text:
    William J. Dempsey, Resp’t, v. The New York Central and Hudson River Railroad Company, App’lt.

      (Court of Appeals,

      Filed May 28, 1895.)

    1. Railroads—Passes.
    A person, appointed to the office of railroad policeman under § 58, chap. 565 of 1891, is a public officer within the meaning of § 5, art. 13 of the state Constitution, prohibiting a public officer from receiving for his own use and benefit a free pass from any corporation.
    3. Same.
    But, where a person, before the adoption of such Constitutional amendment, entered into a contract with the company, whereby he was to receive for his services a fixed salary and an annual pass for transportation to be used in his own or the company’s business, such pass is not a “free pass” within the meaning of said Constitutional provision.
    Appeal from an interlocutory judgment of the general term of the supreme court in the fourth judicial department, entered upon an order which affirmed an interlocutory judgment in favor of plaintiff, entered upon an order of the special term overruling a demurrer to the complaint.

      D. G. Griffin, for app’lt; P. W. Cullinan, for resp’t.

       Affirming 63 St. Rep. 686.

   Bartlett, J.

This is an appeal from an interlocutory judgment of the general term, fourth department, affirming an interlocutory judgment of the special term overruling a demurrer to the complaint.

The plaintiff seeks in this action to compel the defendant to issue to him for the year 1895 an annual pass upon its railroad in pursuance of a contract to that effect; also to recover damages suffered by reason of the breach of the contract.

The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action, its contention being that the plaintiff is a public officer and that it cannot lawfully perform such contract and issue the annual pass as it would be a violation of article 13, section 5 of the Constitution of the state of New York which went into effect January 1st, 1895, and prohibits a public officer from receiving for his own use or benefit any free pass from a corporation.

The plaintiff, in March, 1893, entered into a contract with defendant wherein it was mutually agreed that the plaintiff should perform services for the defendant in preventing depredations upon its property by thieves and trespassers, and that the plaintiff in the performance of such duty should at all times be ready to respond to any demands made upon him by the defendant; that as a consideration for such services the defendant was to pay plaintiff a salary of seventy-five dollars a month and deliver to him an annual pass in the usual form for transportation over the railroad of the Rome, Watertown & Ogdensbúrg Railroad Company and also over the railroaxl of the defendant to be used by plaintiff whether engaged in the business of the defendant or in his own private affairs.

In order to carry out this contract the plaintiff, in July, 1893, secured from the governor of the state an appointment to the office of railroad policeman under the Laws of 1890, chapter 565, section 58, known as the Railroad Law.

The act requires the appointee to take and subscribe the constitutional oath of office and file it with his commission in the office of the secretary of state, and the latter certifies the fact to the county clerk of each county where the policeman is authorized to act. The act further provides that the compensation of such policeman shall be paid by the corporation for which he is appointed, and the appointment shall cease at the pleasure of the corporation.

The plaintiff at once duly qualified as such policeman and entered upon the performance of the contract, and so continued until, the first day of January, 1895, up to which time both parties performed the same. On the first day of January, 1895, the defendant refused, on demand, to issue its annual pass to plaintiff for the reasons already stated, and this action was commenced.

There are two questions presented by this appeal, viz. : Is the plaintiff a public officer, and does the constitutional provision referred to prevent the defendant from issuing to him its annual pass-under the contract ?

The plaintiff was appointed by the governor of the state of New York; was required to take the constitutional oath, and was by-virtue of his appointment authorized to perform the duties of a peace officer or policeman in protecting the property of the defendant and of the general public in the custody of the defendant.

We think the manner of his appointment and the character of his duties constitute the plaintiff a public officer.

In Henly v. The Mayor of Lyme, 5 Bing. 91, Best, Ch. J., answering the question “ what constitutes a public officer,” says : “ In my opinion every one who is appointed to discharge a public duty and receive a compensation in whatever shape, from the crown or otherwise, is constituted a public officer.”

Chancellor Sanford, in case of Wood, 2 Cowen, 13, note at page 30, said: “ The terms ‘office and public trust ’ have no legal or technical meaning distinct from their ordinary signification An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public are interested.” People ex rel. Kelly v. Common Council 77 N. Y. 507.

In Rowland v. The Mayor, 83 N. Y. 376, Judge Danforth, in considering this subject, says: “ Whether we look into the dictionary of our language, the terms of politics, or the diction of common life, we find that whoever has a public charge or employment, or even a particular employment affecting the public, is said to hold or be in office.”

Assuming, then, that the plaintiff is a public officer, does the Constitution prevent his accepting from the defendant its annual pass as a part of the consideration to be paid him for his services under the contract ?

In considering this question it must be conceded that unless the

contractual relations of the parties distinguish this case from that of the ordinary public officer the issue of the annual pass would be illegal. This court has very recently held, in the case of a notary public, that while it was quite obvious that he was not in that class of public officers who should be prohibited from accepting privileges or favors from corporations, yet as the language of the Constitution was plain and comprehensive the courts, were bound to strictly enforce its provisions. The People v. Rathbone, 145 N. Y. 434; 65 St. Rep. 404.

What, then, are the precise provisions of the Constitution which are claimed to be violated by the strict performance of' this contract which was in force for nearly three years before the Constitution went into effect ?

“ No public officer, or person elected or appointed to a public office under the laws of this state, shall directly or indirectly ask, demand, accept, receive, or consent to receive, for his own use or benefit * * * any free pass * * * from any corporation, or make use of the same for himself or in conjunction with another.” (Canst, art. 13, section 5.)

It will be observed that a public officer is forbidden to receive and use a “free pass,” it being the obvious intention of the Constitution to prohibit the public officers of the state from receiving from corporations privileges or favors—in other words gifts—that might improperly influence them in the discharge of their official duties.

So, if this constitutional provision applies to the plaintiff as a public officer, it is due to the fact that he is accepting afree pass,” a gift, from the defendant. This court, more than thirty years ago, held that the holder of- a pass who had compensated the corporation therefor, could not be regarded in any just sense as a gratuitous passenger. Smith v. N. Y. C. R. R. Co., 24 N. Y. 227. In the case cited the holder of the pass was the owner of cattle traveling in charge of them under a contract, and paid no independent consideration for his own transportation ; he was killed on the journey by reason of.the negligence of the railroal company, and notwithstanding that the contract provided that “ the persons riding free to take charge of the stock, do so at their own risk of personal injury from whatever cause,” the court held the holder of the pass was not a gratuitous passenger in ariy just sense.

In the case at bar we have the plaintiff, a railroad policeman, traveling over the lines of the defendant in the discharge of his responsible duties in preventing depredations upon the property of the defendant and the public by thieves and trespassers, and receiving as compensation for his services seventy-five dollars a month and an annual pass, which he was at liberty to use not ■only in his official, but in his private business.

This is in no sense a “ free pass ” within the meaning of the Constitution, but, on the contrary, is a pass for which the plaintiff has paid a full consideration, and he cannot be regarded as a gratuitous passenger.

We have not overlooked the argument advanced by the learned «counsel for the appellant that such a construction will render it easy to evade this provision of the Constitution by contracts between corporations and public officers for private services by the latter, which shall be paid for in transportation.

We do not think any such danger exists as each case must be decided upon its own facts and the courts will see to it that the provisions of the Constitution are properly enforced.

The distinguishing feature in this case is that the plaintiff is a public officer whose only duty to the public is limited and defined by his contract with the defendant.

We are of opinion that this contract, which had been in force for nearly three years before' the present Constitution went into effect, is a lawful one, is not in conflict with the constitutional, provision under consideration and, that the plaintiff is entitled to recover.

The interlocutory judgment appealed from should be affirmed, with costs.

All concur, except Finch, J., taking no part.

Judgment affirmed.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    James Roarty, App’lt, v. Edward C. McDermott et al., Def’ts ; Frank J. Walgering, Resp’t.

      (Court of Appeals,

      Filed June 11, 1895.)

    1. Will—Construction.
    Where the testator appointed his widow as executrix with power to sell or mortgage any part of the estate for the purpose of carrying out the provisions of the will, or whenever, in her judgment, it may be for the best interest of the estate, applying the proceeds thereof to the benefit of the said estate, a mortgage executed by her as executrix is not void from the fact that she omitted to add her official title to her signature to the bond, where it was given to secure a loan to her, all of which had been used in paying off incumbrances upon the rest of the real estate.
    2. Same—Judgment.
    Where the widow, as executrix and individually, and the infant children were made parties to the an action to foreclose such mortgage, wherein the latter appeared by guardian, and the complaint set forth the power of sale and alleged that the mortgage was executed in pursuance of the power, the judgment therein is conclusive against all the defendants in the action that the mortgage was executed under and pursuant to the power, and is a valid lien.
    Appeal from order of the general term of the supreme court in the first j udicial department, which reversed an order of special term requiring F. J Walgering, the purchaser at a partition sale,, to complete his purchase and denied a motion by plaintiff for an order requiring her to do so.

      William H. Hamilton, for app’lt; Clemons J. Kracht, for resp’t.

       Affirming 66 St. Rep 828.

   O’Brien, J.

J.— This was an action to partition certain real property in the city of New York. The final judgment was executed by a sale of the property, under the direction of a referee, and Frank J. Walgering became the purchaser of a house and lot No. 441 West Forty-fifth street, for $15,800, he being the highest bidder at the sale.

Subsequently be refused to complete the purchase on the ground that the title tendered was not a marketable one. His objections to the title were overruled by the court at special term, and he was required to pay the balance of the purchase money upon tender of the referee’s deed. This order, however, was reversed by the general term. The plaintiff having appealed to this court, the question to be determined is whether, upon the facts appearing, there is such areasonable doubt concerning the marketable character of the title tendered as to warrant the court below in discharging the purchaser from his contract obligations.

It is conceded that Thomas ■ McConnell, who died August 24,, 1871, leaving a will, was seized of the premises in fee. His widow and executrix mortgaged the house and lot to Charles Devlin on the 21st of June, 1873. This mortgage was foreclosed by decree entered in the supreme court May 24, 1877, and a sale had thereunder, which is the basis of the title which was tendered. If the sale upon this judgment bound the three infant children of Thomas McConnell, then unquestionably the title tendered is good, and the purchaser is bond to perform his contract. °

In order to appreciate the question, it is necessary to get a clear view of the facts connected with the execution and foreclosure of this mortgage. By his will McConnell gave to his wife, after paying debts, all his real and personal estate during her natural life. This provision was, however, subject to an absolute gift to his eldest son of one-fourth of the estate, after deducting what the widow would be entitled to by way of dower, this one-fourth to be paid to him 'in cash on arriving at the age of twenty-one years. The remainder of the estate was given to the three younger children, after the death of the mother, and in such proportions as she might by will direct. His widow, Ann McConnell, was appointed executrix with the power to sell or mortgage any part of the estate “for the purpose of carrying out the provisions of my will, or whenever, in her judgment, it may be for the best interest of my estate, applying the proceeds thereof to the benefit of my said estate.” The will was proved and letters testamentary issued to the widow September 14, 1871. The real estate left under this will was all incumbered and in danger of being wasted or sacrificed unless means could be provided to pay obligations due or about to become due. On the 13th of June, 1872, the widow, acting under the power of sale in the will, conveyed, as executrix, to Charles Devlin, for the consideration of $9,000, a house and lot on Twenty-ninth street. She received from him $6,000 in cash, and the balance of $3,000 in a bond and mortgage executed to her as executrix. The $6,000 thus received was applied by her to paying off incumbrances on the estate, and thus far there cannot be the slighest question as to her power or as to the regularity of her proceedings.

About a year afterwards the eldest son became of age, and he having demanded the share of the estate left him by the will, it became necessary to raise more money. The widow arranged with Devlin to take back the Twenty-ninth street house, and to cancel his bond and morgaged in order to enable her to give a first mortgage thereon for $5,000, to raise that sum to pay to the son in discharge of his interest in the estate. Devlin, who seems to have been a friend of the family, assented to this, and deeded the house to the widow, and had his bond and mortgage canceled, and she subsequently raised the money on it by first mortgage, to pay off the son’s claim, and took from him a release of all his interest in the estate. But, though Devlin had reconveyed the title, he had not yet-been paid the $6,000 which he had advanced to the widow a year before, and which she had used for the benefit of the estate. That was not paid to him, but he elected to treat it as a loan to the executrix, and to secure its payment she gave to him a bond for that amount secured by a second mortgage on the Twenty-ninth street house and another second mortgage on the Forty-fifth street house in question. It is this last mortgage that we are now concerned with. That was executed to Devlin by the widow as executrix, and it recited the power in the will, and that the bond which accompanied it was executed by her as executrix, under the same power. It is now said that this mortgage was void, though executed by the widow as executrix, and this proposition is based upon the sole ground that the bond was not signed by her in her official capacity, and from this omission it is argued that the mortgage on the Forty-fifth street house was given to secure the widow’s personal bond or personal debt.

This position is sought to be re-enforced by the circumstance that the re-conveyance by Devlin, of the Twenty-ninth street house" was to the widow individually, and that the title vested in her. This assumption, even if material is not warranted by the facts. The widow could convey none of the real estate devised by her husband except through the exercise of the power in his will, and she could not convey to herself, since she could not be both seller and purchaser, and she could not accomplish indirectly what she cyuld not do directly. Therefore, she could not and did not acquire title to any of the land for her personal benefit, by conveying to Devlin under the power, and then taking a deed from him. Whatever form the transaction took, she must be deemed to have acted officially, and the property was in her hands for the benefit of the estate if the personal representative so elected to treat it.

There can be no doubt that the deed to Devlin was a good exercise of the power, and if the" parties subsequently desired to change an absolute conveyance into a mortgage, it was competent for them to do so. All that.was necessary was to cancel the bond and mortgage given by Devlin for the $3,000, and to stipulate in writing that the deed should stand as security for the $6,000 which he had advanced. But the necessities of the widow and the catate which she represented, were such that she required a more substantial advantage, and that was the postponement of Devlin’s claim to another lien which she desired to put upon the premises, and hence the conveyance to her. All this was but a method of changing a deed to a mortgage, and raising more money on the land. It thus became incumbered for all that it was worth, as subsequently shown by the foreclosure sale, so, in any view, the widow could derive no personal benefit from the conveyance to her of the Twenty-ninth street house. But, after all, the question whether the widow did or did not get the title to this house in her individual capacity is not very material. The real question is, whether the mortgage which she gave, as executrix, on the Forty-fifth street house, was given to secure her own debt, or for the benefit of the estate, under the power in the will. The fact that she omitted to add her official title to her signature to the bond is of no consequence. She might have omitted to give any bond, but the incontestable fact remains that it was given to secure the money which Devlin had advanced to her, a year before, every dollar of which she had used in paying off incumbrances upon the rest of the real estate. Thus the case stands upon the proofs appearing on this motion, and they are not contradicted.

It remains only to inquire whether any of these facts, having any material bearing on the question of title, were left open to contest by the judgment which Devlin subsequently obtained in the action to foreclose his mortgage.

Ho one claims that there is any defect in that judgment except the present purchaser. He does not suggest any possible claim or right existing in behalf of any one, except the three infant children, the residuary devisees of Thomas McConnell. Whether these children, or any of them, or any' of their descendants, are still alive, does not appear, as the only affidavit in opposition to this motion was made by the attorney for the purchaser, stating wdiat he claims to be defects in the judgment as it appears of record. The widow, as executrix and individually, was made a defendant in the foreclosure suit. So were the three children, who were represented by guardian, and interposed the usual answer, putting in issue the facts stated in the complaint. The referee reported that all the facts stated in the complaint were established, and the judgment which followed in terms adjudges that the defendants and all persons claiming through or under them be forever barred and foreclosed from all right or claim in or to the premises or any part thereof.

It is plain, therefore, that if the complaint was broad enough in its scope to embrace the facts stated, that they must be deemed to be determined by the judgment, and not open to further contest.

It alleges that Ann McConnell, the widow, gave her bond to Devlin for $6,000, to secure the payment of that sum, with interest, at the times stated. That default had been made' in the payment of the principal, which became due June 21, 1876, less fifty dollars paid thereon. It also alleges the execution and delivery by the widow, as executrix, to Devlin, of a mortgage on the Forty-fifth street house, to secure the payment of the bond, and in connection with this allegation, the following facts are stated: (1) That the house so mortgaged was part of the real estate of which McConnell died seized; (2) that he died August 24, 1871, leaving a will which was duly proved; that letters had been granted to the widow, and that the will contained the power to sell or mortgage; (3) that the mortgage was executed in pursuanee of that power and authority; (4) that the three infant children of the deceased, giving their names, have or claim to have some interest in the premises, which, however, was subsequent to the mortgage and subordinate to it.

The statement that the mortgage was executed under and in pursuance of the power was, in substance and legal effect, equivalent to an allegation that it was given to secure a debt for the benefit of the estate, or to raise money for that purpose. If it was given to secure the personal debt of Ann McConnell, it was not given under or in pursuance of the power, but contrary to its terms and manifest purpose. It was, therefore, open to the children, under these pleadings, to show, if they could, what this purchaser now urges, that the mortgage was given to secure the personal debt of the widow, and hence the judgment must be deemed to have conclusively determined as against all the defendants in the action, or their privies, that the mortgage was executed under and pursuant to the power, and was a valid lien upon the Forty-fifth street house. It is not now open to any of the children, or any one claiming under them, to assert what is obviously untrue, in fact, that the mortgage was given to secure the personal debt of the executrix. That question was involved in the issues in the foreclosure suit, and has been forever set at rest by the judgment.

The order of the general term should be reversed, and that of the special term affirmed, with costs.

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

Ordered accordingly.


author: Haight, J.

text:
    The People ex rel. The Manhattan Railway Company, App’lt and Resp’t, v. Edward P. Barker et al., as Commissioners, etc., App’lts and Resp’ts.

      (Court of Appeals,

      Filed June 11, 1895.)

    1. Taxes—Assessment—Corporation.
    The actual value of the capital stock of a corporation, and not the market value of share stock, is to be assessed.
    2. Same—Presumption.
    In the absence of evidence,to the contrary, the commissioners are presumed to have done their duty.
    3. Same—Commissioners.
    The commissioners are not bound by statements that are contradicted and which they disbelieve, where good reasons exist for such disbelief.
    4. Same—Personal property.
    More latitude is given to assessors in ascertaining and determining the amount and value of personal property than is permitted in assessing real property.
    5. Same—Presumption.
    Where the earnings of a corporation are such as to enable the company to pay its running expenses, necessary repairs, interest upon its indebtedness and declare a dividendo! six per cent, and still have a surplus, itlmay be assumed that its capital slack remains unimpaired, and that there are assets over and above sufficient to pay its outstanding indebtedness.
    6. Same—Assessable personal property.
    The assessable personal property of a corporation can be determined by adding to the capital stock issued the surplus on hand not invested in the real and personal property of the company and deducting therefrom the assessable value of the real estate, the stock in other companies and the ten per cent, allowed by statute.
    V. Appeal—Evidence.
    The admissions of parties, either oral or written, cannot be received by a court on review for the purpose of reversing the findings of the trial court.
    8. Certiorari—Relief.
    Upon the return of a writ of certiorari to review an assessment, the court has power to order the assessment, if illegal, to be stricken from the roll, or, if erroneous or unequal, to order a re-assessment of the property, etc.
    Cross-appeals from order of the general term of the supreme court in the first judicial department, which reversed an order of special term vacating and setting aside an assessment of the relator’s capital stock for taxation as personal property for the 3'ear 1894, and affirmed the proceedings of the commissioners of taxes and assessments.

      Julien T. Davies, John F. Dillon and Herbert Barry for relator, app’lt and resp’t; David J. Dean, for resp’ts.
   Haight, J.

On the 8th day of January, 1894, the commissioners of taxes and assessments of the city of Hew York assessed the relator, the Manhattan Bail way Company, for its personal property at the sum of $30,000,000. In the month of April thereafter the relator filed a statement upon one of the blank forms furnished by the department of taxes and assessments showing its condition an the second Monday of January, 1894. An examination of the treasurer of the company was thereupon had by the commissioners, who then reduced the assessment and fixed it at the sum of $17,860,712. The relator thereupon procured a writ of certiorari directed to the tax commissioners, commanding them to make return of the proceedings had before them to the special term of the supreme court in order that a review might be had before that court. Upon the returns so made by the commissioners a hearing was had by the court in Hovember, 1894, upon which an order was entered vacating the assessment. Upon an appeal to the general term this order was reversed and the assessment as made reinstated. The statement furnished by the relator to the commissioners of taxes and assessments is substantially as follows :

Total gross assets............................. $11,071,315

Capital stock actually paid in or secured to be paid

in................................... 29,925,200

Amount of surplus earnings............. 5,326,432

Bate of dividend for last year or last annual dividend, 6 per cení.

Indebtedness in detail as follows:

Mortgage bonds outstanding, Manhattan Bailway

Co........................................ $11,663,035

Mortgage bonds outstanding, N. Y. El. R. R. Co.. 8,500,000

Debenture bonds outstanding, N. Y. El. R. R. Co.. 1,000,000

Total............................. $21,163,035

Assessed value of real estate, N. Y. Co. structure.. $4,128.000

Structure, formerly Suburban structure.......... 1,101,700

In fee, as per statement........................ 1,946,000

Leasehold, as per statement..................... 62,000

In fee, Suburban............. 85,500

Total............................. $7,323,200

Bolling stock................................ $1,983,739

Supplies, tools, &c............................ 381,538

Cash........................................ ' 1,382,838

Total............................. $3,748,115

Amount invested in the capital stock of the Metropolitan Elevated Bailroad Co. which is taxed upon its capital............................. $7,075,200

Amount invested in IT. S. securities, 10 per cent, of capital ($29,925,200)........................ 2,992,520

It also appears from the statement that the mortgage and debenture bonds of the N. Y. El. B. B. Co. are direct obligations of the Manhattan Company by reason of the merger of the N. Y. El. B. E. Co. into the Manhattan Co., and that no portion of the indebtedness mentioned was incurred in the purchase of non-taxable property or securities for the purpose of evading taxation. In the testimony given by the treasurer of the Manhattan Co. before the commissioners it is stated that “The present authorized capital stock of the Manhattan Bailroad Company is $30,000,000, and that $29,925,200 has been issued ; of that amount $7,800,000 has been issued to the shareholders of the New York Co. merging that company with the Manhattan. At present and since the second Monday of January, 1894, the merger of the Metropolitan Company has been completed and $7,150,000 of the capital of $30,000-000, has been issued to the Metropolitan Company. When this return was made a few shares of the Metrapolitan were outstanding not exchanged, and for that reason the return was made somewhat short of $30,000,000 as the actual capital stock. The capital stock of the Manhattan Co. to the extent of $4,000,000 has been issued to take in the Suburban Co. and was used in connection with the merger of that company. The original capital stock of the Manhattan was $13,000,000. When this capital was increased to $30,000,000 for the purpose of completing the merger of the New York and Metropolitan Companies with the Manhattan the agreement of the merger provided that capital stock of the Manhattan should be issued to the holders of this $13,000,000 of ■stock at 85 per cent or that capital stock in par value of $11,050,000 has been issued to the old stockholders of the Manhattan Co. who held the original $13,000,000. That $13,000,000 was originally issued in connection with the leasing to the Manhattan of theN. Y. and Metropolitan Companies and the stockholders of those two companies respectively received $6,500,000 of the capital stock of the Manhattan Co. as the consideration for the making of these leases.” It further appears from his testimony that the $5,326,432 entered in the statement as the amount of surplus earnings was the amount of the earnings of the company over and above the dividends. That such surplus appeared upon the books of the company, but was not in fact now existing for the reason that it had been expended and was now represented by .the real and personal property included in the statement, with the exception of the $1,382,838 cash on hand. The commissioners in their return state that the method by which they made their assessment was as follows : “At the time that we fixed the assessment against the relator at the sum of $17,860,712 we had before us and considered the statement filed with us by the above-named relator upon its application for a reduction and cancellation of an assessment against it for the year 1893, and we were further advised and informed by the records in our office touching the proceedings had upon the application by this relator for a reduction and cancellation of an assessment against it for the year 1893 that the relator had then admitted its liability to and assented to an assessment against its personal property in the sum of $12,529,915, and having compared the statement of the relator filed in 1893 with the statement filed by the relator upon its application for a reduction and cancellation of the assessment against it for the year 1894, we concluded that the assessment against it for the year 1894 in the sum of $17,860,712 would be in all respects just and fair; that accordingly we fixed the assessment for the year 1894 at that figure. ”

In 1893 some controversy arose over the amount of the assessment of the relator’s personal property, which resulted in Mr, Davies, the attorney for the relator, addressing a letter to the commissioners, in which he states that Mr. Gould had authorized him to say that if the assessment did not exceed $12,500,000 they would acquiesce. The statement made in 1893 has some slight variations from that made in 1894, but is substantially the same with the exception that the amount of surpl us reported in 1894 is nearly $1,000,000 in excess of that of 1893, so that if the commissioners in fixing the amount of the assessment for 1894 acted upon the statement made in 1893 as compared with that made in 1894, and the letter addressed to them by Mr. Davies, they could not well have increased the assessment in 1894 more than $1,000,000 or thereabouts, the amount of the increase of the surplus earnings of the company. This would have made in round numbers $13,500,000. It was, however, stated upon the argument by their counsel that a very different method was adopted in reaching the amount of the assessment; that in the statement furnished to the commissioners the assessed value of the real estate had been given at $7,323,200, and no mention had been made as to its actual value,, and that the commissioners were, therefore, left to judge for themselves as to the actual value, and that was arrived at in the following manner:

Capital stock............................... $29,925,200

Bonded indebtedness..................... 21,163,035

Surplus..................................... 5,326,432

Gross assets............

Deductions: Assessed value of real estate..

Stock in other companies......

Mortgage indebtedness........

10 per cent, of the capital stock

......... $56,414,667

$7,323,200

7,075,200

21,163,035

2,992,520

Total $38,553,955 38,553,955

which, deducted from gross assets, leaves amount assessable................................. $17,860,712

The actual value of the real estate as assessed is thus ascertained from the relator’s statement by deducting from the gross assets............... $56,414,667

The amount of its personal property, consisting of rolling stock, cash, tools, etc ................... $3,748,315

Stock in other companies.......... 7,075,200

-............ $10,823,315

leaving as the actual value of the real estate...... $45,591,352

We cannot adopt or approve of this method of ascertaining the value of the relator’s personal property or of the actual valúe of its real estate. The method is erroneous and incorrect for various reasons. Under the statute the capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll or shall have been exempted by law, together with its surplus profits or reserve funds exceeding ten per cent, of its capital after deducting the assessed value of its real estate and of shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under the law's of this state, shall be assessed at its actual value and taxed in the same manner as other personal and real estate of the county. (Laws of 1857, chap. 456, section 3.) It is the actual value of its capital stock and not the market value of its share stock that is to be assessed; in other words, it is its actual tangible personal property and not its ‘franchises. Other statutes provide for the taxing of its real estate and franchises. People ex rel The Union Trust Co. v. Coleman, 126 N. Y. 433; 38 St. Rep. 237. The real property of the relator is located in the city of New York under the eye and subject to the inspection of the commissioners. Under the Revised Statutes they are required to assess it at its just and full value as they would appraise the same in payment of a just debt due from a solvent debtor. (1 R. S. 393, section 17 ) And under the Consolidation Act for the city, of New York it shall be assessed “at the sum for which such property under ordinary circumstances would sell.” The value of the property is -■determined by what it can be bought and sold for, and there can be no doubt but that these various expressions used in the statutes all are intended to mean the actual value of the property. The commissioners are sworn officers, and as such, in absence of evidence to the contrary, are presumed to have done their duty. They have assessed the real estate at $7,323,200, and yet, under the method presented by their counsel for ascertaining the value of the relator’s personal property, they now estimate the actual value of the real estate to be $45,591,352. We are aware that it is generally understood that in many localities throughout the state, assessors, in violation of their duties, assess the real estate in their localities at a sum less than its actual value, but in the absence of evidence that this has been done by the commissioners of taxes and assessments in the city of New York, we cannot assume that they have so transgressed for the purpose of approving of their work in this case. Real property cannot well be covered up or hid from view. Its value can readily be ascertained. It should be assessed upon estimates directly made as to its value and not upon presumptions figured upon intricate theories. Again, the method presented by respondents’ counsel involves the presumption that the indebtedness of the corporation represents property to the amount of such indebtedness in addition to that represented by its capital stock. This presumption cannot be indulged. The indebtedness may have been incurred for operating expenses, wages of employees and material used up. It may represent property worn out, decayed or burned up during the existence of the corporation. Presumptions that arise from the earnings of a corporation and those that arise from its indebtedness are quite different. Too many of the railroads of the country are in the hands of receivers to warrant a judicial presumption that the bonded or other indebtedness of each road represents its actual tangible property in addition to that represented by its ■capital stock.

And again, the method proposed necessarily includes the value •of the franchises possessed by the corporation which, as we have seen, cannot properly be included in the assessment under view.

Whilst the assessment made cannot be sustained, we think that the relator ought not to escape a proper assessment for its property. It is true that the commissioners are not free to capriciously disregard the evidence and emancipate themselves from all restrictions and rules, however fundamental; they are not bound by statements that are contradicted and which they disbelieve, where good reasons exist for such disbelief. The People ex rel. Union Trust Co. v. Coleman, supra; The People ex rel. Edison El. Co. v. Barker, 139 N. Y. 55-67; 54 St. Rep. 444; The People ex rel. Gen. El. Co. v. Barker, 141 N. Y. 251; 56 St. Rep. 823 ; The People ex rel. Man. F. Ins. Co v. The Comrs. of Taxes, 76 N. Y. 64; People ex rel. Westchester F. Ins. Co. v. Davenport, 91 id. 574. The letter of Mr. Davies in 1893 to the effect that if the assessment was made at $12,500,000 the company would acquiesce, having been written for the purpose of a settlement, and an adjustment of the controversy then existing, could not properly be adopted by the commissioners as the basis of an assessment for subsequent years. Still, at the same time, it might well create a suspicion as to the truthfulness of a statement made the year following, showing that so far as the property of the corporation was concerned, aside-from its franchises, it was insolvent to the extent of $3,000,000. Aside from this, there exists the fact that the net earnings of the-corporation for the year were such as to enable it to pay the interest upon its indebtedness and a dividend upon its thirty millions of capital stock of six per cent, and still have a surplus bordering upon a million dollars. These facts fully justified the commissioners in discrediting the statement made to them by the relator; Personal property, unlike real property, may not always be readily found and assessments thereof by assessors are often attended with many difficulties. For these reasons more latitude necessarily should be given assessors in ascertaining and determining the amount and value of personal property than should be permitted in assessing real property. Presumptions to-some extent should be indulged. For this reason the earnings of a corporation may be considered by the assessors, and where they are such as to enable the company to pay its running-expenses, necessary repairs, interest upon its indebtedness and declare a dividend of six per cent, and still have a surplus, it may be assumed that its capital stock remains unimpaired and that, there are assets over and above sufficient to pay its outstanding indebtedness. People ex rel. The Equitable Gas Light Co. v. Barker, 144 N. Y. 94; 63 St. Rep. 33. This method, however, may include the value of the franchises, which should be deducted in order to determine the amount of property liable for assessment. Such value has not been given, and we are consequently left without, the evidence at hand upon which to determine the actual value of the personal property under the presumptions arising from the facts mentioned. It may turn out that the capital stock represents-property to the amount thereof in addition to the franchises; that, the stock issued to the stockholders of the New York, Metropolitan and Suburban companies represented money actually paid by the stockholders of those companies for real estate and the building, construction and equipments .of the elevated railroads thereon. Should such be the case, the presumption from the earnings of the company would be permissible, that the capital stock remained unimpaired, representing property over and above the franchises, to the amount thereof, and in addition, sufficient 'to pay the outstanding indebtedness. Upon this basis the assessable personal property could be determined by adding to the capital stock issued the surplus still on hand not invested in the real and personal property of the company and deducting therefrom the assessable-value of the real estate, the stock in other companies and the ten per cent, allowed by statute. The result would be as follows:

Capital stock............. $29,925,200

Surplus on hand in cash........................ 1,382,838

Total.................................... $31,308,038

Eeal estate......................... $7,328,200

Stock in other companies............. 7,075,200

10 per cent, of capital................ 2,992,520

-- 17,390,92»

Amount assessable......................... $13,917,118

Upon the argument the respondents’ counsel offered to read in evidence the report of the officers of the Manhattan Go. to the railroad commission in 1894. • This report would doubtless be competent evidence for the commissioners or the special term to> receive and act upon. It might be treated as admissions made by the relator. The general term sometimes receive record evidence in aid of judgments under review, but we are aware of no case in which admissions of parties, either oral or written, have been received by a court on review for the purpose of reversing the findings of the trial court. Such practice would manifestly be unjust.. It would deprive the party making the statement of all oppor-' tunity to explain, modify or correct the statement. We consequently are of the opinion that we ought not at this time to consider the report or to treat it as properly before us.

The general term was of the opinion that this assessment could be sustained upon the authority of The People ex rel. The Equitable Gas Light Co v. Barker, 144 N. Y. 94; 63 St. Rep. 33. The difficulty is that in that case the value of the patents and franchises was found to be $500,000, whilst in this case we have no value given of the franchises or facts appearing from which such value can be determined.

The statute provides that upon the return of a writ of certiorari to review an assessment the court shall have power to order the assessment, if illegal, to be stricken from the roll, or, if erroneous or unequal, to order a re-assessment of the property, etc. (Laws of 1880, ch. 269, § 4.) The assessment in this case is not illegal, it is merely erroneous. A re-assessment should, therefore, be ordered.

The order of the general term should be reversed and that of the special term modified so as to vacate the assessment made' and order a re-assessment by the commissioners, without costs ■ of this, appeal to either party.

All concur, except O’Brien, J., not voting.

Ordered accordingly.


author: Giegerich, J.

text:
    Julius Stern et al., Resp’ts, v. Leo Kareski et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    False representations—Proof.
    The essential constituents of an action to recover damages for false and fraudulent representations were held to be amply supported by the evidence in this case.
    Appeal from a judgment in favor of plaintiffs, rendered by the justice without a jury.

      Samuel J. Frankenstein, for app’lts; Robert Greenthal, for resp’ts.
   Giegerich, J.

This action was brought to recover damages for false and fraudulent representations. The answer was a general denial. The pleadings were oral. The plaintiffs are copartners doing business under the firm name of Stern & Saalberg, and the defendants were, during the time or times of the transactions hereinafter referred to, copartners in business. From the testimony adduced on the part of the plaintiffs it appears that before the sale of certain goods, consisting of confectionery, by the plaintiffs to the defendants, the defendant Kareski represented to Stern, one of the plaintiffs, that the defendants did not owe over $700; that they were in no trouble whatsoever; that there was no mortgage upon their property, nor had they given any bill of sale, and that there would not be any such given within a short time. Such defendant further showed to Stern,a bill that he had, in order to confirm his statement that the defendants were “ perfectly sound and responsible.” It further appeared that, but for these representations, which the plaintiffs believed, and upon which they relied, they 'would not on the same day have sold the goods in question, as they did, on a credit of ten days; that when the claim became due the defendant Falk stated to Saalberg, one of the plaintiffs, that the defendants had disposed of their business, and were only working in their late place of business on a salary; that they had to sell the business, because they owed more than $700, and were in trouble. After the plaintiffs had rested, the defendants moved for a dismissal of the complaint on the grounds “ that the plaintiffs had failed to prove facts sufficient to constitute a cause of action, in that they have failed to prove that the representations which the defendants are alleged to have made were false at the time they made them, and were known to them to be false at the time they made them, and that there has been no fraud proven ; " also upon the same grounds for a direction of a verdict in their favor; which motions were denied, and renewed upon the close of the entire case, and the defendants excepted.

The essential constituents of an action to recover damages for false and fraudulent representations, see Steinam v. Bell, 7 Misc. Rep. 318; 57 St. Rep. 462, are amply supported by the evidence in this case, and therefore said motions were, in our opinion, properly overruled. The representations were not denied by the defendants, and it appears conclusively from the cross-examination of the defendant Falk, who was the only witness called for the defense, that the amount of the defendants’ debts was over $700; that they sold their business to one Frankel for $400, and that a few days thereafter the latter sold the same to the wife of the defendant Falk. This testimony, in our opinion, effectually disposes of the contention of the defendants that the scienter had not been proved. The appellants’ argument and brief upon this appeal are founded upon a misconception of the nature of the action, and therefore the authorities cited by them in support of various propositions are inapplicable. The defendants’ exceptions taken to the rulings on the trial appear to be without merit, .and we think the judgment should be affirmed, with costs.


author: Bischoff, J.

text:
    Nathan Sonenberg, Resp’t, v. Meyer Levy, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Appeal—Inquest.
    Common Pleas will, on appeal, review the evidence, given upon an inquest taken in a district court.
    3. Damages—Conversion.
    In an action of conversion, the value of the chattels at the time of the trial furnishes no basis for a recovery, where they are not shown to be in nature fluctuating as to market value, and no element of malice appears in the case.
    Appeal from a judgment, rendered in favor of plaintiff on defendant’s default after inquest.

      Abraham T. Elkus, for app’lt; A. H. Berrick, for resp’t.
   Bischoff, J.

It is the province of this court to review the evidence given upon an inquest taken in a district court, and to reverse the judgment should evidence be insufficient to establish a prima facie case in support of the respondent’s recovery. Jones v. Pridham, 3 E. D. Smith, 155 ; Howard v. Brown, 2 E. D. Smith, 247 ; Vorzimer v. Shapiro, 6 Misc. Rep. 143; 55 St. Rep. 693; Jacobs v. Zellner, 9 Misc. Rep. 455; 61 St. Rep. 104. In this case plaintiff, the assignee of the cause of action, recovered a judgment for §75, apparently the supposed value of certain chattels alleged to have been converted by defendant; but no proper proof of this value appears from the record, and the judgment, therefore, is not to be sustained.

The cause of action for conversion, upon which plaintiff undoubtedly could sue as assignee, Baumann v. Jefferson, 4 Misc. Rep. 147; 53 St. Rep. 116, was predicated of defendant’s failure to return upon demand certain household furniture belonging to plaintiff’s assignor, the original possession of which by defendant was in no way tortious. Upon the question of damages, the only proof adduced was the testimony of plaintiff’s witness given in answer to the question, to the value of the chattels,“What is their value to-day?” The proof thus received fails to afford a basis for the'recovery below. The property was not shown to be in nature fluctuating as to market value, and no element of malice appeared in the case; thus there was nothing to justify a departure from the well-established rule that the recovery should be limited to the value of the chattel at the date of the conversion, with interest. Wehle v. Haviland, 69 N. Y. 448 ; 5 Am. & Eng. Enc. Law, p. 40, and cases cited. We are not to assume, in the absence of proof, that the value at the date of the trial, as given, was not greater than at the date of plaintiff’s demand, which, by reason of various conceivable causes, it might actually have become. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. Restitution ordered of the amount paid by the appellant in satisfaction of the judgment here reversed.


text:
    Joshua Gregg et al., Resp’ts, v. Jacob F. Wittemann et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Chattel mortgage—Possession.
    Where a chattel mortgage does not in express terms restrict the mortgagor’s right to transfer the possession of the chattels and provides that, until default in payment, he shall have the use and possession thereof, he may lawfully transfer his possession, and the mortgagee’s only recourse is against the person in possession at the time his right to possession accrues.
    Appeal from a judgment in favor of plaintiffs, rendered by the justice without a jury.

      Louis B. Haslrouck, for app’lt Wittemann; Benjamin Tuska, for app’lt Kannenberg; Wager & Acker, for resp’ts.
   Bischoff, J.

The action was for the conversion of certain furniture, and upon the trial the plaintiffs asserted their right to possession as mortgagees under a mortgage executed by one Bartram to secure the payment of the promissory note of one Merz. The chattels in question had been previously sold by the plaintiffs to Merz, and, with others, were contained in the latter’s place of business. Bartram’s title, and, as incident, the validity of the plaintiffs’ claim in this action, was dependent upon an alleged oral transfer of the chattels to him, from Merz, without consideration. Subsequent to Bartram’s mortgage to the plaintiffs, Merz executed and delivered a bill of sale, covering the entire contents of his place of business, to the defendants Wittemann, as a means of providing for the payment of the vendor’s precedent debt to the vendees. The defendant Wittemann had employed one Alexander to collect their claim against Merz, and the bill of sale to them was of Alexander’s procurement. At Alexander’s instance the defendants Wittemann transferred all their rights under the bill of sale to the defendant Kannenberg and employed the latter to sell the chattels at auction. The defendant Kannenberg took possession of the chattels, including the furniture mortgaged to the plaintiffs, sold them, and accounted to the defendants Wittemann for the proceeds of such sale. When the mortgage debt matured,—which was after the .sale last above alluded to,— the plaintiffs demanded the furniture from the defendants Wittemann and Kannenberg, and, failing to secure the delivery of the chattels, had judgment against the said defendants for damages, in this action, from which judgment the defendants have appealed.

The recovery below is not to be supported. The plaintiffs’ right to the possession of the mortgaged chattels did not accrue until the mortgage debt matured, and default was made in the payment thereof. Until then, therefore, the defendants’ possession of the chattels was not tortious, in so far as the plaintiffs were concerned. But before the accrument of the plaintiffs’ right to possession the.defendants parted with their possession to the purchasers of the chattels. Hence conversion was not predicable of the defendants’ failure to surrender the mortgaged chattels to the plaintiffs. Where the mortgage does not in express terms restrict the mortgagor’s right to remove or transfer the possession of the mortgaged chattels, Russell v. Butterfield, 21 Wend. 300, and provides, as was here the case, that until default in the payment of the mortgage debt the mortgagor shall have the use and possession of the chattels, the latter has an interest which is capable of transfer by levy and sale under execution. He may therefore lawfully transfer his possession to others, who in turn may divest themselves of such possession by further transfer, the mortgagee’s only recourse for surrender of the chattels to himself being against the person or persons'in possession at the time when the farmer’s right to possession accrued. 6 Lawson, Rights, Rem. & Prac. p. 5018, section 3086; Hathaway v. Brayman, 42 N. Y. 322.

Another question would have been presented if it had appeared upon the trial that the mortgagor, and those of the defendants who derived possession of the mortgaged chattels from or under him, disposed of the chattels in hostility to the plaintiffs’ rights as mortgagees. Herm. Chat. Mortg. section 137 ; Hale v. Bank, 64 N. Y. 550, 556 ; Cooley, Torts (2d Ed. p. 527, etc). The action, however, was not tried upon, any such theory, and from the evidence in the record it is not to be determined that the mortgaged chattels, at the time of the maturity of the mortgage debt, were not available, and accessible to the plaintiffs, in the possession of the purchasers.

A further' objection is fatal to the recovery. In that which has been said we have assumed the mortgagor’s default in the payment of the mortgage debt. The fact of the default, however, does not appear from the evidence, and cannot be presumed. Lent v. Railroad Co., 130 N. Y. 504; 42 St. Rep. 592. Hence the plaintiffs’ right to the possession of the mortgaged chattels at the time of the demand therefor upon the defendants was not apparent upon the trial, and, failing of the right to possession, no conversion was shown.

The judgment should be reversed, and a new trial ordered, with costs of this appeal to the appellants severally, to abide the event. There should be restitution of the costs below, paid by the appellant to perfect their appeal. •

All concur.


text:
    John Stewart, App’lt, v. Max Stern et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Appeal—Conflicting evidence.
    A judgment, rendered by a justice on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment in. favor of defendants, rendered by the justice without a jury.

      Howard A. Sperry, for app’lt; Edwin D. Taliaferro, for resp’ts.
   Giegerich, J.

The plaintiff’s appeal is based upon the erroneous theory that there was a sale and delivery to him on credit of the chattels sought to be replevied. The evidence, viewed in the most favorable light to the appellant, shows but a sale, on condition that the plaintiff would bring a truck, and a check for the purchase price of the same, and that he did return on the same day, and make tender by check for the amount thereof, but which was refused. The evidence on the part of the defendants, however, shows that there' was a sale of the chattels in question, conditioned that the plaintiff would immediately take away the goods, and pay for the same, which condition he failed to comply with ,- and upon his failure to do so the chattels were sold to the defendants. The justice credited the defendants’ version of the transaction, and we see no reason for disturbing his determination of the facts in the absence of the elements which are requisite to review the same. Lynes v. Hickey, 4 Misc. Rep. 522 ; 54 St. Rep. 120; Weiss v. Strauss, 39 St. Rep. 78; Empire State Type Founding Co. v. Grant, 114 N. Y. 40; 22 St. Rep. 302, cited by both sides, has no application, because there was no delivery in this case. For these reasons the judgment should be affirmed, with costs.


text:
    Bernard Henrich, App’lt, v. Peter Murray, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Appeal—Cokemctinu evidence.
    A judgment, rendered by a justice on conflicting evidence, where there is sufficient evidence to sustain it, will not be disturbed on appeal.
    Appeal from a judgment in favor of defendant, rendered by a justice without a jury.

      Sproull, Harner & Sproull, for app’lt; Jacob Levi, for resp’t.
   Giegerich, J.

This action was brought to recover a balance alleged to be due for work, labor, and services in taking down the buildings known as Nos. 64 to 70 Jackson street, in the city of New York. The complaint in writing alleges that between the 3d day of May, 1894, and the 31st day of May, 1894, plaintiff, at the request of defendant, performed certain work, labor, and services-in taking down the buildings in question; that the defendant promised and agreed to pay him therefor the sum of $105; and that no part thereof has been paid, except the sum of $50, leaving a balance of $55, for which judgment is demanded. Upon the trial the complaint was amended by adding thereto, “ Materials-inside the buildings, except the brick.” The defendant, by his answer, admitted that he entered into an agreement with the plaintiff wherein and whereby the latter was to render and perform certain work, labor, and services, for which he was to receive the sum of $105, and that before the completion of the work required to be done by said contract the defendant paid to the plaintiff, on account thereof, the sum of $50. For a further and separate and counter claim the defendant alleged that at or about the time referred to in the complaint the parties litigant contracted that the plaintiff should remove the.buildings referred to, and receive therefor as compensation the sum of $105, together with the building materials used therein, save and except the brick; that, with respect to said brick, the plaintiff agreed to remove the same in a careful, clean, and workmanlike manner, to clean said brick, and to pile the same in front of the premises in question ; that the plaintiff failed to remove the brick in the manner required by-said contract, and that by reason of his carelessness and negligence therein the defendant lost 35,000 bricks, and suffered and' sustained other damage, aggregating in all the sum of $90. As to plaintiff’s actual negligence in removing the brick, and as to the amount of brick damaged by reason thereof, the testimony was in material conflict; but sufficient evidence appears to support the justice’s determination in favor of the defendant, allowing a set-off in extinguishment of plaintiff’s claim, which was admitted by the failure of the defendant to deny that portion of the plaintiff’s complaint. The defendant, when called as a witness, testified that to his own knowledge about 30,000 bricks were thus lost to him, and, computing their value in accordance with the testimony adduced in that regard, the justice was well authorized to find that the amount of defendant’s damage availed as a set off to the claim in suit. The defendant’s exceptions taken to the rulings on the trial are, in our opinion, without merit; and for the foregoing reasons we think the judgment should be affirmed, with costs.


author: Pryor, J. Daly, Ch. J.

text:
    Emil Jung, App’lt, v. William Kueffel et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Appeal—Reargüment.
    After the judgment has been affirmed by the court of appeals, the court of common pleas will not grant a reargument.
    Motion for reargument.

      Leopold Leo, for motion; Smith, Bowman & Close, opposed.
   Pryor, J.

On the affirmance of the judgment by the general term the plaintiff had an option either to move a reargument or go to the court of appeals. Doubtless he would have taken the former step had he supposed the court anywise remiss in the consideration of the case. He chose rather to appeal from the judgment, and so stood upon his allegations of error. Is it possible that a suitor may have recourse to both these alternative remedies; that is, first take the chance of reversing the judgment for error, and then, failing in that, come back to the court below for a re-argument ? If so, then an affirmance by the court of last resort will never be a finality; and we apprehend that in all cases the litigation will be renewed by an application for reargument.

The motion proceeds, we suspect, upon the suggestion by the court of appeals that the plaintiff, if entitled at all, should have had a larger verdict. And so we thought; but, upon the evidence, our conviction was that the verdict should have been for the defendants. Instead, however, of remanding the cause for a third trial we suffered the nominal verdict to stand, because, in our judgment, it involves no injustice to the plaintiff, and because we were, not inclined to encourage the experiment of successive trials until some jury might be found to decide against the manifest right of the case. It was not pretended either that the jury were guilty of any misconduct or that the plaintiff might improve his case by further proof. Why allow the chance of a verdict which the court would be bound to set aside?

Motion denied, with costs.

Bischoff, J., concurs.

Daly, Ch. J.

In awarding nominal damages the jury of course considered the facts that plaintiff was paid his full wages while he was disabled from working; that he was immediately re-employed by the defendants, and remained with them several years at increasing wages until he voluntarily left, and that he did not claim damages nor bring suit until nearly six years after the accident ; and they may have been satisfied that he had been fully compensated for his injury even in his own estimation. Under the circumstances we declined to interfere with the verdict on the ground of inadequacy, and we find no reason to change our views.


text:
    Charles C. Schildwachter, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Trial—Discontinuance.
    The court cannot, of its own motion, order a discontinuance of a common law action for the recovery of a sum certain, where no counterclaim has been interposed.
    2. Oosts—Right.
    A legal action cannot be converted into an equitable one, in which the costs are in the discretion of the court, by a motion for interpleader therein, which is not granted.
    Appeal from an order, directing the payment to plaintiff of the claim in suit, without interest, and a discontinuance of the action without costs.

      W. E. Benjamin, for app’lt; Francis M. Scott and John LO'Brien, for resp’t.
   Bischoff, J.

The proceeding of which the order appealed from is the outcome was instituted by defendant as a motion for inter-pleader, under section 820 of the Code of Civil Procedure. The order, however, accomplished a very different result from that originally sought, for thereby the action was directed to be terminated, as against all parties concerned, upon defendant’s paying the plaintiff the amount of his claim, without interest or costs. In that interest and costs were thus disallowed, lies the appellant’s grievance. The claim in suit was for two months’ rent of certain premises leased by defendant from plaintiff’s assignor for use as a fire-engine house, for the amount of which rent demand was only made upon the proper officer, and the action instituted after an interval of six months. Two months after the commencement of the action this motion was made, upon the ground that one Annie Foley laid claim to the fund in question ; but upon the return day of the motion the adverse claim was abandoned, and the claimant consented to the payment to plaintiff of the amount sued for. The -order now before us was thereupon made, and it was thereby provided “that the sum of two hundred and twenty ($220) dollars, due for rental of premises No. 104 and 106 East one Hundred and Twenty-Sixth street during the months of February and March, 1894, be, and the same hereby is, directed to. be paid over to Charles C. Schildwachter, and that the mayor, aldermen, and com-malty of the city of New York thereupon be discharged from liability to either the plaintiff above named or said Mrs. Annie Foley, and that the said defendants have five days after entry of this order to pay the said sum, and the foregoing action be discontinued, without costs to either party.”

The order to show cause, upon which the motion was instituted, recited the fact that it was made upon “all the papers and proceedings herein,” and the order appealed from recited the order to show cause/ Hence the complaint in the action must be assumed to have been before the court, and, in the complaint, interest was demanded from appropriate dates. Thus, such interest was as much a part of plaintiff’s claim as any other item constituting it, and, the claim standing undisputed, he was entitled to interest, as of absolute right. It was therefore not to be disallowed, “however ■commendable the motive of the denial.” Peetsch v. Quinn, 7 Misc. Rep. 6; 57 St. Rep. 80; Sibley v. Assurance Co., 18 St. Rep. 834. And in this regard the order is not to be supported. Failing the adverse claim, there was no further question but that defendant’s motion for interpleader could not prevail; it having accepted the ■claimant’s withdrawal, and abandoned the prosecution of the motion upon the original ground. The action was one at common law for the recovery of a sum certain, and no counterclaim had been interposed. The court could not, of its own motion, order a discontinuance. f Wilcox v. Daggatt, 15 Wkly. Dig. 208. Nor do we find any grounds for the granting of the defendant’s motion without the imposition of costs as a condition thereto. The costs provided by statute are awarded upon principles of natural justice, that he who has, by his resistance, subjected another to the expense of litigation in the enforcement of a just demand, should make indemnity for the expense. Pars. Costs, p. 3, § 5 ; Report of Code Cotn’rs 1848, p. 208. And while a plaintiff has been permitted, on his own motion, to discontinue an action at law, without costs, where it appeared that the demand was not enforceable because the defendant was an infant, a bankrupt, or otherwise exempt, which facts were unknown to the plaintiff when the action was instituted, Park v. Moore, 4 Hill, 592; Smith v. Skinner, 1 How. 122; Cuyler v. Coats, 10 How. 141; Wellington v. Classon, 18 How. 10; Taaks v. Schmidt, 19 How. 413 ; Smith v. Britt, 8 Wkly. Dig. 76 ; Van Buren v. Fort, 4 Wend. 209; Amour v. Steinbrenner, 1 Paige, 82 ; Phoenix v. Hill, 3 Johns. 249, or where, since the action was commenced, a change in the law exempted the defendant from liability, Gale v. Wells, 7 How. 191; Porter v. Jones, Id. 192, no precedent is to be found for the enforced discontinuance of an action without the payment of costs upon the application of a defendant confessedly liable for the demand in suit. Assuming, therefore, that there is some discretion which may be exercised by the court where the plaintiff applies for leave to discontinuance an action, without costs, in the instances ruled upon in the cases above cited, it remains that the facts here appearing afford no justification for the order appealed from, and an arbitrary denial of costs is within the province of a general term to review. Claflin v. Robertson, 23 St. Rep. 305. In this case the plaintiff was in no way in fault, the institution of the action being necessitated by the defendant’s failure to pay its just debt. So far as appears, the plaintiff was entitled to recovery and to the accrued costs as of course. Code Civ. Proc. § 3228, subd. 4. Obviously, the action was not. converted into an equitable one, in which the costs are in the discretion of the court (section 3230), since the motion for inter-pleader was not granted. Clark v. Mosher, 107 N. Y. 118; 11 St. Rep. 758. The order appealed from should be reversed, with costs of this appeal, and costs of the special term.


author: Daly, C. J.

text:
    Thomas Nevins, App’lt, v. Fidelity and Casualty Company, Deft.

      (New York Common Pleas, General Term,

      Filed April 1, 1895)
    1. Parties—Proper.
    In an action on a bond against the surety alone, the principal should, if he makes application, be brought in as a party defendant.
    2. Same.
    Such application will not be denied on the ground that it should have been by motion, and not by petition.
    Appeal from an order, granting a motion to be made a party to the action.

      Coudert Bros. (Joseph Kling, of counsel), for app’lt; H. F. Lawrence, for resp’t.
   Daly, C. J.

The complaint in the action between Thomas Nevins and the Fidelity & Casualty Company described in the petition sets forth an agreement between Nevins and this petitioner, Mason, on July 28, 1893, by which the plaintiff agreed to sell to Mason certain real property for the sum of $123,500, to be paid for by Mason taking the premises subject to existing mortgages for $83,500, paying $500 cash, and giving his bond and a mortgage on the premises for $40,000 ; the agreement providing that Mason should pay the plaintiff out of the rents of the premises $600 per month as a fund to pay the interest on the mortgages and the taxes, and that ‘ Mason should procure a bond from a surety company to secure the payment of such monthly sum. The complaint then sets forth that the Fidelity & Casualty Company executed a bond accordingly; that the deed to Mason was thereafter delivered, and he went into possession, and collected the

rents for the month of September, 1893, amounting to $136.50, which he omitted to pay to the plaintiff, and for which the plaintiff demands judgment against the company. The petitioner, Mason, named in the complaint as the party furnishing the bond of the surety company, now applies to be made a party to this action, in order to protect his interests; setting forth fraud on the part of the plaintiff Nevins in inducing petitioner’s purchase of the premises mentioned in the complaint; alleging that he is named in the bond as principal, and has a good defense to it, which will be lost to him unless he is made a party to the action, as the surety company cannot and will not avail themselves of the defense. The answer of the company in the action pleads defect of parties, averring the bond to be the joint obligation of the company and Mason. This application is made under the Code, providing that, “ where a person not a party to the action has an interest in the subject thereof * * * and makes application to the court to be made a party it must direct him to be brought in by the proper amendment.” Section 452. The plaintiff opposes the application on the ground that the petitioner has no interest in the subject of the action, because he is not entitled to receive any part of the amount in controversy, to wit, the rents collected by him. IE judgment goes against the surety, the petitioner, as principal, will be liable over to the latter; but he can relieve himself from such liability if permitted to. defend the action, and establish his defense therein. 4 He has, therefore, a direct interest in the subject of the action, viz. the enforcement of the bond. The surety company cannot set up as a defense the fraud which the petitioner charges. As the latter has not rescinded the contract of sale of the premises, he has only a claim for damages, which is not available as a defense to the surety, Gillespie v. Torrance, 25 N. Y. 306; but, if the principal and surety are sued together, a successful recoupment by the former will injure to the beneht of the latter, although the surety could not, if sued alone, avail himself of the defense, Springer v. Dwyer, 50 N. Y. 19. Great liberality is always shown in admitting parties who may be injuriously affected by the action and judgment. Thus, where an action was brought upon a contract for services, to restrain the employe from entering into the service of another, the latter was admitted to defend, as having a direct interest in the event of the action. Strobridge Lithographing Co., v. Grane, 35 St. Rep. 474. The court held that the defendant’s contract with the applicant was directly involved. In this case the obligation of the petitioner to indemnify his surety for the exact amount recoverable in this action is substantially involved in this litigation. The application is also opposed on the ground that it should be by motion in the action, and not by petition. In Haas v. Craighead, 19 Hun, 396, the application appears to have been by petition, although made in the action. There is no adjudication that an application by petition specially entitled should be denied for that reason. No substantial right is affected by the practice here pursued.

Order appealed from affirmed, with costs and disbursements.

All concur.


text:
    Skinner Engine Company, Resp’t, v. Old Staten Island Dyeing Establishment, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Bills and notes—Bona fide holder.
    The receipt of a note of a third person in payment of a precedent debt, does not alone operate as a discharge of the debt pro tanto.

    2. Same—Failure of consideration.
    In such case, failure of consideration is available as a defense by the maker against such holder.
    3. Witness—Credibility—Interest.
    The interest of a witness, because of his business relations with the party offering him, requires that his testimony should be submitted to the jury-
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict directed by the court in favor of plaintiff.

      George Zabriskie, for app’lt; Ewing, Whitman & Ewing (Hampton D. Ewing, of counsel), for resp’t.
   Daly, C. J.

The trial judge directed a verdict for the plaintiff, on the ground that the evidence established that it was a holder for value, before maturity, of the note in suit, without notice of the equities set up in the answer. The defendant claims that the evidence shows that the plaintiff took the note in payment of an antecedent debt, but not in discharge or extinguishment thereof, and therefore parted with no value. The acceptance by a creditor from his debtor of a new security or obligation for an old debt is the mere substitution of one executory agreement for another, and there is no extinguishment of such debt unless there is an express agreement to accept the new obligation or security as a satisfaction of the old,' Mayer v. Heidelbach, 123 N. Y. 332-340 ; 33 St. Rep. 610, or unless there is surrender of the evidence of the former indebtedness, Youngs v. Lee, 12 N. Y. 552; Brown v. Leavitt, 31 N. Y. 113. In the present case no security or evidence of indebtedness was surrendered by the plaintiff on receiving the note in suit from the payee. It is claimed, however, that there •was an agreement that it should be received in extinguishment of the debt, and that this agreement was to be inferred from a previous course of dealing and arrangement between the parties. The transfer of this note was evidenced by a correspondence between the payee and the plaintiff; the latter asking for a settlement for three engines shipped to him for which he was indebted in the sum of $853, and stating that, if the parties did not desire to pay all cash, plaintiff would be willing to take half cash, and their note at 60 days for the balance. In reply, the payee stated that lie would send a piece of short customer’s paper on account; and. two days later transmitted the note in suit in a letter, suggesting that it be handed to the bank for collection at once, to which defendant answered that it was immediately placed in the bank, and would go to its proper destination the next morning. The correspondence contained no statement from which an agreement to take the note in extinguishment of the prior debt should be inferred. The receipt of a note in payment of a precedent debt does not alone operate as a discharge of the debt pro tanto. Fisher v. Sharpe, 5 Daly, 214.

The plaintiff’s books showed an entry of a credit made to the payee of this note. It was testified by the treasurer of the plaintiff company that the company had prior transactions with the payee for a number of years, and had received commercial paper in payment of accounts, and that, when it was received, it was said between them that it was accepted as an extinguishment of the debt, and that the note in suit was not received in any other way. On cross-examination, however, the witness modified his statement by testifying that he told the payee that the company would be willing at anytime to take approved paper in settlement for anything he bought. This was not an agreement for the ex-tinguishment of the debt, and did not, under the authorities, discharge the debtor from it. The plaintiff was therefore not a holder for value within the rule protecting such holder against minor equities.

The answer sets up a defense which, if proved, would be sufficient. It appears that the note was given by the defendant to Barnhurst upon the faith of his contract previously made to erect an iron smokestack at defendant’s works, which was to be furnished with guy bands, rope, etc., to posts or fastenings, and for which he was to be paid $535 ; that he set up the smokestack, but without guying it fast as agreed, and received defendant’s note in advance of the completion of the work, upon his promise to immediately complete the same, which he, however, neglected to do, the smokestack being subsequently blown down, and damaging defendant’s buildings to their damage in more than the amount of the note; and that this occurred before the transfer of the note to the plaintiff. The facts pleaded will show a failure of consideration, which was available as a defense against the holder of the note who had not parted with value.

Wi th respect to the proof of transactions between the president of the plaintiff company and the payee of the note, to establish that it was taken in extinguishment of the old debt, it is proper to say that the testimony of the president should have been submitted to the jury as that of an interested party; not because of pecuniary interest in the result of the action, but of his business relations with the plaintiff, and the interest or bias which might result therefrom. Carbon Works v. Schad, 38 Hun, 71; Merrill v. Coal Co., 114 N. Y. 216; 23 St. Rep. 114 ; Goldsmith v. Coverly, 56 St. Rep. 857. The interest of the witness, though he may be unimpeached, requires that his testimony should be submitted to the jury. Elwood v. Telegraph Co., 45 N. Y. 549.

Judgment reversed, and new trial ordered with costs to appellant to abide event.

All concur.


author: Bischoff, J. Daly, C. J.

text:
    Max Lansburgh, Resp’t, v. Thomas Walsh et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1, Pleadings—Complaint—Assumpsit.
    In an action to recover the value of timber alleged to have been sold and delivered by plaintiff to defendant, an allegation in the complaint that the defendant agreed to pay the fair and reasonable value of the timber, does not necessarily render the action one on an express contract, and plaintiff may recover on a quantum meruit for the timber received by defendant.
    2. Partnership—Relation.
    An agreement for one to pay another, who does not in any sense incur liability for losses, a share of the profits by way of compensation for the • latter’s services, does not create a partnership.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff,

      Michel J. Scanlan, for app’lt; Leo G. Rosenblatt, for resp’t.
   Bischoff, J.

An agreement for one to pay another, who does not in any sense incur liability for losses, a share of the profits, by way of compensation for the latter's services, does not create a partnership. W. D. Wilson Printing Ink Co. v. Bowker, 42 St. Rep. 34; Hayward v. Barron, 46 id. 665. It is unchallenged, therefore, that J. 0. Thompson was only the plaintiff’s employee, and not party to any contract of sale between the plaintiff and the defendants. The facts which appeared from sufficient evidence upon the trial, and with regard to which the judgment of affirmance of the court below is conclusive upon us, Gundlin v. Packet Co., 8 Misc. Rep. 291; 59 St. Rep. 208, are that the defendants, through one Benton, a broker, agreed to purchase of Walton Thompson, the son of J, 0. Thompson, 2Í0 piles or pieces of timber of certain sizes and at specified prices, which latter were to be subject to deductions for freight charges to be paid by the defendants ; that Walton Thompson was acting in the transaction for his father, who was employed by the plaintiff, the owner, in the sale of timber, upon a share of the profits to be derived from sales made by such employee; that, after the plaintiff’s'shipment and the delivery to the defendants of a part of the timber, the latter Repudiated the contract, upon the ground that, when it was made, they were unaware that the plaintiff was the principal, and from the representations of Benton supposed Walton Thompson to be such; and that, at the time of the repudiation, the plaintiff had shipped 125 piles, of which 99 had been concededly received and retained by the defendants, and for which payment had not been made to anyone. Upon this state of the facts, the liability of the defendants for the fair and reasonable value of the piles retained, deducting therefrom the freight charges paid, is irrefragable. The trial court ruled consistently with that view, and restricted the plaintiff’s recovery to such an amount. Neither do the defendants dispute their ultimate liability as above stated, but they contend that the liability was not enforceable in this action. The contention last above alluded to, however, arises wholly from a misconception of the cause of action alleged. The complaint did not seek to enforce payment of an agreed price, but was for re-no very upon a quantum meruit for 125 piles alleged to have been sold and delivered to the defendants, less the freight charges paid by the latter. The allegation that the defendants agreed to pay the fair and reasonable value of the timber was, under the circumstances, but the statement of -a conclusion of law, and did not necessarily render the action one upon an express contract of sale. Sussdorfv. Schmidt, 55 N. Y. 319. Hence the court properly admitted proof of value, and the defendants’ motion for dismissal of the complaint and requests to charge the jury, in so far as such motion and requests were based upon an alleged variance in or failure of the proof, were properly denied.

It would be useless waste of time and labor to consider specifically each of the numerous exceptions which appear in the record. Hot one of them presents error which was prejudicial to the defendants, some having been taken to rulings which were based "upon concessions on the part of the plaintiff, in the defendants' favor. The recovery below was strictly in accord with the justice of the facts, and we are therefore content to affirm the judgment -appealed from. Judgment affirmed, with costs.

Daly, C. J.

(concurring).— The exception to the ruling of the .trial judge that the answer does not contain á counterclaim presents no error, in view of the fact that it was based upon defendants’ apparent claim of an effect upon the issues for want of a reply. The ruling was substantially that the counterclaim was not admitted for failure of plaintiff to reply, and that decision was correct. The counterclaim in question is found so designated in the concluding lines of a long and elaborate statement, commencing, “ (4) For a further and separate defense to this action,” and containing the particulars of the contract as claimed by defendants. The Code requires a counterclaim to be separately stated, which was not done; and, where it is described as a defense, the pleader is bound by his choice, and cannot claim any benefit from the want of a reply. Acer v. Hotchkiss, 97 N. Y. 408, 409. Defendants were precluded from proof under it. This vigorous litigation over the plaintiff's claim to recover for the value of the 99 logs actually delivered by him, and used by defendants, is probably explained by what seems to have been a hasty letter written by him in reply to their disclaimer of a contract with him. A little timely inquiry would have shown that they were justified in hesitating at that time to recognize the claim of one who was an apparent stranger to their dealings with Benton, and the whole dispute could probably have been adjusted without litigation.

Pryor, J., concurs.


text:
    Ralph P. Mosher et al., Resp’ts, v. Providence Washington Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Insurance—Marine—Forfeiture.
    A policy of marine insurance is not avoided by a mere unexecuted agree" ment to carry goods in violation of its terms.

      2. Same—Risk.
    Where the policy reads merely “from” a certain port, the risk attaches-only from the time the vessel weighs anchor and breaks ground for the-voyage with all the preparations completely made.
    Appeal from, a judgment of the city court affirming a judgment-entered on the verdict directed by the court in favor of plaintiffs.
    The action was brought upon a policy of insurance whereby defendant insured the “good canal boat A. D. Barber at and from at noon the thirteenth day of March (warranted by the assured to be then in safety), until at noon on the thirteenth day of March, 1894; * * * to be confined to the general freighting business-in the navigation of the rivers and canals of the state of New York, the port, bay, and harbor of the city of New York,” etc. No limitation upon the amount of freight which could be carried was made in this policy, but at the time of its delivery a marginal clause wss inserted in writing by defendant’s agent, as follows :. “Privilege of present trip New York to Baltimore, and return to-New York, with not exceeding one hundred and fifty tons of cargo on board either way.” On March 13,1893, the plaintiff Mosher entered into a contract for the transportation of 250 tons of iron borings from New York to Wilmington, Del., and loaded that quantity upon the boat at its dock in New York. Thereafter he applied to defendants for a change in the privilege clause to cover the amount'loaded for the contemplated trip, which application, was refused, and plaintiff announced his intention of abandoning the trip rather than proceed uninsured. On March 20th the boat, while still lying at her dock, was destroyed by fire,—one of the perils insured against,—and became a total loss. Defendant sought to avoid payment of the amount called for by the policy upon the ground that by loading in excess of 150 tons, with the intention of making the trip to Wilmington, the plaintiff had deviated from its terms. Upon the trial, both parties moved for the direction of a verdict, and the trial court made such direction in favor of the plaintiffs for the amount claimed. The judgment was affirmecL by the general term.

      Carpenter & Mosher, for app’lt; Hyland & Zabriskie, for resp’ts.
   Bischoff, J.

Upon an appeal from a judgment entered upon, a verdict directed by the court after both sides have moved for a direction, it is to be assumed that the facts essential to the judgment were found by the court in favor of the successful party. Daly v. Wise, 132 N. Y. 309 ; 44 St. Rep. 422; Dillon v. Cockcroft, 90 N. Y. 649, and we are concluded as to the weight of the evidence by the judgment of affirmance below. Dearing v. Pearson, 8 Misc. Rep. 269 ; 59 St; Rep. 201. There being evidence that, the plaintiff owner, Mosher, had abandoned his intention of making the trip permitted by the marginal clause in the policy, that, fact must here be taken as established.

But appellant contends that the privilege clause intended an immediate voyage, to the completion of which the operation of the general clauses of the policy was suspended, and that, therefore, by reason of the plaintiffs’ loading in excess of the amount. allowed by such clause, there had been an actual violation of the policy, which could not be affected by the insured’s subsequent change of intention, in the absense of a new agreement. Where there is an inconsistency between provisions of an insurance policy, a written clause will control over one which is printed, and. special provisions over general, Chadsey v. Guion, 97 N. Y. 383 ; Insurance Co. v. Hazelett, 4 N. E. 582. But there is a further rule of construction which requires that words of exception to or limitation upon a risk be taken more strongly against the insurer, and in the sense in which they would be naturally understood by the insured. Phil. Ins. § 131; 14 Am. & Eng. Enc. Law, 285, 286, note 1. In the application of the rules noted, we are unable to give to this policy and its marginal clause the- construction contended for by appellant. Some insurance upon the boat while lying at her dock after March 13th must necessarily have been intended from the wording of the general clauses, and, there being no provision in the special clause covering insurance while at the dock, nothing inconsistent with the general clauses is thereby presented. True, if a policy provides for insurance “at and from” a given point, a deviation may be predicable of the vessel’s loading at the port of departure, if an intention to substitute a voyage other than that provided for can be clearly shown ; and so of a policy insuring “from” a certain port, but there the intention is to be looked for only in connection with actual sailing. Phil. Ins. § 992. Where the word “at” is omitted, and the policy reads merely “from” a certain port, the risk attaches only from the time when the vessel weighs anchor and breaks ground for the voyage with all the preparations completely made. Phil. Ins. § 945. Here the special clause gave the privilege of a trip specified merely “New York to Baltimore,” etc.; and an assumption that the insurance thereunder, with the restriction against loading (which did not apply under the general policy), should commence “at” the place of mooring in New York, to the exclusion of the general insurance effected, would be to import a term into the clause-for the purpose of defeating the policy; and this, too, in contravention of the meaning which the insured most reasonably could put upon the words used, and which, as appears from the evidence, he actually did.

The judgments of the general and trial terms below should be affirmed, with costs.


author: Gtegerich, J.

text:
    George M. Church et al., Pl’ffs, v. Annie C. Haeger, Def't.

      (New York Common Pleas, Special Term,

      Filed March 25, 1895.)

    1. Injunction—Recital on grounds.
    The omission to recite in the injunction order the grounds for the injunction is a mere irregularity, where the order states that it was made on the verified complaint and an affidavit, copies of which, containing the grounds on which the order was granted, were served with it on the defendant, and and refers the defendant to them as therein stated.
    2. Same—Sale.
    A sale of chattels of special value, not ascertainable by any recognized, standard, will be enjoined

      Motion to continue a tempary injunction and cross motion to vacate it.

      Bernard J. Douras, tor pl’ffs; Jacob Fromme, for def’t.
   Gtegerich, J.

The omission in the injunction order to recite the grounds for the injunction, as required by section 610 of the Code, is a mere irregularity, and should be disregarded, as the order states that it was made on the verified complaint and the affidavit of William H. Howell, copies of which, containing the grounds on which the order was granted, were served with it on the defendant, and refers the defendant to them as therein stated. Atlantic & P. Tel. Co. v. Baltimore & O. R. Co., 46 Super. Ct. 377, 409, 410. See Daly v. Amberg, 36 St. Rep. 713, The motion to vacate the order by reason of such omission is therefore denied.

It satisfactorily appearing from the papers submitted that many of the articles of personal property referred to in the complaint were wedding presents, possessing a peculiar and special value to the plaintiffs, aside from their general market value, and which could not be ascertained by any recognized standard, and that the sale of the same would result in irreparable loss, the motion to continue the injunction should be granted (Spel Extr. Bel. p. 437, § 536), with $10 costs to abide the event.

The security given by the plaintiffs, however, is wholly insufficient, and they should, within five days after the entry of the ■order, give an undertaking in the sum of $3,000 that the plaintiffs will pay to the defendant such damages, not exceeding said sum, as she may sustain by reason of the injunction, if the court finally decides that the plaintiffs were not entitled thereto. On giving such undertaking, the injunction is continued. If the foregoing terms are not complied with, the motion to continue the injunction is denied, with $10 costs. Order to be settled upon one day’s notice.