text:
    Village of Niagara Falls, Resp’t, v. John Salt, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Municipal corporation—Village of Niagara Falls—Charter of— Power to prohibit runners under.
    The charter of the village of Niagara Falls, among other things, provided that “ the trustees of said village shall have power in then discretion, in addition to the powers granted hy ‘ Laws 1847, chap 426, § 58, * * * to restrain and prohibit all runners, solicitors or guides for boats * * * or any other place or purpose whatsoever " The board of trustees of the said village passed and duly published a by-law prohibiting within the corporate limits of said village, all persons from running for or soliciting any passenger or passengers, etc., under penalty, etc., for each offense. Feld, that the charter gave to the trustees of the village the power to restrain and prohibit all runners, solicitors or guides, etc. That the power to restrain and prohibit them was not limited to the public places or streets of the village, but that the power was given to restrain them wherever they might be within the corporate limits. That the by-law was equally explicit. {City of Boehester v. Close, 35 Hun, 208, distinguished.)
    '2. Same—Does not infringe on common law right as to use of property.

      Feld, that neither the charter nor ordinance in question was a violation of any common law right, for no person has the right to so conduct himself or use his property as to annoy and vex others when passing along the public way.
    Appeal from a judgment of the county court of Niagara county, affirming a judgment of the nolice justice of the village of Niagara Falls.

      Frank Brundage, for app’lt,- W. Caryl Fly, for resp’t.
   Haight, J.

This action was brought to recover a penalty. The facts were' agreed upon, and are in substance as follows:

The defendant was one of the lessees and proprietors of the Western Hotel, in the village of Niagara Falls. The premises are on the northerly side of Falls street, directly opposite Second street, and fronting on the same side of Ralls street as the depot of the New York Central Railroad Company, into which run several different lines of railways. Large numbers of passengers emerging from the depot pass down the same side of the street to the Niagara river and other points of interest, and in doing so pass the defendant’s hotel. The hotel stands nine feet from the line of the street, and in front is a stoop or veranda about seven feet in width running to within two feet of the street line. In front of the stoop are plank nailed crosswise over the planks of the sidewalk which occupy the remaining two feet of the defendant’s premises.

The defendant and his son ran the house as an inn or tavern and kept conveyances which were used for the conveyance of passengers for hire. On the 30th day of May, 1886, about eight o’clock a. m., just after the arrival of a train at the depot, the defendant while standing upon that portion of the premises marked by the planks, nailed down as aforesaid, at about the center of the same, accosted four persons who were passing along the sidewalk, saying, “ Breakfast is all ready gentlemen. If every thing is not satisfactory your money will be refunded.” One of the party said they had been to breakfast. The party just, halted and passed on. The defendant standing on the same planks again accosted them, saying, “Would you like a. carriage to go around and see the points?” The party kept, on down the street without response.

Subdivision 4 of section 1, of the plaintiff’s charter provides that “The trustees of the said village shall have power in their discretion in addition to the powers granted by section 58 of an act entitled ‘An act to provide for the incorporation of villages, passed December 7, 1847. * * * To restrain and prohibit all runners, solicitors or guides lor boats, carriages, railroads, public houses, places of resort, or any other place or purpose whatsoever.” Under and by virtue of this charter, the board of trustees of the village, on the 4th of September, 1887, passed and duly published section 1, of chapter 5 of the by-laws of the village, which is still in force, and is as follows:

Be it enacted as follows, that all persons are prohibited within the corporate limits of this village for running for, or soliciting any passenger or passengers, or person or persons, for any steamboat or other public or private conveyance, or for any tavern, boarding house, store or other place, of resort, under- penalty of not less than one dollar nor more than twenty-five dollars for each offense.”

It will be observed that the by-laws in question are fully within the provisions of the charter and authorized by it. It is contended, however, that because the defendant stood upon bis own land, upon the planks in front of his piazza, outside of the sidewalk, that he was not within the public street, and that consequently he he was not within the provisions of the charter or by-law to exclude from soliciting patronage for his hotel or tavern. But we do not think the charter or by-law in question should be so construed. The charter gives to the trustees of the village the power to restrain and prohibit all runners, solicitors or guides, etc. The power to restrain and prohibit them is not limited to the public places or streets of the village, but the power is given to restrain them wherever they may be within the corporate limits. The by-law is equally explicit, for by it all persons are prohibited within the corporate limits from running for or soliciting any person or persons for any public or private conveyance, or for any tavern, boarding house, etc. Had it been the intention of the legislature or of the trustees to limit solicitation for passengers and patronage to the public streets, such limitation would doubtless have appeared by express terms in the provision of the charter and by-law.

Nor do we think that the charter or ordinance in question is a violation of any common law right, for no person has the right to so conduct himself or use his property as to annoy and vex others when passing along the public way. At common law the highways were under the jurisdiction and control of the King; and, in this country, that of the sovereign power of the state. In municipal governments the legislature has seen fit, in most instances to require the municipality to take charge of and keep the streets in proper repair for the use of the public. But it still retains the power to preserve peace and good order and protect the people in their unmolested use of the highways. It may be just as much annoyance to travelers to be accosted by a person standing a few inches from the sidewalk over which they are passing as it would be to be accosted by a person standing in the middle of the street.

It is suggested that if the soliciting from private property of those passing upon the street is an offense, that then if the village trustees saw fit, they could pass a by-law prohibiting persons from singing or playing upon the piano in their own houses, so that the sound could be heard upon the streets. It does not, however, appear to us that there is any force in the suggestion, for the reason that no power is given the trustees under the charter to pass by-laws restricting singing or music in private houses.

In the case of the City of Rochester v. Close (35 Hun, 208), it was held that the charter did not authorize the ordinance and for that reason the ordinance could not be enforced. The other cases to which the appellant refers were in reference to_ entirely different ordinances or by-laws, and have no application to the question under consideration.

It appears to us that the trial court and county court properly held that there was a violation of the by-law in question, and that the defendant was properly held liable for the penalty.

The judgment should therefore be affirmed.

Smith, P. J., and Bradley, J.. concur.


source: Caselaw Access Project

author: Smith, P. J.

license: Public Domain

text:
    The People ex rel. The Sodus Bay and Southern Railroad Co. and The Northern Central Railway Co., App’lts, v. William T. Cheetham et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1887 )

    1. Taxes and assessments—Certiorari—Laws 1880, chap. 269—Failure TO SUPPLY WRITTEN STATEMENT REQUIRED BY IB. S., 414, § 2, DOES NOT TAKE AWAY RIGHT TO REVIEW PROCEEDINGS OF ASSESSORS.
    Upon an appeal from an order granting a writ of eertiora/ri, the application for which was made under the provisions of Laws 1880, chap. 269, to review an assessessment of the property of the relator; Held, that the failure of the relators to furnish a wri.ten statement, as required by 1 It. S, 414, § 2, did not deprive them of the right to review the determination of the assessors. That the consequence of such failure was prescribed by section 4 of that act and that the courts could not add penalties to those prescribed by the legislature
    2. Same—Where statement could contain no information on points TO WHICH objections were taken.

      Held, that in case the foregoing ruling were erroneous, there was no obvious reason why the relator should be deprived of the right to review the action of the assessors in respect to alleged errors upon points concerning which, the statement, if made, could have furnished no information to the assessors
    3. Same—Improper joinder of parties applicant no ground for quashing writ—Remedy is by motion to strike out.

      Held, that if upon the application for the writ there were an improper joinder of parties applicant the remedy for the defect was not by motion to quash the writ, but by motion to strike out the party improperly joined.
    4. Same—Verification of petition by one of relators sufficient, on MOTION TO QUASH WRIT.

      Held, that a verification of the petition by one of the relators was sufficient, on a motion to quash the writ.
    5 Same—Form of verification not prescribed by Laws 1880, ciiap 269.
    Upon objection to the verification taken, on the ground that it did not state that either of the relators had ‘' not an officer or director thereof then actually within the county,” but staled only that no such officer, etc.. “ resides ” in said county. Held, that the verification was sufficient within Laws 1880, chap. 269, which does not prescribe the form of the verification, but merely requires that the petition be duly verified.
    6 Same—Petition—What allegations sufficient within Laws 1880, chap 269, § 1.

      Held, that the petition alleging that the parties “ claim ”_to be aggrieved, and containing averment of the errors alleged, was sufficient within Laws 1880, chap. 269, § 1.
    7 Same—Laws 1880, chap. 269, § 4^-Traverse of return unnecessary.

      Held, that the rule applying to common law certiorari proceedings, that a return not traversed is to be taken as conclusive and acted on as true, had no application to such proceedings taken under this statute, which seems to contemplate that notwithstanding the return takes issue with material allegations in the petition or avers new matter, the court, at the hearing, may order proofs to be taken, and that the testimony so taken and reported shall be considered by the court in making its determination.
    Appeal from an order of the special term quashing the writ of certiorari issued herein.

      George M. Dwen, for appl’ts; 8. D. Bentley, for resp’ts.
   Smith, P. J.

The application for the writ of certiorari in this case was made under the provisions of chap. 269 of the Laws of 1880, to review an assessment of the property of the relator’s made by the assessors of the town of Sodus. A return was made to the writ which appears to have been verified on the 25th of September, 1886, and at a special term held in the county of Monroe, on the 27th of the same month the return appears to have been read on the motion which resulted in the order from which this appeal is taken, and to have been then ordered to be filed. The order quashing the writ appears by a memorandum of the judge contained in the appeal book, to have been granted upon the ground that the relator’s having failed to make and deliver to the assessors a written statement as required by statute, (1 R. S„ 414, sec. 2), on or before the first day of July, should not have the writ.

The appellants counsel contends that the provisions of the statute referred to require the statement therein prescribed to be made only to the assessors of the town where the corporation has its principal office. The point was ruled adversely to the appellant’s contention in The People v. Cassity (46 N. Y., 46). The ruling was not a mere obiter dictum, as the appellants counsel contends, but seems to have been essential to the conclusion reached by the court.

We are not prepared, however, to concur in the opinion that the failure of the relators to furnish the statement deprives them of the right to review the determination of the assessors. The statute imposes no such penalty. The fourth section prescribes the consequence of such failure, to-wit: a forfeiture to the people of the state of the sum of $250. The courts cannot add penalties to those prescribed by the legislature. The prime object of requiring the statement, is doubtless to furnish the assessors with information that wifi aid them in making the assessment. But the statement is not essential to their jurisdiction, they may act on information derived from other sources; and if they do so, and act erroneously to the prejudice of the assessed corporation, it seems illogical and unjust to deprive the corpopation of the right to review such action. If the corporation should fail to appear before the assessors on the grievance day, and ask to have the alleged errors corrected, the case would be different. Having waived that opportunity, it might well be held that it had no standing to review the action of the assessors; aud that is all that is desired in The People ex rel., v. Com’rs of Taxes (99 N. Y., 254), cited by the respondents counsel, as we understand the case.

But if the views above expressed are erroneous, it is difficult to see upon what reason a failure to make the statement can be held to deprive the corporation of the right to review the action of the assessors in respect to alleged errors, upon points concerning which the statement, if made, could not have given any information to the assessors. In the present case, the relators complain not only that the assessors have assessed as real estate property of the relators which is not real estate, but also that the assessment is unequal and excessive and that in making it the assessors have ignored and disregarded the proofs made before them by the relators. Upon none of the points named, except the first one, would a statement such as is required by the statute have furnished any information or aid 'to the assessors.

Certain other positions are taken by the respondent’s Qounsel on the argument, as reasons for affirming the order. Attention is called to the fact that the Sodus Bay Company is not assessed, the entire assessment being against the other relator. The petition upon which the writ was allowed, alleges that the railroad which is the subject of the assessment is owned by the Sodus Bay Company and is occupied by the Northern Central Company, under an arrangement between them, by which the latter company, among other things, pays all expenses of operating and maintaining the road, including the taxes assessed thereon.

That allegation is not controverted by the return. Whether the fact so alleged makes the Sodus Bay Company a necessary or a proper party to the proceeding, is a question which we think was not involved in the motion to quash the writ, and does not arise on this appeal. If there is an improper joinder, the remedy for the defect is not by motion to quash the writ, but by motion to strike out the party improperly joined.

It is also urged by the respondent’s counsel, that the petition for the writ is not properly verified. This position resolves itself mainly into the objection that there is no verification as to the Sodus Bay Company. If it is properly verified as to one of the relators, that we conceive is enough upon a motion to quash. The only objection made to the verification on the part of the Northern Central Company, is that the affidavit of Mr. Meade, the superintendent, does not state that either of the relators has “not an officer or director thereof then actually within the county,” but states only that no such officer, etc., “resides” in said county. That is sufficient, we think, within the act of 1880, which does not prescribe the form of the verification, but merely requires that the petition be “ duly verified.”

Next, it is objected that the petition does not allege that the relators are aggrieved, etc., but merely that they “claim” to be aggrieved. There is a preliminary averment in that form, but it is followed, as we read the petition, by positive averments of the errors alleged, and thus the petition follows the statute, which provides that the remedy may be allowed to a party “claiming” to be aggrieved, upon a petition specifying the grounds of illegality, etc. Sec. 1

Lastly, it is urged that the return not having been traversed, is to be taken as conclusive and acted on as true. That rule applies to the case of a common law certiorari-, but the statute under which this proceeding is taken, provides no mode of traversing a return by pleading, and it seems to contemplate that notwithstanding the return takes issue with material allegations in the petition, or avers new matter, the court, at the hearing, may order proofs to be taken, and the testimony so taken and reported, shall be considered by the court in making its determination. Sec. 4.

We think the order quashing the writ should be reversed, with ten dollars costs and disbursements, and the motion to quash denied.

Haight and Bradley, JJ.; concur.


author: Bradley, J.

text:
    In the Matter of the Probate of the Last Will and Testament of Susan Cobb, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Will—Construction on—Property disposed on by—Effect on nailuee on clause disposing on—Residuary legatee.
    By a clause in her will the testatrix gave, devised and bequeathed all her household furniture and wearing apparel to two persons named therein, to be distributed as she might “designate and direct” them while living. Reid, that if this clause were void, the property therein mentioned would go to the residuary legatee.
    2. Same—Construction on clause—All parts on will may be compared TO AID IN INTERPRETATION.

      Reid, that the manner' of expression and the words used, so far as they .were systematically or uniformly applied to declare purposes like in character, were properly considered to aid so far as they might in the interpretation and effect to be given to a phrase of uncertain import, and to see what, if any, aid might be derived from the mode of expression in other portions of the instrument.
    3. Same—Interpretation on language.

      Reid, that in the interpretation of expressions in wills, the precise or technical meaning of words in the application and grammatical construction could not always be relied upon to support the purpose or intent of the testator.
    4. Same—Intent expressed by language.

      Reid, that it was a reasonable supposition that if the intention had been to make third parties beneficiaries of the bequest, words would have been used applying the term “ designate to other persons,” although not named, rather than so using it that it might with equal facility be applied to the manner of distribution '
    5. Same—Construction on clause.

      Reid, that there was no purpose on the. part of the testatrix to create a trust for the benefit of other parties, but that the fair construction of the clause required the conclusion that by it she intended to give the property there mentioned to the legatees therein named.

      6. Same—Beneficiaries under—Tenants in common.

      Reid, that they took the property by the bequest, and because of the omission to designate the manner in which it should be divided between them, they took it as tenants in common.

      Appeal from the decree. of the surrogate’s court of Orleans county, so far as it gives construction to a certain provision of the will in question.
    ¿Sf. 2B. Filkins, for app’lt; Whendon & Ryan, for resp’t.
   Bradley, J.

The will of Susan Oobb, deceased, was offered for probate and duly proved. And upon the petition of Sally E. Ludlum, the residuary legatee in the will, the question of the construction and effect of the eighth clause of the will was brought to the attention of the surrogate’s court.

Nancy S. Holman, another legatee of the will, and whose interest was adverse to that of Ludlum upon, the question, answered the petition The eighth clausels as follows:

“I give, devise and bequeath all my household furniture, wearing apparel and jewelry to Sally E. Ludlum and Nancy S Holman, to be distributed as I may designate and direct them while living.”

The court below held that this clause was void, and that the property embraced within its terms went to the residuary legatee under the seventh clause, by which the testatrix gavo all the residue and remainder of her estate to Sally E. Ludlum. If the surrogate was right in his determination that the eighth clause was void, the other conclusion properly followed as the result. Matter, etc., of Benson, 96 N. Y., 500, 510. The provision of this clause furnishes another illustration of such use of words in a will as to render doubtful the purpose, very simple in character, which a testator seeks to express. The view of the surrO' gate was, and such is the contention on the part of the respondent here, that the intention of the testatrix was to’ give the property to the persons named as trustees merely, and to make such distribution of it amongst others as she should in her lifetime designate and direct, and that they took no beneficial interest in the property; while, on the other hand, it is insisted that the intention of the testatrix was to give the property to the persons named, and the direction for distribution had in view .related to the division between them, which the .testatrix desired to control, and therefore they took the property in question by this provision of the will. In aid of the interpretation of this portion of the will, reference may be made to all its parts, and to the relations between the testatrix and the other persons named in it, so far as they appear by its provisions. And here there is no evidence bearing upon such relations, or in respect to the character and quantity of the property referred to, other than that which the will itself furnishes. Nancy S. Holman was sister and Sally E. Ludlum niece of .the testatrix. She, by the will, first gave to the sister $3,000. Then four small legacies, varying from $300 to $500, to that number of persons.

Then she devised the use of her cottage on Chautauqua Lake Sunday School Assembly Grounds to the sister during life, with privilege of occupation by the niece, who should take absolutely on the death of the sister, subject to the occupation of the Rev Mr Salsbury and his family. Then follow the seventh and eighth clauses before mentioned, and Sally E. Ludlum is nominated as executrix of the will. This sister and niece are the principal objects of the bounty of the testatrix, and it does not appear that she had any other relatives except a nephew, who is a legatee to the amount of $500. She also gives an adopted son a legacy of $400. The property mentioned in the eighth clause is of such character that it would hardly be expected that she would desire that it would go to strangers or to those who would not by reason of some relation be supposed to appreciate and preserve it. It consisted of furniture, wearing apparel and jewelry, and much of it very likely had its value in its association with the memory of the testatrix. This is only a circumstance relating to the usual and natural tendencies of the views of persons in the disposition on their death of articles of personal property of the character of those referred to, and may not be entirely excluded from consideration. Then in seeking for the method of expression in other portions of the will, it is seen that such is the uniformity that in the seven clauses preceding the eighth, the word “absolutely” is used in all instances to express the unqualified gift of legacies, whether of money or other property. And the omission of that word in the eighth clause was by the court below, and is by the respondent’s counsel here, deemed as a significant indication of purpose not to vest in the persons named title to this property. The manner of expression and the words used, so far as they are found systematically or uniformly applied to declare purposes like in character, are very properly referred to, and given consideration to aid; so far as they may in the interpretation and effect to be given to a phrase of uncertain import, and to see what, if any, aid in construction may be derived from the mode of expression in other portions of the instrument. With the light given by all that is found elsewhere in the will, attempt must be made to give the construction to this particular clause which will effectuate the purpose and intent of the testatrix.

She there says that she gives the property to this sister and niece. She does not in terms say that she gives_ it to them in trust, nor is it necessary that she should, if the purpose appears by .the words to have been such, but in the same connection she adds, to be distributed as I may designate and direct them while living.” Amongst or be tween whom ?

It is true that if it was intended that the persons named should take as beneficiaries, more apt words may have been employed. But in the interpretation of expressions in wills, the precise or technical meaning of words in their application and grammatical construction cannot always be relied upon to support the purpose or intent of the testator It the intention had been to make third persons beneficiaries of the bequest, it is reasonable to suppose that the draftsman would have used words applying the term ‘‘ designate ” to other persons, although not named, rather than so using it that it might with equal facility be applied to the manner of distribution. The distribution that she should direct was to be made by the two persons mentioned. This did not require more than two distributees. And if the circumstances fairly indicate that such was her intention, this clause may be construed as making a bequest to the sister and niece of the property to be distributed by and between them in the manner she might direct.

We are inclined to think that that such was the purpose of the testatrix. She evidently did not intend that this property should go into the residuum of her estate, but after the residuary clause is inserted and following it is this bequest made, without which the niece would have taken all of the ornaments, clothing and furniture of the testatrix. It cannot well be supposed that this eighth clause was inserted with a view to transmit these things to strangers, or to persons with whom she had not intimate and affectionate relations. Those nearest to her in regard and esteem seem, by the will, to have been her sister and niece. And having by the residuary clause included all of this property in the bequest to her niece, it seems quite natural that she should desire that her sister should also be a recipient to some extent of those articles with which the testatrix had clothed and adorned her person and those with which had been associated her domestic and household duties and relations. And that the clause in question should be the product of such wish on her part. Then if the purpose had been to exclude those persons from the beneficial relation to such bequest, and to give the property to other parties, it is not very likely that she would put the duty upon both of them to make her directed distribution of the property, inasmuch as in that event no discretion would fall upon the trustees, but rather that she would have left the performance of that duty to the executrix of the will into whose possession the property would come as such representative. Then there was nothing remarkable in the desire on her part to designate as between them the articles which. they should respectively take, as well to gratify preference as to the articles each should receive, as to obviate any question or difficulty that might otherwise arise between them. And believing, probably as she did, that respect and observance would be given to her direction in that regard.

By reason of this purpose to direct the manner of division -or distribution of this property between them, the omission of the word “absolutely” does not appear very significant.

We think there was no purpose of the testatrix to create a trust for the benefit of other parties, but that the fair construction of the eighth clause requires the conclusion that she intended by it to give the articles of property there mentioned to Sally E. Ludlum and Haney S. Hohnan. And this construction has the advantage of validity of the clause, while the other contended for would render it void. They take the property by this bequest, and because of the oinission to designate the manner which the property should be divided between them they have taken it as tenants in common.

The portion of the decree appealed from should be reversed and the decree modified accordingly.

Smith. P J and Haight, J., concur


author: Haight, J.

text:
    Mary J Burley, Resp’t. v Orren Barnhard, as Executor, etc, of Gardner Burley. Deceased, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1 Husband and wife—Wife’s eaenings—When husband entitled to— Laws 1860 chap 90 § 2
    In an action brought against executors for services rendered in nursing and caring for their testator during his sickness, it appeared that the services were performed while the plaintiff was living with her husband doing the ordinary household labors of a wife having no separate estate or business, and that the testator, who was her father-in-law, was living with them Held, That Laws 1860, chapter 90, § 2, does not wholly abrogate the rule of the common law, entitling the husband to the services and earnings of the wife. That she may still allow Mm to claim and appropriate the fruits of her labor, and in the absence of an election on her part to labor on her own account, or of circumstances showing her intention to avail herself of the privilege conveyed by the statute, the husband’s common law right is unaffected.
    2. Same—What evidence sufficient to show intention to labob on own account.
    It appeared that tv o or three years prior to the sickness of the testator, plaintiff’s husband had told her that she might have whatever the testator would pay her for taking care of him, and that the testator was at times irritable, and that he and plaintiff did not get along well together. There was also evidence tending to show that the testator promised to pay the plaintiff and that on one occasion he commissioned the husband to say to her that if she would stay, he, the testator, would pay for it, and that the husband so stated to her in an interview that he had with her by direction of the testator. Held, That there were some circumstances indicating an intention on the part of the wife to separate her earnings from those of her husband, which taken in connection with the promise of the deceased to pay her for her labor, justified a finding that the plaintiff was-entitled to maintain the action.
    3. Same—Evidence—When husband not interested party within Code Civil Pro § 829.

      Held, that the claim of the plaintiff was not derived through her husband and consequently he was not an interested party and was not prohibited from testifying under Code Civil Pro., § 829.
    4 Same—Evidence — When physician competent under Code Civil Pro, § 834.
    The physician who attended the testator during the last year of his life, was asked whether he observed the testator during this time when he was not attending him as a physician. Held, that it was competent under Code Civil Pro , 834, for him to answer that he had, and to answer questions which only went to the observations made of the outward, visible facts that were seen by him on these occasions when he was not attending as a physician, and which were open and visible to the sight of any person.
    6. Same—Value op service op nurse—Physician may testify to ceneral rule
    The physician being asked as to the value of the plaintiff’s services as nurse and answered that he could not tell for the reason that he had not seen the deceased on consecutive days on many occasions, hut stated that as a general rule, where a nurse was required, it was worth from five dollars to ten dollars per week. Held, that the answer not being confined to this particular case, but a statement of a general rule, was competent.
    Appeal from a judgment entered upon an order of the Monroe special term, confirming the report of a referee upon a disputed claim referred under the statute.

      Charles H. Wiltsie, for app’lt. Wilkin & Pierce, for resp’t.
   Haight, J.

The respondent is the wife of Edwin Burley, a son of Gardner Burley, deceased. She presented a claim to the executor of the deceased for services rendered in nursing and caring for him during his sickness, from June 3d, 1880, until November 1st, 1881. This claim was rejected by the executor and the same was duly referred under the statute, to a referee who found in favor of the plaintiff for the sum of $325.

It appears from the evidence that Edwin Burley and his wife, the plaintiff, occupied the farm of the deceased, working the same upon shares, he living with them. That on the third day of June, 1880, he had a sunstroke, or was overcome with heat; that sickness followed, and the evidence on the part of the plaintiff tends to show that thereafter he suffered much pain and was irritable, requiring considerable attention, and that the plaintiff cared for him as a nurse during the time mentioned in her claim.

The referee has found as a fact that these services were rendered by her under an express contract to pay her for the services.

Whilst the evidence on this branch of the case is not very satisfactory, it is of that character in which we cannot say that the finding is against the evidence. For if the referee believed the testimony of the witnesses who speak upon the subject, taken in connection with references that may properly be drawn from the circumstances of the case, there was sufficient evidence to support the finding.

As to the question whether the plaintiff can recover for. these services, a more difficult question-is presented, for it is undisputed that, at the time the services were performed, she was living with her husband upon the farm doing the ordinary household labors of a wife having no separate estate or business. Under the provisions of section 2, chap 90 of the Laws of 1860, “A married woman is authorized to perform labor or services and have the earnings for her sole and separate property. ” This provision, however, is not understood as wholly abrogating the rule of the common law entitling the husband to the services and earnings of the wife. She may still allow him to claim and appropriate the fruits of her labor, and in the absence of an election on her part to labor on her account, or of circumstances showing her intention to avail herself of the privilege conferred by the statute, the husband’s common law light is unaffected. It consequently became a question of fact to be determined by the referee as to whether the services performed by her in taking care of her father-in-law, was understood at the time by the parties to the agreement that the compensation was to be paid to her for her separate use and property, and this fact had to be determined from the facts and circumstances of the case.

In the case of Birkbeck v. Ackroyd (74 N. Y., 356, 359), Andrews, J, in delivering the opinion of the court, clearly states the rule. He says, “When the question arises as to the right of a husband to recover for the labor and services of the wife, it must be determined upon the facts and circumstances of the case. When the labor is performed under the contract with the wife, and by the contract payment is to be made to her, the inference would be strong if not conclusive of her intention to avail herself of the protection of the statute.

So, where the wife is living apart from her husband or is compelled to labor for her own support, or the conduct and habits of the husband are such as to make it necessary for her protection that she should control the proceeds of her labor, the jury might well' infer that her labor was performed on her separate account; but where the husband and wife are living together and mutually engaged in providing for the support of themselves and their family, each contributing by his or her labor to the promotion of a common purpose, and there is nothing to indicate an intention on the part of the wife to separate her earnings from those of her husband, her earnings in that case belong, we think, as at common law, to the husband, and he may maintain an action in his own right to recover them.

As to this question the evidence is somewhat meagre. The plaintiff was living with her husband and mutually engaged in providing for the support of themselves and their family, each contributing by his or her labor to the promotion of a common purpose. But it appears that two or three years prior to the sickness of Gardner Burley, her husband had told her that she might have whatever his father would pay her for taking care of him. It further appears that at times he was irritable, and that" they did not get along well together, and that she threatened to leave on that account, and that on one occasion, two or three years before his sickness, the deceased was talking with the plaintiff about her staying, and that she said to him that “It would be of no use; she could not get along with him.” He said, “You go on and do the work as. you have done, and I will pay for what you have done and what you shah do.” And again, on another occasion the deceased came to the barn and saw Edwin and wanted him to go to the house and induce the plaintiff to stay. “He said if she would stay he would pay her for it. He said she was determined to leave. He said she was packing up her trunk.” It further appears that Edwin went to the house, had a conversation with her, told her that if she would stay his father would pay her; that she still refused to stay, and that he went back to the barn and so reported to his father, that thereupon his father went to the house himself and she staid, unpacked the things and went to doing the work again. This evidence appears from the testimony of Edwin Burley.

It further appears from the testimony of Charles Miller, who was working for Burley upon the farm, that on one occasion he heard a conversation between Mary and Gardner Burley at noon time when he came in to dinner; that Gardner Burley said to her that he would pay her for the trouble she had; that he heard her say that she would stay; that he was crying and begging her to stay, and he would pay her for her trouble. If this evidence is to be believed, the promise was to pay her, and on the occasion that the deceased went to the barn and saw the plaintiff’s husband, he commissioned the husband to say to her that if she would stay he would pay her for it, and that the husband so stated to her at the house in the interview that he had with her by direction of his father. So, that, whilst the plaintiff and her husband were living together under the circumstances detailed, there were some circumstances indicating an intention on the part of the wife to separate her earnings from those of her husband, which, taken in connection with the promise of the deceased to pay her for her labor, incline us to the opinion that the referee was justified in finding that sti.e was entitled to maintain the action.

The claim of the plaintiff was not derived through her husband. It is for services which she performed for the deceased, on her sole and separate account, which she had the right to do under the statute, and consequently Edwin Burley was not an interested party; and prohibited from testifying under section 829 of the Code of Civil Procedure.

It is contended that errors were committed in receiving the testimony of Dr. Doane; that the same was incompetent under section 834 of the Code, which provides that a person duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, which was necessary to enable him to act in that capacity. The doctor was sworn as a witness, and testified that he began treating the deceased in 1879, or the fore part of 1880, during his first sickness; that he treated him for some time while he was living at Edwin Burley’s; that from 1880 down he often saw him when he was not attending him as a physician. He was then questioned as to whether he observed him during the time when he was not attending him as a physician. He answered that he did, and observed his condition.

This and other answers of a similar nature were taken under objection, but it will be observed that the answers only go to the observations made of the outward, visible facts that were seen by him on these occasions when he was not attending as a physician and which were open and visible to the sight of any person. In none of them do the answers disclose any information which was acquired by him whilst attending in a professional capacity, and the evidence consequently was not brought within the provisions of the section of the Code referred to. Eddington v. Ætna Ins. Co., 77 N. Y., 564-576.

But, again, he was asked what was the value of the services of a nurse in taking care of Gardner Burley in the condition he was in. This was objected to; the objection overruled and exception taken. It will be observed that this question was not confined to the condition of the man as seen by him during the period that he was not treating him professionally, and it might possibly be inferred that the question called for the judgment of the witness as to the value of the services of a nurse taking into consideration the condition of the patient as that condition had been disclosed by treating him as a physician. If so, there might be some doubt about the propriety of the question, but the witness did not,- in his answer, give the value of the services called for. His answer, in substance, was to the effect that he could not answer the question, for the reason that he had not seen the deceased on consecutive days, on many occasions, and could not tell how much it was worth, but stated that, as a general rule, where a nurse was required it was worth from five to ten dollars per week; some weeks it was worth five and some weeks ten, and so on, so that the answer, as we understand it, was only given as to the general rule and was not confined to this particular case. Consequently the exception taken to the ruling does not become the basis of any error.

Sarah Shell was undoubtedly a competent witness for the defendant, although she was an interested person. She was sworn on behalf of the executor, not against him, and was not disqualified under section 829 of the Code of Civil Procedure; but the question as to whether she had washed the curtains or, on some, occasion, made up the bed of the deceased, was not an issue in the case and was so immaterial and unimportant that no new trial should be granted on account thereof. She was also a competent witness to testify as to what it was reasonably worth to take care of an old man’s room, do his mending and washing, by the wife of the tenant working the farm; but the referee has held and decided that the plaintiff was entitled to recover nothing by reason of this service, and consequently the exclusion of the evidence did the defendant no harm. No other questions appear which we consider it necessary to discuss.

The judgment should be affirmed, with costs of this appeal payable out of the estate.

Smith, P. J., and Bradley, J , concur.


author: Bradley, J. Haight, J.,

text:
    Rochester Printing Company, Appl’t, v. Leslie C. Loomis and Wilbur C. Woodworth, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Banks and banking—Bills, notes and 'drafts—When-one is a bona FIDE HOLDER—WHEN SUBJECT TO EQUITIES.
    The defendants who did business with one Moore, a private banker, delivered to him the draft in question about quarter of four o’clock on the afternoon of December 19. At four o’clock the same afternoon, Moore’s banking office closed, and the next day he made a general assignment. The amount of the draft, less charges for exchange, was by Moore placed to the credit of the defendants in their account with the banker. And the same evening it was mailed by him to the City Bank of Rochester. Before it reached there the latter bank had finally closed its doors and ceased to do business. The draft, however, was placed to the credit of Moore on its books, as of date of December 19, against whom there, in his account, remained a balance of 04,000 after such credit. At the time Moore received said draft he was, and had been for a considerable time utterly insolvent. The plaintiff having a balance to its credit cf $3,000 in the City Bank, was paid by it the morning after its failure such balance in securities, amongst which was this draft. Held, That neither the City Bank nor the plaintiff was a bona fide holder of the draft. That each had received it on account of a precedent debt, and that it was subject to any defense which the defendants could have made to it in the hands of Moore.
    3. Same—Relation between bankers and customers—Implied rep re" SENTATIONS
    The relation between a banker and his customers is in some degree confidential, and the relation that he assumes, in view of the nature of his business, is in practical effect a representation on his part that he is' able to pay the drafts of his customers upon him for an amount equal to their deposits
    3. Same—When representations may be considered fraudulent.
    If the banker is in an irretrievable condition of insolvency, so that he knows or has reason to suppose that he cannot meet the engagements he assumes when he takes the funds of his customers deposited to be placed to their credit, the transaction may involve an implied representation or concealment which characterizes it as fraudulent on the part of the banker.
    4. Same—Representation as to ability to pay.
    The situation represented by the banker is that of ability, founded upon capital under his control, to meet his engagements, and if he has not, his customers are deceived and misled by the appearance he gives to his invitation for patronage
    5. Same—Mere expectations not sufficient to make representations ON.
    Good faith toward his customers requires something more for its support than mere expectation that funds will be supplied to enable him to meet his obligations to his 'depositors. The expectation must be founded upon some right of property or in some legal duty furnishing in a • reasonable degree the right to suppose that his wants will be supplied or that his demands for that purpose can be in some manner enforced. The mere promise of another to carry him is not sufficient. Haight, J., dissenting.
    6. Same—Practice—Right to sue for over-draft of account.
    At the time the draft was deposited with Moore a check was cashed which took inore than the balance of defendant’s deposit, if the draft was not included in it. Held, that the plaintiff was not entitled to recover the amount of such over-draft. That Moore’s assignee was the only one entitled to recover said amount.
    7. Same—Practice—Defense.
    A receiver was appointed of the property of the City Bank. Held, that whatever might be the right to said, draft as between the receiver and the plaintiff that question was not available to the defendant.
    ,8. Same—Credibility of witness—When for jury.
    The defendant called Moore as a witness. Held, that his relation to the transaction involved was such that his credibility was properly a question for the jury notwithstanding the fact that he became a witness at the instance of the defendants. That the jury was not bound to take his testimony, when uncontradicted by other evidence, as true.
    8. Same—Evidence— Admissibility of assignee’s schedules.
    The assignee of Moore made an inventory or schedule because the assignor failed to do so.. And having resigned, another person was substituted as such assignee, who also made a schedule of the assigned property. There was evidence tending to verify the schedules as correct. Held, that the evidence was properly admitted as tending to show Moore’s financial condition. Haight, J., dissenting.

      Appeal from judgment entered upon verdict for the defendant at Monroe circuit, and from order denying motion on case and exceptions for a new trial.

      John Van Voorhis, for app’lt; W. H. Adams, forresp’ts.
   Bradley, J.

The action is upon a draft drawn by the defendants in their firm name of Loomis & Woodworth, upon E. S. Tatem, of Philadelphia, of date December 19, 1882, for $983.63, which it is alleged was at its date by them delivered to William C. Moore, by him endorsed and delivered to Barnard, cashier or order, ánd by the latter endorsed and transferred to the plaintiff', and that it was protested for non-acceptance. The defense alleged is that the draft was obtained by Moore from the defendants by means of false and fraudulent representations and concealment by him respecting his financial condition; and that the plaintiff is not a bona fide owner or holder for value, and the allegations of transfer to and title of the plaintiff are put in issue. Moore had being doing business as a private banker at Victor, N. Y., for about twelve years. The defendants did business with him as such. They made deposits and drew checks upon his bank. This draft was delivered to him about 3:45 o’clock p. m. of December 19, 1882, and at four o’clock the same day his banking, office was closed and Moore’s banking ceased He left Victor, and on the next day made a general assignment for the benefit of his creditors. And the drawee of the draft was by the defendants advised not to accept or pay it. The amount of the draft, less charges for exchange, etc., was by Moore placed to the credit of the defendants in their account with the banker, and it was the same evening mailed by him to the City Bank of Rochester, and before it reached there the latter bank had finally closed its doors and ceased to do business. The draft, however, was placed to the credit of Moore on its books as of date December nineteen, against whom there in his account remained a balance of $4,000 after such credit. At the time Moore received this draft he was and had been for considerable time utterly insolvent, and as the jury were permitted to find, hopelessly so to his knowledge. His liabilities to depositors were $30,000, and altogether, his-liabilities amount to about $100,000, while his assets, as they finally turned out, were about ten per cent of that sum. He was authorized to suppose his condition was better than that, but not that he was solvent. He had been dependent largely upon the City Bank of Rochester for currency to support his banking business, with the president of which bank he had an understanding for aid in that respect; and when that bank failed he was unable to-proceed longer with his banking business. The plaintiff having a balance to its credit of 83,000 in the City Bank, was paid by it the morning after its failure such balance in securities, amongst which was this draft.

The City Bank parted with nothing in consideration of the draft, but merely credited it in Moore’s account It was not nor was the plaintiff a bona fide holder of the draft. By each it was received on account of a precedent debt, and it was subject to any defense which the defendant could have made to it m the hands of Moore. It appears that a receiver was appointed of the property of the City Bank. And it is contended by the defendant’s counsel that as the transfer of the draft by the bank to the plaintiff was in violation of the statute (1 R. S., 591, §§ 8, 9), the latter took no title. But whatever may be the right to it and its proceeds as between the receiver and the plaintiff, that question is not available to the defendant. National Bank v. Whitney, 103 U. S., 99. The trial court submitted to the jury the single question of fact whether or not Moore acted in good faith in the transaction of receiving the draft from the defendants, and held that if he did not the plaintiff was not entitled to recover. In other words, whether it was an honest transaction on the part of Moore in view of his financial condition and his understanding of it, for him to take the drafts from the defendants and assume the responsibility to them which he did by placing its amount to their credit on the books kept by him as a banker. The plaintiff’s counsel took exception to the charge as so made and to the refusal of the court to submit several propositions to the jury as requested, amongst which were the request to charge that to establish the defense the defendant must show that Moore made false representations to them with intent to deceive the defendants, and by that means procured the draft; also, that the answer of the defendants could not be sustained unless the jury should find that they were m fact deceived; also, that representations made to the world were not sufficient; that they must be to the defendants. The court had charged on that subject substantially that a banker, by proclaiming himself as such, and ready to receive deposits of his customers, holds himself out as a man of sufficient means to meet the obligations he in that manner assumes. And if his condition was such, and he knew it, when he received a deposit in the course of business with his customers, that he was likely to be incapable of meeting the-demand for it, he was bound to disclose that situation before he received the deposit; that men assuming that relation cannot be permitted to take the money of their customers when they know that they are unable to repay and likely to be compelled to suspend f that mere insolvency does not necessarily render the receipt of money by a banker fraudulent; but insolvency which is hopeless and irremediable, and renders him liable to shut his doors at any moment, makes it improper for him to continue the business of taking deposits without notice of his situation to customers; that the fact to be found is whether this deposit was received by Moore in good faith under circumstances which rendered it honest on his part to receive it, or whether it 'was dishonest and fraudulent towards his customers, the defendants, to receive it; that if a man is doing banking business fraudulently all the time, it is not necessary that he should entertain a particular fraudulent intent in each particular instance in which he receives deposits; that if this transaction was fraudulent on the part of Moore, the defense is established. And that if it was honest on his part, the plaintiff is entitled to recover. The charge as made covered the ground and stated fairly, we think, the proposition of fact which was for the consideration of the jury and to be determined by them to reach a result.

The relation between a banker and his customers is in some degree confidential, and he, it must be assumed, understands that they make him deposits upon the faith and reliance that he is financially able to pay their drafts upon him for an amount equal to their deposits, and the relation that he assumes in view of the nature of his business as such banker is in practical effect a representation on his part that he is able to do so. And if he is in an irretrievable condition of insolvency, so that he knows or has reason to suppose that he cannot meet the engagements he assumes when he takes the funds of his customers deposited to be placed to their credit, the transaction may involve an implied representation or concealment, which characterizes it as fraudulent on the part of the banker. Anonymous, 67 N. Y., 598; Cragie v. Hadley, 99 id., 131.

The defendants had been customers of Moore in his relation as banker for several months. And their defense did not necessarily depend upon representations expressly made by him to them in respect to his financial condition and ability, but might be implied from the relation he assumed banker, by means of which invitation was extended alike to them and others to open an account and deposit their moneys with him. It is true that deception was necessary to fraud, and unless the defendants were deceived they had no defense; but there is no evidence that they had any knowledge or information when they made this deposit that Moore was insolvent or was not responsible for all the obligations he assumed. And, therefore, in view of the charge as made the court was not required to further charge specifically that they must have been in fact deceived to constitute a defense. It may have been otherwise, if the jury had been permitted to find that the defendants had any notice of the financial embarrassment of Moore at the time the deposit in question was made with him. There seems to have been no error in the refusal to charge those propositions as requested. The court was also requested to charge the jury that if they believed the testimony of Moore that he intended and expected to go on in the business at the time he took the draft, no matter how poor grounds he had for that expectation, if he did so intend honestly, the defense could not be maintained; also, that if his failure was caused by the failure of the City Bank, and he did not know until 7.30 o’clock p. m. of December 19 that he would be obliged to fail, and had no intention of failing up to that time, the defense cannot be sustained; also, that if he honestly believed that Upton was able to and would carry him, although Moore was insolvent and knew it, if he relied upon that belief, he was guilty of no fraud in taking the draft. And to the refusals to charge those propositions respectively exceptions were taken.

Moore had testified that he neard of the failure of the City Bank between 7 and 8 o’clock in the evening, and up to that time he had no intention of making an assignment; that Upton (who was president of the City Bank) was carrying him, and agreed to carry and help him through. The expectation and intention of Moore, founded wholly upon the promise of Upton, resting it in no legal obligation to perform it, may have been a matter properly for the consideration of the jury on the question submitted to them, but it was not necessarily sufficient to reheve Moore from the imputation of inexcusable deception of his customers. It may be that if the City Bank had not failed he would have obtained from it a supply to carry him along, and its failure may, in that view, have caused him to suspend business, and that he believed that he would through Upton be thus relieved.

These circumstances were not wholly excluded from the consideration of the jury. But the court did charge in that respect that a man cannot honestly carry on banking business upon a mere promise of another to carry him without some security for the performance of the promise.

It will be observed that no legal duty had been assumed by Upton to provide Moore with currency to do his business. Good faith towards his customers required something more for its support than mere expectation that funds would be supplied to enable him to meet his obligations to his depositors. The expectation must be founded upon some right of property or in some legal duty furnishing in a reasonable degree the right to suppose that his wants would be supplied or that his demands for that purpose could be in some manner enforced.

If A, without capital, should open a banking office and announce to the public by appearances that he is a banker and proceed to receive the people’s money on deposit which he cannot and does not repay, it can hardly in the legal sense or necessarily be regarded as an honest enterprise on his part merely because B had given him-assurance unsupported by any liability that he would furnish him money as lie should, from time to time, need it.

The situation represented by the banker is that of ability founded upon capital under his control to meet his engagements, and if he has not, his customers are deceived and misled by the appearance he gives to his invitation for patronage. And this deception he has no right to produce whatever may be his hopes founded, neither on capital of his own or upon any personal obligation of another which he has not any power to command or enforce. At all events, whatever may be his hope or expectation under such circumstances he would not necessarily be relieved from the charge of fraud in obtaining moneys which he has failed and is unable to repay.

The request to charge called for more instruction to the jury than the court was required to give them.

It appeared that at the time of the delivery of the draft to Moore, the check of the defendants for $365, was also presented for payment, and paid by him, and. that the defendant’s balance in their account there, exclusive of the draft, was then $180.56 less than the amount of the check.

The court was requested to charge that if Moore paid on the defendant’s check on the strength of the draft, any sum of money at the time of its discount by him, the defense could not be sustained, because it does not appear that the money was returned or its return offered. Also, that Moore was the owner of the draft to the extent of the money he paid the defendants, and that it was good at least for that amount in the hands of any person to whom it passed. And to the refusal to charge those propositions respectively the defendant’s counsel excepted.

If the action had been brought by Moore, it may be seen that the defendants should have refunded to him or offered to pay this excess received from him of the amount of their balance, because the defense is founded upon rescission of the transaction in respect to the draft for fraud. Baird v. Mayor, 96 N. Y., 567; Gould v. Cayuga County National Bank, 99 id., 333.

But the right to restoration was that of Moore only, and passed to his assignee in the event that the delivery of the draft and credit given for its amount are repudiated and did not pass by the transfer made by Moore of the draft.

The defense, if effectual, goes to the draft entire,, and, as the plaintiff is not entitled in any event to the amount advanced by Moore, it is not in a position to assert the failure to return or offer to restore that amount as essential to the defense. So far as appears by the record, the right to that is in Moore’s assignee if recovery upon the draft is defeated. The defense can be supported upon the ground only that the transfer of it to Moore was rendered wholly void by fraud. And, therefore, no right of action for any amount exists upon it. If this view is correct, those exceptions were not weE taken.

The contention that because the defendants caUed Moore as a witness, they cannot assert the incredibility of his testimony, and that so far as it is uncontradicted by other evidence, it must be taken as true, and the exceptions founded upon those propositions are not supported. His relation to the transaction involved is such that his credibility was properly a question for the jury notwithstanding the fact that he became a witness at the instance of the defendants. Becker v. Koch, 104 N. Y., 394; 5 N. Y. State Rep., 688.

There was no evidence to permit the conclusion that the City Bank was a bona fide holder of the draft, and there was no error in the refusal to submit that question to the jury. It was sent by Moore to apply on his account there, and was credited to him accordingly by way of application upon an existing balance against him at the bank. There is no opportunity furnished by the evidence to say that the City Bank parted with any money or assumed any obligation upon the faith of this draft. Nor would the jury have been justified in finding that the plaintiff was a bona fide holder of it. As did the bank, the plaintiff received it on account of a precedent debt, and parted with no security it then had. Phœnix Ins. Co. v. Church, 81 N. Y.. 218; Noel v. Murray, 13 id., 167.

The assignee of Moore made an inventory or schedule because the assignor failed to do so. Laws of 1877, chap. 466, § 1, subd. 5, as amended by Laws of 1878, chap. 318. And having resigned, another person was substituted as such assignee, who also made a schedule of the assigned property. Objections and exceptions were taken to the reception of these schedules in evidence. At the time they were offered and received their admissibility was somewhat questionable, but we think with what then appeared the evidence subsequently introduced sufficiently tended to verify the schedules as correct, and in that view the question presented at the time they were introduced was one of order of proof. When the question of the competency of these schedules was before us in People v. Moore (37 Hun, 84), some of the evidence here, quite material, as bearing upon the correctness of those schedules was wanting, and the remarks there made upon the question are not necessarily applicable here. This evidence was introduced as bearing upon the financial condition of Moore. And he testified that the books from which it appears the schedules were taken and made were his, and accurately kept by him in his banking business, and that they correctly showed the accounts and the state of them up to one o’clock of December 19, 1882.

We have examined all the numerous exceptions not specifically referred to, and think there was no error upon the trial to the prejudice of the plaintiff. And that the verdict is fairly supported by the evidence.

The judgment and order should be affirmed.

Smith, P. J., concurs.

Haight, J.,

dissents upon the grounds that it was error to charge as matter of law that “a man cannot honestly carry on the business of banking upon a mere promise of another to carry him.” Schufeldt v. Schintzler, 21 Hun, 462, 465.

And the schedules were improperly admitted as evidence against the plaintiff. Tyler v. Brock, 68 N. Y., 418; Turner v. See, 57 id., 667; People v. Moore, 37 Hun, 84, 95.


text:
    Susan M. Singleton. Resp’t, v. James Thornton et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1887.)

    1. Promissory note—Action against makers of—Allegations of complaint.
    This action was brought by an endorsee' to recover the amount of a promissory note made by two of the defendants and signed by them as T. and D. Held, that the allegations of the complaint being sufficient to connect those defendants with the instrument so as to make them liable upon it, it was immaterial whether they were partners or whether the name adopted by them represented a firm.
    2. Same—Allegations as to ownership.

      Held, that the averment that the note was endorsed by the'payee to- the plaintiff imported also a delivery.
    3. Same — Action against endorser — Notice of protest—When unnecessary.

      Held, That as to the cause of action against the endorser, protest w^s unnecessary, he having waived notice thereof and being the only endorser.
    4. Same—How frivolous pleadings disposed of—Code Civ. Pro., § 537 —Sufficiency of notice of motion. /
    A five days’ notice of motion for an order overruling a demurrer as frivolous and for judgment thereon, and for such other and further relief as may be just, is sufficient and authorized.

      Appeal from an order of the Erie special term, overruling demurrer to the complaint as frivolous, and ordering judgment for the plaintiff.

      Rufus Scott, for app’lts; Thomas D. Bradford, forresp’t; Geo. U. Loveridge, of counsel.
   Smith, P. J.

The complaint alleges that on 10th December, 1885, the defendants James Thornton and Horace GK Dobbins made their promissory note, whereby, by the name of Thornton and Dobbins, for value received, they promised to pay to the order, of Alfred S. Brown, $500, two months after date, at the First National Bank, Wellsville, with use, and delivered the same to the payee, who endorsed it to the plaintiff, and for value waived notice of protest; that when the note became due it was duly presented at said bank for payment, and payment was then and there demanded and refused. The suit is against the makers and the endorser.

The defendants demur jointly and severally, on the ground that the complaint does not state facts sufficient to constitute a cause of action.

The points on which the contention rests, that a cause of action is not stated against the makers, are first, that it is not alleged that they are partners, or that the name Thornton & Dobbins ” is a firm or other name authorized by the defendants; and secondly, that title in the plaintiff is not alleged, the averment that the note was endorsed to him by the payee, not being sufficient without an allegation that it was also delivered.

These positions are clearly frivolous. The allegations that the defendants made the note in the name designated, sufficiently connects them with the instrument, to make them liable upon it, and it is immaterial whether they were partners, or whether the name adopted by them represented a firm. The averment that the note was endorsed by the payee to the plaintiff imports a delivery. Bank of Lowville v. Edwards, 11 How. Pr., 216; 1 Abb. Pr. and Plead., 228-9, notes f. and g., and cases there cited.

As to the cause of action against the endorser, protest was unnecessary, he having waived notice thereof, and being the only endorser. The averments of presentment for payment, demand and refusal were enough to charge him, he having waived notice of protest, and a formal protest would have been an unnecessary act. Indeed, it may be questioned whether a formal protest, in addition to demand of payment, refusal and notice is necessary in any case, to change an endorser. Coddington v. Davis, 1 Comst., 186.

The point is made that the plaintiff’s motion was unauthorized. The notice of motion was a five days notice It was an “order overruling the demurrer herein as frivolous, and for judgment thereon, and for such other and furthei relief as may be just.” It is now contended that eight days notice should have been given. Section 537 of the Code provides that if a demurrer is frivolous, the party preju dicial thereby, upon a notice of not less than five days, may apply to the court for judgment thereupon, and ]udg ment may be given accordingly. We think the notice was sufficient to indicate that relief was intended to be asked for under the section cited, and that the order made was authorized thereby and regular.

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

Haight and Bradley, JJ., concur.


text:
    The People ex rel. Lindsley M. Gould v. The City of Rochester.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Weights and measures — Sealing of—Within police regulations —Laws 1880. chap. 14, § 40, sued. 28—Rochester (city of)
    It is provided by an ordinance of the city of Rochester that it shall be the duty of the city sealer, and he is thereby authorized to inspect and examine, at least once in every six months thereafter, and as much oftener as he thinks proper, all weights and measures used by any corporation, merchant retailer, trader or dealer, for weighing and measuring; and such weights and measures shall be selected at the place or places where the same are kept for use, but if such weights and measures shall be found not conformable to the standard they shall be sent by the owner or owners thereof to such place in said city as the sealer shall designate for the purpose of being sealed, within three days after such owner or owners shall be required to do so. This ordinance purports to have been passed November 80, 1880. By Laws 1880, chapter 14, section 40, subdivision 28, the common council is empowered to make such orders and by-laws as it shall deem proper and necessary, and to make ordinances within the city for the purpose, among others, of requiring every merchant, etc , to cause their weights and measures to be sealed by the city sealer and subject to his inspection, and that they may impose penalties for any violation of any such ordinances. Further provision is also made for the appointment of a city sealer, and powers are given him in the matter. Held, that regulations in this regard were in the nature of police regulations, and «dearly within the legislative power which might also be conferred upon municipal corporations to provide by ordinances a system, and for its execution to require within their respective limits conformity to the established standards of weights and measures by dealers who have occasion to use them in their business.
    2. Same—Regulations as to sealing must be reasonable—Presumption AS TO ACTS DONE BY OFFICER IN DISCHARGE OF HIS DUTY.

      Held,, that such ordinances must be reasonable in their provisions, but that the provision leaving it discretionary with the officer how much oftener than the times absolutely required he should make such inspection was reasonable, as it would not be presumed that he would be actuated in so doing by any other motive than a desire to execute the duties of his position.

      3. Same—Regulations as to sealing—Held reasonable and lawful.

      Held, that the provision authorizing the removal of such weights and measures for their adjustment and correction was reasonable and lawful.
    4. Ordinance—Provisions not affected by validity of others on WHICH THEY ARE NOT DEPENDENT FOR THEIR EFFECT.

      Held, that whatever view might be entertained of those provisions it did not affect the validity of such other provisions of the ordinance as were not dependent on them for practical application and effect,
    8. Same—Prima facie evidence of ordinance and proper passage.

      Held, that a copy of such ordinance purporting to have been passed November 30, 1880, certified by the clerk of the city, with the seal of the corporation annexed, was competent and prima facie evidence of the ordinance and its proper passage.
    6. Same—Evidence—Weight of.
    The city clerk testified on a certiorari taken to review the proceedings of a police court imposing a penalty prescribed by the above mentioned ordinance “that the ordinance produced and offered in evidence was a true copy of a penal ordinance of the city of Rochester, relating to weights and measures, enacted and adopted by the common council, on November 30. 1880.” On his cross-examination, it was disclosed that the only entry in the minutes of the council relative to that subject, was one noting the fact that the penal ordinances were adopted on that date, and setting forth the vote taken. Held, That the fact that this was the only entry relative to penal ordinances did not necessarily overcome the evidence that such ordinances were in fact passed that day.
    Certiorari to the police justice of the city of Rochester to review the proceedings and. judgment of the police court convicting the relator of violation of an ordinance of the city, and for the penalty prescribed by it for such violation.

      Thomas & Desmond, for relator; Henry J. Sullivan, for def’t.
   Bradley, J.

The relator was arrested upon a warrant issued against him and taken before the pohce court of the city of Rochester, upon the charge that he had violated a city ordinance which provided that: “Section 3. It shall be the duty of the city sealer, and he is hereby authorized to inspect and examine at least once in every six months hereafter, and as much oftener as he thinks proper, all weights and measures used by any corporation, merchant, retailer, trader or dealer for weighing or measuring. Such weights and measures shall be inspected at the place or places where the same are kept for use, but if such weights and measures shall be found not conformable to the standard, they shall be sent by the owner or owners thereof to such place in said city as the sealer shall direct, for the purpose of being sealed, within three days after such owner or owners shall be required to do so by said sealer. If any such corporation, merchant, retailer, trader, or dealer, shall refuse to exhibit any such weights and measures to the said sealer when required to do so by him, or in any manner obstruct such sealer in the performance of the duties hereby enjoined upon him, or shall refuse or neglect to send any such weights or measures for the purpose of being sealed as aforesaid, within the time and to the place aforesaid, he shall forfeit and pay a penalty of ten dollars for each offense.”

The relator was a retail grocer in the city. And the particular violation charged against him and which the evidence tended to prove was that, on July 20,1886, the sealer went to his store for the purpose of examining and sealing his weights and that the relator by force prevented him from doing so, and refused to exhibit to the sealer his weights after he was requested by him to do so. This ordinance purports to have been passed November 30, 1880. And the power to pass ordinances upon the subject is given by the statute, which provides: “The common council * * * may make such orders and by-laws * * * as it shall deem proper and necessary. And further it shall have power to make * * * such ordinances, by-laws and regulations as it may deem desirable within the said city for the following purposes * * * To require every merchant, retailer, trader and dealer in merchandise or property of any description, which is sold by measure or weight, to cause their weights and measures to be sealed by the city sealer, and to be subject to his inspection, and may impose penalties for any violation of any such ordinance.” Laws of 1880, chap. 14, § 40, subd. 28. And may, for violation of its ordinances, prescribe a penalty not exceeding $150, etc. Id., § 43. The statute also provides for the appointment of a sealer for the city (id., §§ 6, 8), and that he shall possess the like powers, be subject to the like obligations and receive the same fees as sealers of weights and measures of the several towns of the state. Id., § 78. The subject of the regulation df the standard of weights and measures and of requiring dealers and traders to conform to it and the appointment and election of officers for that purpose have been matters of legislation in this state from an early day. Laws of 1784, chap. 25; Laws of 1813; 1 R. L., 376; 1 R. S., 606; and is recognized by the constitution, article 5, § 8. It is done for the benefit and protection of the public, and is in the nature of police regulations, and clearly within the legislative power which may also be conferred upon municipal corporations to provide by ordinance a system, and for its execution to require, within their respective Emits, conformity to the established standards of weights and measures by dealers who have occasion to use them in their business. Buffalo v. Webster, 10 Wend., 99; Stokes v. New York, 14 id., 87. The ordinances must be reasonable in their provisions.

It is contended that the one in question is unreasonable, because it provides not only that the sealer may every six months, but “as much oftener as he thinks proper,” inspect and examine the weights and measures. The objection made is to this discretionary power sought to be given to the officer, to inspect and examine as often as he may think proper to do so. The purpose of the statute, the ordinance, and of the creation of the office and furnishing the officer is the protection of the public by seeing that the measure in weight and bulk, by which such sales and purchases are made, correspond with the standard, and, therefore, this matter is placed under the supervision of this officer, and power is necessarily vested in him to accomplish the object in view. To render the sytem and its purpose effectual it may be quite necessary that he should have this power given to him in that respect. And the time and circumstances which may require inspection and examination of the weights and measures of a dealer is very properly to some extent left to his judgment. His duty requires it every six months. Attention may be required at intermediate times to a greater or less extent, and, when he deems it necessary, his authority enables him to see that the law is not violated intentionally or by mistake. It can-. not be assumed that, in the exercise of the power devolved upon him, the officer will be governed by any motives other than such as, in his judgment, the discharge of his duty requires. It is also urged that it was not in the power of the common council to embrace, within the powers given the sealer, authority to require the merchant to send his weights and measures to such place in the city as the officer may direct. It will be observed that this provision becomes applicable only in the event that they are not in conformity with the standard, and then they are to be sent to such place to be brought into such conformity and sealed. This may properly require something done which cannot conveniently be performed at the store, and to do which the officer may have a suitable place. Section 78, before re-> ferred to, of the statute applies the powers'and obligations of the town sealers to the officer in question. By reference to the powers and duties possessed by them it will be observed that it is contemplated that when weights and measures in use do not conform to the standard, the sealer will or may make them so correspond and seal them. 1 R. S., 610, § 28.

It is evidently with that view that the sealer may deem it advisable to provide a place for that service. And we see in such provision no impropriety, assuming as we do, that the officer at all times when engaged in official duty will act in good faith. It is quite certain that when the implements for measure and weight do not correspond with the requirement, the owner has no lawful use for them in his mercantile business. But these criticized provisions of the ordinance furnish no cause of complaint for the relator. It does not appear that the time he was requested to exhibit his weights for inspection was within the period of six months of any previous examination by the officer, or that his alleged' violation of the ordinance was founded upon refusal to send the weights to any place for correction and sealing. And whatever view may be taken of those it does not affect the validity of the other provisions of the ordinance, as they are not dependent upon each other for practical application and effect. Rogers v. Jones, 1 Wend., 237; People v. Briggs, 50 N Y., 553, 566. It is also contended that this alleged ordinance never became effectual as such, because not passed by the common council, or not in the manner requisite for such purpose, A copy of this, with other sections, all of which, numbered 1, 2, 3, 4 and 5, Purporting to have been passed November 30, 1880, certied by the clerk of the city, with the seal of the corporation annexed, was offered and received in evidence in the police court. This was competent and prima facie evidence of the ordinance and its proper passage. Laws 1880, chap. 14, § 44. The several sections related to the one subiect of the regulation of weights and measures.

The city clerk was called asa witness, and testified “ that the ordinance produced and offered in evidence was a true copy of a penal ordinance of the city of Rochester, relating to weights and measures, enacted and adopted by the common council on November 30, 1880.” And on his cross-examination he said he had the original minutes of the council of its meeting of November 30, 1880, and that he found an entry, which he read, in these words: ' ‘ The penal ordinances were adopted by the following vote,” to which (is added “ Yeas,” followed by the names of sixteen persons, with none in the negative.

The'witness'further says: “This is the only entry which I find relating to penal ordinances.” Upon this the relator’s counsel objected to the reception of the certified copy in evidence, upon the ground that it appeared from the clerk’s minutes of the proceedings of the common council on November 30, 1880, that no such ordinance was passed.

It is difficult to see the force claimed by the counsel for the relator for this evidence of the clerk and of the objection taken. The entry of the vote of the common council and of its effect, as declared, was that penal ordinances were adopted on that day. And it will be assumed that it was properly done in support of the performance of official duty until the contrary appears. The book itself was not put in evidence, and it is not before us to show what it did contain, and we have no proof in that respect, except that given by the clerk. The fact that the entry as read was the only one he found there relating to penal ordinances," does not necessarily overcome the evidence that such ordinances were in fact passed that day. The court found against the relator on the fact. And the party alleging error must clearly establish the foundation for its support, as all reasonable intendments go to sustain the conclusion and judgment of the court which is in review.

There seems to be no other question requiring consideration.

The judgment should be affirmed:

Smith, P. J., and Haight, J, concur.