But those findings of fact did not necessarily require the conclusion for which the plaintiff’s counsel contends. While, in an executory contract to sell land, there is an implied warranty of title in the vendor, there is at law no available breach on bis part in that fact, if he is ready and able to perform at the stipulated time for the conveyance. Nor is a total failure of consideration necessarily the consequence of want of title in the vendor at that particular time, although time may be of the essence of the contract, and the vendee may have his remedy founded upon the breach to rescind the contract, and recover back the money paid upon it. Burwell v. Jackson ; 9 N.Y. 535; Spaulding v. Fierle, 86 Hun, 17; 67 St. Rep. 235. There was no partial failure of consideration, founded upon warranty in the transfer made by the defendant to the plaintiff. None was expressed m the instrument, and by it no warranty of title to the premises in the vendors was implied. Thomas v. Bartow, 48 N. Y. 193. It cannot, however, be assumed that if the plaintiff had been advised, when she took the transfer from the defendant, that the Fierles then had no title to the premises described in the contract, she would have taken the transfer; and it is quite reasonable to suppose that both parties to such assignment then believed that those vendors had the title. Although it is not specifically alleged in the complaint that it was made and taken by mutual mistake of the parties in that respect, the question whether the assignment was made and taken by mutual mistake as to that fact was properly the subject for proof and consideration, within the purview of the matters alleged by the plaintiff She offered to prove what took place between her and the defendant’s agent who transacted the business in behalf of the defendant; and the offer and ruling excluding it were made in such manner and form as to relate to any matter within the scope of the allegations of the complaint, and legitimately bearing upon any question available to the plaintiff in support of the action. The plaintiff, in her complaint, alleged, in substance, that Willis M. Spaulding, the agent of the defendant, and acting as such in the transaction, stated and represented to the plaintiff, before the payment of the $500 by her for the assignment, that the title of the premises in the Fierles was clear and perfect; that the $500 to be paid by the plaintiff wpuld be-entirely safe; and that, if any trouble arose concerning the title the defendant would return the money to her. And the plaintiff further alleged that she relied upon and was induced by such representation to pay that sum for the transfer so made by the defendant. ■ There is not fraud on the part of the defendant alleged or claimed. It must be assumed that the defendant, through her agent, acted in good faith in making the representations in respect to the title to the premises, and believed them to-be true, as did also the plaintiff. All these facts, or any portion of them, may be deemed to have been included in the evidence offered and excluded; and as the evidence would tend to prove' that the money was paid by the plaintiff, and the assignment taken by her from the defendant, upon their mutual mistake in respeet to the title, and therefore as to the then ability of the vendors to perform the contract, the exception to the exclusion of the evidence was well taken unless some other reason rendered it futile.

It is now urged on the part of the defendant that thb plaintiff was in no situation to obtain rescission of the contract of transfer, and the return of the money paid by her for it, on the ground of mutual mistake, because she had not before the commencement of the action tendered to the defendant the instrument by which the assignment in question was made. There is force in this proposition if the assignment had any value to the defendant, Voorhees v. Earl, 2 Hill, 288, Baker v. Robbins, 2 Denio, 136 ; Wheaton v. Baker, 14 Barb. 594 ; otherwise, the tender before suit was not essential to its support. Nellis v. Bradley, 1 Sandf. 560 ; Nichols v. Pinner, 18 N. Y. 312 ; Nichols v. Michael, 23 N. Y. 264 ; Stone v. Frost, 6 Lans. 440 ; 61 N. Y. 614. The only value the assignment apparently bad after the recovery of the judgment by the defendant against the vendors was in the right it gave the plaintiff to proceed againt them. But no such right in fact existed. The defendant’s action proceeded, and the result was bad, on the assumption that she owned the entire interest in the contract as vendee, and by the judgment she recovered the entire amount which had been paid upon it, with interest. That suit was prosecuted with the knowledge, acquiescence, and full consent of the plaintiff in this action. These facts are substantially alleged by the parties in their pleadings in the present action ; and the defendant charges that, as the consequence, the plaintiff is concluded by it, and entitled to one-third of the avails of the recovery, which the defendant avers she is ready to transfer to her. The plaintiff, therefore, is by the judgment concluded, as against the Fierles, from asserting any claim against them founded on the assignment by the defendant of such interest in the contract to her; and consequently the instrument of assignment had no value to require the tender of it before suit. It is not seen that the fact that the defendant, for the purpose of her action against the vendors, assumed to appropriate the entire interest in the contract with the consent of the plaintiff, has the effect to deny to her any remedy as against the defendant, arising out of the transaction of the assignment made to her.

The view taken, that the exclusion of the evidence offered by the plaintiff was error, leads to the conclusion that the judgment should be reversed, and a new trial granted; costs to abide the event. All concur.


author: BROWN, P. J.

text:
    John Petterson, App’lt, v. Gerard B. Van Wart, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 21, 1896.)

    Justice of the peace—Abridging term of office.
    Justices of the peace of the city of Brooklyn are “justices of inferior local courts,” within section 3, article 12 of Constitution, of 1895.
    Appeal from an order of the special term.
    James Troy and Jerry A. Wernberg, for app’lt; Horace Graves, for resp’t.
   BROWN, P. J.

—At the general election held in 1891, the appellant was elected to the office of justice of the peace for the Second judicial district of the city of Brooklyn. The term of his office was four years, and, by the provisions of the law then in force, would have expired on the 30th day of April, 1896. The respondent was, at the last general election, elected as the successor of the appellant. It is the contention of the respondent that the appellant’s term of office was abridged by section 3 of article 12 of the constitution, which took effect on January 1, 1895, and that, pursuant to the provisions of that instrument, the appellant’s term of office expired on the 31st day of December, 1895.

The section referred to, so far as it is applicable to the case before us is as follows:

“All elections of city officers including * * * judicial officers of inferior local courts elected in any city or part of a city shall be held on the Tuesday succeeding the first Monday in November in an odd numbered year and the tern; of every such officér shall expire at the end of an odd numbered year. * * * The terms of all such officers which under existing laws would ■expire in an even numbered year and before the end thereof are abridged so as to expire at the end of the preceding year. This section shall not apply * * * to any judicial officer, except , judges and justices of inferior local courts.”

The special term held that the provision quoted was applicable to the appellant, and this decision mnst clearly be affirmed unless the appellant is correct in his claim that he is not a judge or justice of an inferior local court. The appellant’s contention is that he is a justice of the peace ; that the constitution, as amended in 1869, provided for the election in cities of two distinct officers,— one, a “ justice of the peace,” and the other, a “judge or justice of an inferior court,” or, as they are sometimes designated, “ district court justices ”; that the distinction between those officers is ■clearly maintained in the constitution and laws of the state, and that the names are descriptive of particulars officers, and not of their functions; that the distinguishing feature of a justice of the peace as it has existed since the creation of the state, and as contemplated in the constitution, is the combination in the same individual of a civil and criminal jurisdiction ; that the act pursuant to which the appellant was elected (chapter 583, Laws 1888) designated the officer as a justice of the peace,” and conferred upon him that double jurisdiction which has always been the characteristic feature of that office. This argument has received our careful attention; but we are of the opinion that it is not applicable to the case before us. The particular designation given to the office in the statute is of very little importance in determining the question presented. As was said by Judge Peckham in People ex rel. Sinkler v. Terry, 108 N. Y. 1: 12 St. Rep. 773, “it is not the name'in such case, but the jurisdiction of the court, which is material; and, so long as that is inferior and local, the name given to the person who is to preside in it is not generally important.” That was said in reference to a statute creating a court of local jurisdiction, and authorizing the election of a j udicial officer to preside over it, who was designated as a “ justice of the •peace,” and to whom was given, within the designated locality, “the usual powers of justices of the peace of towns” in relation to crimes, and also in civil actions. Moreover, the constitution, in acticle 6, section 22, refers to justices of the peace as local judicial officers. It is in harmony with this provision to hold that a justice of the peace in a city is a judicial officer of a local court, and, in a popular sense, there would be no difficulty in deciding that a justice of the peace who presided in a district court in a city was a “ judge or justice of an inferior local court.” That a court of a justice of the peace is “an inferior court,” within the meaning of the constitution, is not a debatable question. Its inferiority among the other courts created by the constitution, and authorized to be created by the legislature, appears from its limited local jurisdiction, and its being a court not of record.

But, referring more particularly to the argument of the appellant’s counsel, we are of the opinion that, under the statutes applicable to the office held by the appellant, he is a “justice of an inferior local court,” and not a “justice of the peace,” within the meaning of those terms as used in the constitution. The office was created by chapter 125, Laws 1849. That act was entitled “An act to establish courts of civil and criminal jurisdiction in the city of Brooklyn.” Section 35 authorized the common council to divide the city into two or more districts, for each of which a justice of the peace was to be elected, who should hold his office for the term of four years from the 1st day of May next after his election, and whose jurisdiction within said city was declared to be that possessed by law by justices of the peace of towns. This act was amended by chapter 102, Laws 1850. The said justices were there declared to have a jurisdiction in civil actions like that exercised by the justices of the peace of the towns of the state. The character of the courts thus created was determined by the court of appeals in Geraty v. Reid, 78 N. Y. 64. They were there held to be local courts. This conclusion was based upon the provision of the constitution of 1846, which provided specifically for the election of justices of the peace in the towns of the state only, and authorized the legislature to create inferior local courts in cities. The amended judiciary article of the constitution adopted by the peopie at the general election in 1869 provided, not only for the election of justices of the peace in the towns of the state, but -also provided that justices of the peace and district-court justices should be elected in the different cities of the state, in such manner and with such powers and for such terms, respectively, as should be prescribed by law. Article 6, § 18. That provision was not self-executing, but required legislation to carry it into effect. Local courts existing at the adoption of that article continued until altered or abolished by the legislature. The local courts of justices of the peace thus continued in the city of Brooklyn, at least, until the enactment of chapter 583, Laws 1888; and ■there can be no question that up to the date of the passage of that act there were no justices of the peace in the city of Brooklyn in the sense claimed by the appellant, but that the officers created by the law of 1849 were justices of “ inferior local courts.”

We come, therefore, to the consideration of the law of 1888,' and the question presented depends upon whether that law abolished the old court, and created a new office of a different character, or whether it recognized and continued the local justices’ courts then existing in the city. We are of the opinion that the latter is the only construction that can be given to this law. The act is entitled ‘An act to revise and combine in a single act all existing special and local laws affecting public interests in the city of Brooklyn.” It does not in terms repeal the acts of 1849 and 1850, which I have referred to ; nor does it in terms create a new local court or judicial officer having jurisdiction in civil actions, nor does it abolish any. It provides (title 22, § 26),' that “ all persons * * * holding office in the city of Brooklyn whether elected or appointed shall continue to hold their respective offices until the expiration of the terms for which they were elected or appointed, except as otherwise provided for in the act; ” and that “there shall be no justice of the peace elected in the city of Brooklyn except in place of justices of the peace chosen at the general election in eighteen hundred and seventy-nine, and their successors” (title 21, § 9). It regulates the qualifications, elections, and jurisdiction of the justices to be elected, which in all respects were the same as those existing under the act of 1849. In various part's of the act the existence of the local courts is recognized. See title 3, §§ 6, 15; title 2, § 22; title 21, § 12. At the date of the passage of this act there were three justices in office presiding in and holding courts designated by the constitution as “inferior local courts,” and their terms of office did not expire until May 1, 1892, and their successors were not to be chosen until the annual election of 1891.

I have said the act of 1849, already referred to, was not in terms repealed by the act of 1888. I think it was still in force after the passage of that act, except so far as it has been modified by its provisions. Certainly, it is plain that, were it not for the passage of section 3 of article 12 of the constitution, the term of office of the appellant would not expire until April 30, 1896, and that express limitation we find only in the act of 1849. To that extent that law continued as a valid statute. It was clearly competent for the legislature, in the act of 1888, to have abolished the then ■ existing courts, and have provided for their successors. But it did nothing of that kind. It continued the local justices in office, and expressly provided that no justices of the peace should be elected in the city except as the successors of those chosen at the general election in 1879. Those officers, concededly, were not the same officers as were justices of the peace elected in the several towns of the state, but justices of a local court, and their successors subsequently chosen, of whom appellant is one, were judicial officers of the same character. The provisions of the act in reference to the police courts are in marked contrast to those relating to the justices’ courts which I have referred to. The existing police courts were abolished, and new criminal courts created in their place. Title 21, §§ 9, 10. The plain intent of the law was that the courts exercising jurisdiction in civil cases should continue, but those exercising criminal jurisdiction only should be abolished, and new tribunals substituted in their place.

It is our opinion, therefore, that the act of 1888 did not create a new civil court or a new civil judicial officer. It recognized the existence of local inferior courts of civil and criminal jurisdiction, and provided for their continuance by retaining the justices then in office, and providing for’the selection of their successors. The provisions of section 4 of title 21 which provides that “justices of the peace elected pursuant to this act shall have and exercise such jurisdiction and power and perform such duties as are designated by the Code of Criminal Procedure and the Code of Civil Procedure to be exercised and performed by justices of the peace ” would, in its literal meaning, confer a jurisdiction coextensive with the county of Kings. But such we do not think is its proper construction. The jurisdiction of a local court is confined to, and must be exercised in, the locality; and full effect is given to this expression by treating it as a declaration of the jurisdiction to be exercised within the city of Brooklyn. A similar provision in the act of 1850 was so construed by the court of appeals in Geraty v. Beid, supra. If it had been so declared with reference to a new officer' created by the act, it would tend to sustain the appellant’s contention; but, declared with reference to existing courts, it necessarily is limited in its application to the city. We have not overlooked the provision of section 22 of article 6 of the constitution, The term “justices of the peace,” there used, probably refers to such officers as are authorized to be elected in towns and cities. But the language of that section is not necessarily in conflict with the provisions of section 8, art. 12. The two provisions relate to the same subject, and must be read together. By the latter provision, the terms of some officers are extended, and others abridged; and the incumbents hold their office until the expiration of the respective terms thus fixed.

It is conceded by’ the counsel that this action is not the proper form of proceeding to determine the title to a office; bui, in view of the stipulation of the parties waiving all questions of form, of procedure, and the public importance of a speedy disposition of the question presented, we have examined the case and determined to affirm the order appealed from on the merits.

The order must be affirmed, with costs.

. All concur.