author: Peckham, J.

text:
    Burr Mattice, Resp’t, v. Henry Wilcox, App’lts.

      (Court of Appeals,

      Filed December 10, 1895.)

    1. Libel—Attobney at law.
    . A charge in a publication which accuses an attorney at law of incapacity to perform the ordinary duties appertaining to the practice of his profession in a certain class of actions in regard to which he has assumed knowledge and capacity to reasonable extent by taking such cases as a class and defending them as part of his professional duties, is equivalent to a charge of general incapacity in his prof ession and is actionable as libelous per se, without allegation of proofs of special damage. '.

      2. Same—Innuendo—Different meanings.
    ■ Where the words actually used are in all possible senses actionable per se,

    though capable oí different constructions, some of which are graver in their nature than others, an innuendo may he made use of which charges the graver meaning, and then whether the language is so used as understood will he a question for the jury.
    3. Same.
    But, in such case, it is not error of which the defendant can complain if the court charges the jury that the language has the milder meaning only and does not include the graver meanings, instead of submitting to the jury all the meanings charged by the innuendo.
    4. Same—Mitigation.
    Mitigating circumstances are those which, while not proving the truth of the charge, do yet tend in some appreciable degree toward such proof and thus permit of an inference that defendant was not actuated by malice in his charge ; but they must be of such a nature as to show that defendant, though mistaken, believed the charge to he true when it was made.
    5. Same—Privileged communication.
    Tiie fact that defendant did not devote his whole publication to charges against the plaintiff and that the balance of it was upon general village subjects to which he was justified in referring, does not render the whole publication proper, nor is the whole publication thereby made a fact to be taken into consideration as a mitigating circumstance in estimating the eharacter of the charges against the plaintiff.
    6. Same.
    In such action, a charge that, as a result of the words being undefended and unmitigated, the jury must give some damage on account of it, and the amount thereof rested in their good sense and discretion, is correct.
    7. Same.
    If the court holds a communication privileged, then the question of good faith in its publication,-—of actual malice as distinguished from that which is presumed from a defamatory publication, and also belief in the truth of the statement, are all matters for the consideration of the jury.
    8. Same—Malice.
    Privileged communications are the exception to the general rule as to malice, and Jtlie burden rests with the plaintiff to show that the communication in question is within the exception.
    - 9. Same.
    Though a person has a right at.all times to communicate publicly by speech, or in writing, with the citizens of a municipality regarding the general condition of municipal affairs, such occasion does not excuse him in making a personal and defamatory charge against the character of another, nor is such a charge privileged.
    10. Same—Meaning—Submission.
    In an action for libel, the submission to the jury of the question whether the alleged libelous language does not have a meaning, of which it is capable, and which is not strained or unnatural and which if found is declared by the court to he actionable, is not rendered erroneous by the fact that the language is susceptible also of an innocent meaning where such innocent meaning is presented to the jury to find under an instruction that if they found such to be the real meaning of the article, it was not actionable and the plaintiff was not entitled to any damage by reason of its publication.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying defendant’s motion for a new trial.

      This is an action to recover damages for an alleged libel published by the defendant of and concerning the plaintiff.
    The publication was made by the defendant in the form of a circular which he procured to be printed and which he caused to be circulated among the citizens of Oneonta just prior to a charter election for trustees of the village. The plaintiff was an assessor of the village, and being an attorney at law had been frequently employed by the village authorities to attend to its law business and to defend suits brought against it to recover damages by reason of the alleged negligence of the village agents in caring for the streets. Judgments had been obtained against the village in some such suits. The following is the circular. Paragraphs two and eight are the only ones which concern the plaintiff.
    “ How to Make Business Good in Oneonta, N. Y.
    “No. 1.- Oneonta, N. Y., February 1, 1890.
    “1st. Bond the town for $11,000 to build a bridge over the river.
    “2d. Make Burr Mattice Attorney for the village so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village.
    “3d. Yote $4,000 every year for 31 electric lights.
    “4th. Pay the Water Company $30 each for 100 or more hydrants, for each and every year.
    “5th. Bond the village every year for $20,000.
    “6th. Yote to bond and pave.
    “7th. Have the trustees levy the full two per cent, because the latu allows it.

    “8th. Elect Burr Mattice and Henry Potter assessors to put up the valuation so .that the trustees can rob the taxpapers on the two per cent. levy.
    “9. To please the trustees, vote all the special taxes you can over and above the two per cent that the charter permits.
    “10. Mortgage the village with six fool trustees to throw away moneys extorted from the taxpayers.
    “11th. If any man has the manhood and courage to expose the weakness or rascality of the trustees, or any one in office, screen, conceal, cover up, divert the attention of the people from • the wrongdoers, have him called a crank a chronic growler, and ‘ ought to be despised by every man, woman and child in the village.’
    “And by the way, what Oneonta needs most at the present time is one able, honest, and independent newspaper, that will defend the poor mortgaged taxpayers of this village.
    “ Henry Wilcox”
    A verdict for plaintiff having been affirmed at the general term, the defendant has appealed here, and his counsel now argues several propositions of law which it is claimed should be .decided in defendant's favor and which should secure a reversal of the judgment against him. Several of them are referred to in the following opinion.

      Isaac H. Maynard, for app’lt;

      Alfred C. Tennant and Douglass W. Miller, for resp’t.

      Aff’g'54 St. Rep. 902.

   Peckham, J.

First In our judgment the trial court made no mistake in charging the jury that the words of the second paragraph upon their face were actionable, and that the only question for them to determine upon that branch was one of damages. The learned judgment said/jthere was no ambiguity about the language; that the meaning- which everybody reading it would draw from it was the incompetency and incapacity of the plaintiff as an attorney to perform the duties of the attorney of the village and that it attacked the plaintiff in his professional capacity, and nothing remained for the jury but to assess the damages. The counsel for the defendant argues that this was error, for the reason that the language is, at least, capable of two different meanings, one of which is not actionable, and the question should have been left to the jury to say in which sense the language was used by the defendant. He says that it was a question for the jury whether the defendant intended tó or did charge a lack of professional skill or ability generally, or only a lack of it in the particular case or •cases referred to.

The language used by the court in Foot v. Brown, 8 Johns. 63, is cited, to the effect that the law only gives an action for words that affect a man’s credit in his profession as charging him generally in his profession with ignorance or want of skill, ora want of integrity, either in the general or in particular. To the same effect are cited the cases of Lynde v. Johnson, 39 Hun, 16; and Cruikshank v. Gordon, 118 N. Y. 178; 28 St. Rep. 784. The last two cases were those relating to surgeons in respect to particular cases treated by them. The case in Hun was held proper to be submitted to the jury for its decision as to the meaning of the language used, whether it meant to charge ignorance in general, or merely with a want of that proper care and skill in ascertaining the remedy required in the particular case. The Gruikshank case was one where it was held that the language used did impute general ignorance of medical science, and so was actionable per se. Other-cases to like effect were cited by counsel in his exhaustive brief in this case. The complaint herein alleges no special damage and none was proven. If the words used are capable of the construction contended for by counsel for the defendant, then he says, that as no allegation was made and no proof given of any special damage, the question as to the sense to be given to the language was for the jury.

The cases above mentioned and the others cited by the counsel • do not as we think cover this case.. •

The language used by the court must be looked at with reference to the facts of the case wherein it is employed. Thus, in the case of Foot v. Brown, supra, an action of ejectment had been brought by the plaintiff, an attorney, for his client, and the words used by the defendant only charged plaintiff with negligence or want of skill in the particular ejectment suit mentioned, and such a charge was held to necessitate an allegation and proof of special damage to render it actionable. The court said there was not a case in the books where an action had been held to lie for charging a professional man with ignorance in a particular case. Continuing, the learned court said that “ there was no physician, however eminent, who is not liable to mistake-the symptons of a particular disease or any attorney who may not misunderstand the complicated nature and legal consequences of a particular litigation.’’ Would it npt, however, be actionale per se to say of a physician to a “lying Hospital,” that he was ignorant of the first principles of obstetrical practice? Or of a medical superintendent in an insane hospital, that he was entirely incapable of properly treating a case of insanity? Or of a lawyer devoting himself to cases involving the law of patents, that he was-an ignoramus so far as the law of patents was concerned ? True, the doctor or the lawyer might be capable in other branches of the profession, and the words suggested do not refer to his general incompetency as a physician or lawyer in all of those branches, and yet it would seem as if there could be no fair doubt that such words would be actionable per se. They refer to general incapacity or ignorance in that particular branch or sphere of professional labor chosen by such doctor or lawyer. The plaintiff in this case-had been frequently counsel for the village of Oneonta. In such an employment it would almost necessarily (as in fact it did) happen that, among others, cases of negligence would arise and it-would be the duty of the counsel employed by the village to defend such suits. A general incapacity to properly perform the duties of defending that class of cases seems to be, under such circumstances,' equivalent to a general incapacity to properly discharge the duties of his profession. Those duties are, in these circumstances, to try such cases, and he assumes a responsibility in taking such a general class of employment to discharge such duties with ordinary care and capacity. A charge which accuses him of incapacity to perform the ordinary duties appertaining lo> the practice of his profession in such cases is of so general a nature as to come within the reason if not the very letter of the rule as to-general incapacity. It is not incapacity as to a single case or a. single litigation. It is incapacity as to a general class of actions in regard to which he has assumed knowledge and capacity to a reasonable extent by taking such cases as a class and defending them as a part of his professional duties.

The words actually used in the so-called second paragraph of" this circular amount at the least to a charge of general incapacity to defend negligence cases, and it is that very class, among others, that the plaintiff had held himself out as capable of defending when accepting the employment of the village to act as its attorney or counsel in cases of this character and in defending such cases. The language used in this paragraph is of a character to-make the inference a necessary one that action against the village-having no real merit on the part of the plaintiffs would’ end in-, larger verdicts in their favor resulting either from incapacity on the part of the counsel for the village or else from a lack of integrity in making the defense. The trial court did not submit to the jury to find the latter possible construction, but simply said that the language necessarily implied lack of capacity. The defendant has no right of complaint if the more serious construction were not submitted to the jury and it was confined to the less serious-one. In Moore v. Francis, 121 N. Y. 199; 30 St. Rep. 467, it is said that words that affect a man in his trade or occupation and which tend to prejudice him therein are actionable. To confine an accusation of incapacity to a particular case, the courts hold, does not tend to prejudice a man in his profession without proof of special damage, but it surely must tend to so prejudice him in a case where "the accusation is want of capacity to defend a class of cases which the attorney is in the habit of attempting to defend, of holding himself out as capable bf defending, and where he has accepted employment from a client, many of those cases are of that description.

It is also alleged that the plaintiff, in his complaint, set forth the meaning of the language in the second paragraph by means of an innuendo, which alleged that the defendant meant to charge the plaintiff with incapacity, corruption, dishonesty and malpractice-in his profession. The defendant claims that the plaintiff must be held to proof óf the correctness of that charge, and whether it. was or was not proved was a question for the jury, and that the jury should not have been permitted to find for the plaintiff upon a naked finding of incapacity, without the further finding that the language was intended to and did include a charge of dishonesty. If the words actually used were in all possible senses actionable per se, although capable of different constructions, some of which were graver in their nature than others, an innuendo might be made use of which charged the graver meaning, and then whether-the language was so used or understood would be a question for the jury. It would not, however, be'error of which the defendant, could complain, if, under such circumstances where an innuendo-had been so used, the court should declare in its charge to the jury that the language meant incapacity, and did not include dishonesty or malpractice or corruption. That the jury was confined to the milder meaning of the language used is surely no ground of error for the defendant. In such case the innuendo may be. disregarded, the same as in cases where the language is plain and. unambiguous. Turton v. N. Y. Recorder Co., 144 N. Y. 144; 63 St. Rep. 69. We hold that, in any possible construction which could properly be given to the words used, they were actionable per se. The court did not err in its charge to the jury upon the point under consideration.

Second. The defendant also claims that the court erred in’ charging that the second paragraph was undefended and unmitigated and in permitting the jury to find exemplary damages.

As to being undefended we think the proof is clear that no-justification was made out, and there was no denial of the publication. There was no error in so charging.

Nor do we think the court erred as to mitigation. The defendant’s claim is that the jurv should have been allowed to consider,. in mitigation of the charge, that the plaintiff was incompetent (as already spoken of), the various facts set up in the answer, and in regard to which evidence had been given, such as the impending election of trustees for the village; that plaintiff had been an official of the village (assessor), and during his incumbency great extravagance had prevailed; judgments had been obtained against the village while plaintiff was its attorney; that the charge was but part of a circular distributed to the taxpayers arrainging the plaintiff and other officials and criticising the general conduct of ■affairs and published for the purpose of arousing public attention to these matters, and that defendant was himself a taxpayer and resident of the village and interested in the affairs thereof.

Mitigating circumstances are those which, while not proving the truth of the charge, do yet tend in some appreciable degree towards such proof and thus permit of an inference that defendant was not actuated by malice in his charge. They must be of such nature as to show that defendant, though mistaken, believed the charge to be true when it was made. The mitigating facts must be connected with or bear upon the defamatory charge. Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 id. 67; Hamilton v. Eno, 81 id. 116. Mitigating circumstances under the old system, when a justification was set up, could not be proved because they did not amount to a justification. The reasons are •stated in the cases in 11 and 12 N. Y. supra. There have been circumstances adrhitted as mitigating where from prior acts or publicationt of the plaintiff the feelings of defendant have been exasperated. They do not apply here. The circumstances must otherwise be such as tend to disprove, malice by showing that the words were spoken in the honest belief that they were true, with some reason for such belief and without actual malice or evil design. Bisbey v. Shaw, supra. With this definition as to what are mitigating circumstances, we do not perceive how they can be claimed to have been proved in this case. Nothing that was proved can be fairly or reasonably said to tend to disprove malice by showing the words were spoken in the honest belief of their truth, or that there was the least reason for such belief. In other words, the facts proved had no natural tendency to induce belief that the plaintiff was incompetent or that defendant had reasonable foundation for that belief arising from those facts when he wrote the circular, or even that he had such belief at all.

The fact that the defendant did not devote his whole circular to charges against the plaintiff, and that the balance of it was upon general'village subjects which he was justified in referring to, does not render the whole publication proper, or is the whole publication thereby made a fact to be taken into consideration as a mitigating one in estimating the character of the charges against the plaintiff. The judge added to his charge on this subject, that as a result of the words being undefended and unmitigated, the jury must give some damage on account of it, and the amount thereof, he told them, rested in their good sense and discretion. We think he was right in his charge. He confined the jury upon a question of exemplary damages to consideration of facts showing the existence of special malice as distinguished from a mere presumption of malice arising from the publication, and he said to the jury that the amount of these exemplary damages would be larger or smaller or not rendered at all according as the jury should find the existence and extent or absence of this malice.

Taking the whole charge, we think the jury were properly directed. They were-to give some damage because the second article was undefended and unmitigated; the amount was reasonable in their discretion as men of good sense and fairness, and so it was left. As to the exemplary damages, the subject was also submitted to them reasonably and with good judgment, and we -can see no error in the matter of that submission.

Third. The defendant claims that the whole communication was privileged, as also was each separate paragraph relating to the ■plaintiff. Proper requests were made for instructions to the jury to that effect, and exceptions duly taken to the refusal of the court •so to charge. The question as to when a defamatory article is privileged is in the first instance one of law. Klinck v. Colby, 46 N. Y. 427; Hamilton v. Eno, 81 id. 116; Byam v. Collins, 111 id. 143; 19 St. Rep. 581. If the court hold a .communication privileged, then the question of good faith in its publication, of ■actual malice as distinguished from that which is presumed from -a defamatory publication, and also belief in the truth of the statement, are all matters for the consideration of the jury. The court is to first judge as to the claim of a privileged publication, and the ■question is whether the circumstances of the publication were such as to repel the. legal inference of malice and to throw upon the plaintiff the burden of offering some evidence of its existence beyond the mere falsity of the charge, Lewis v. Chapman, 16 N. Y. 369, 373, per Selden, J. Where one has an interest in the matter published, or a duty, even though not of a legal nature but one only of a moral or social character and of imperfect obligation, and there is a propriety in the publication, and the party makes a statement in good faith to another who has some similar •duty or interest, or to whom a like propriety attaches to. hear or read the utterance, such a publication is privileged, and the questions of actual malice, good faith, etc., must then be submitted to the jury. Gases above cited. Privileged communications are the -exception to the general rule as to malice, and the burden rests with the plaintiff to show that the communication in question is within the exception. Byam v.. Collins, supra. The defendant had the right at all times to communicate publicly by speech, or in writing, with the citizens of Oneonta regarding the condition of municipal affairs. The approaching election for the trustees was a peculiarly appropriate occasion for it. But the occasion did not excuse the defendant in'making a personal and defamatory charge against the character of the plaintiff, nor was such a charge privileged within the meaning of the term as already defined. Hamilton v. Eno, 81 N. Y. supra. The defendant could not thus attack in an aspersive manner the private or professional character" of the plaintiff; certainly not unless there were some fair or plausible reason for thus including and attacking it in the course of proper and appropriate criticisms concerning the manner in which the affairs of the village had been conducted. We do not think the proof or circumstances show there was any such reason; nor can it fairly or appropriately be founded upon any or all of the facts, proved by the defendant. If an individual choose to attack an officer and charge him with incompetency in his professional character and criminality in his office as assessor (if the jury should construe his language), he must be prepared, when brought, into court, to prove the truth of his charge.

The court committed no error in its ruling on this subject.

Fourth. We are also of the opinion that the court rightfully-submitted the construction of the eighth paragraph to the jury. The trial court, left to the jury the question whether the language-did'not mean that plaintiff as assessor combined with other officers-to make an improper and illegal valuation in order to carry out an improper and illegal waste of the taxes of the people, and the-jury were instructed that if such were the meaning of the language it was actionable.

The counsel for the defendant criticises this charge because he-says the language is incapable of any such meaning, and also because the plaintiff in his complaint, by way of innuendo, alleged that defendant meant by this language to charge plaintiff with corruptly and dishonestly entering into an unlawful and collusive-agreement with the board of trustees of the' village to unlawfully and corruptly increase the assessed valuation of the village forth e purpose of extorting money from the taxpayers of the village. The defendant’s counsel claims that the plaintiff is bound by the allegations in his complaint as to the meaning' of the words and he cannot be permitted to reject such meaning on the trial and resort to another one, and he cites Folltard’s Starkie on Libel,. Wood’s notes, page 482, sec. 446; Hew ell on Defamation, etc., page 629, sec. 39. It is then claimed that the construction submitted to the jury is wholly different from that complaint, and-that if by any possibility the language could be construed to mean, as the court permitted the jury to find, it certainly could not be-construed to mean any such thing as alleged in the complaint, and therefore, the submission of the construction offered by the court-was error. In the first place, we might say this question was not raised by any exception to the charge or by any request to charge.

The exception raises the question generally as to the propriety of submitting the construction to the jury at all, and the defendant requested a charge that the language used was not actionable. The attention of the court was never drawn to the specific objection now made, that the judge was submitting a construction to. the jury differing in its means from that alleged in the complaint. The possible construction actually submitted to the jury for it to find or riot, while differing somewhat in language from that used, in the complaint, is yet in substantial accord with it, sufficiently so,.at any rate, to render it most important to have the defendant, call the attention of the court to the alleged difference, and thereupon make a request to charge the jury in accordance with the defendant’s contention, when the court might thereupon alter or enlarge or limit the meaning of the language already used by him. We think also the article is capable of the construction submitted to the jury to find. It is not strained or unnatural, and the fact that another and innocent meaning might also be attached to the language is not a conclusive answer. That innocent meaning was presented to the jury to find, and it was instructed that if it found such to be the real meaning of the article, it was not actionable and the plaintiff was not entitled to any damage by reason of ’its publication. In all this there was no error.

' Many other questions were argued and we have examined them but we do not think there has been any error shown, and the judgment should, therefore, be affirmed, with costs.

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

Judgment affirmed.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    National Bank of Auburn, Resp’t, v. Edwin R. Dillingham, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed December 10, 1895.)

    1. Coepobations—Stock—Liability—Dibbctobs.
    When the obligation of members of a corporation is determined by the perfect creation of an artificial, person, capable in law of acting and contracting for itself, the primary or common law liability of persons associated together in some enterprise as partners is terminated, and the liability of the trustees rests wholly upon the statute which creates liability, in the nature of a penalty, for disobedience to its commands. So held, in the case of a personal liability imposed by the provisions of section 24 of the stock corporation law (chapter 564 of 1890, as amended by chapter 688 of 1892).
    3. Same.
    The fair construction of the statute is that it imposes a liability upon the trustees, creating or assenting to debts in excess of the capital, to the extent of such an excess, not for the benefit of any, particular creditor, but for the benefit of all, and their liability is in equity a fund to which all the creditors may refer for the satisfaction of such debts as the corporation itself fails to pay, to be shared in by all in proportion to the debt remaining unpaid.
    3. Same.
    Such liability must be enforced in equity in a suit where all the creditors and the corporation itself are parties, or represented, where an accounting can be had, all the facts ascertained and the equities adjusted.
    4. Same. .
    The liability is secondary, to be resorted to only after the usual remedies against the corporation itself have been exhausted.
    •5. Same.
    The bare fact that, at some time before an actien has been commenced, an injunction was granted upon some reason, is insufficient to excuse the omission to proceed against the corporation, where there is no allegation of fact in the complaint which will enable the court to say that the injunction was a valid legal obstacle in the way of a suit against the corporation or that it was in force at the time the action was commenced.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order which affirmed an interlocutory judgment entered upon a decision of the court at special term overruling a demurrer to the complaint.

      Nelson S. Spencer, for app’lt;

      Charles I. Avery, for resp’t

      ‘Rev’g 68 St. Rep. 147.,

   O’Brien, J.

This action was "brought to recover four promissory notes, aggregating $20,000, made by the Auburn Woolen Company, a manufacturing corporation created under the act of 1848. ' Tlie plaintiff brings, the action in its own behalf against the defendants, who are the trustees of the corporation, and who, it. is claimed, are liable in an action at law for the amount of the notes, upon the ground that, before any of them were made, other debts had been created by the corporation which equaled and exceeded, the amount of its paid-up capital stock, and that the trustees, by assenting to the making of the notes in this action, became liable-under the statute -to the plaintiff for the amount and interest. The corporation itself is not made a party, nor is it alleged that any judgment has been obtained against it on the notes, or any suit commenced for that purpose, or that it is insolvent, or that any proceedings for dissolution had been commenced. One of the defendants demurred to the complaint on the grounds, among-others: (1) That there is a defect of parties, in that the other creditors of the company, and the company itself, are not parties, to the action, and (2) that the complaint does not state facts sufficient to constitute a cause of action. The courts below have overruled the demurrer and held that the action was well brought. On the argument in this court, the learned counsel for the plaintiff has insisted upon some technical objections to the consideration of the questions decided, based mainly upon the contention that the- necessary facts do not appear upon the face of the complaint, to enable the defendant to raise the questions by demurrer. The courts below disposed of the case upon the merits, and we think that the complaint was' sufficiently comprehensive to enable "the defendant to present all the questions by demurrer. The plaintiff’s contention is that each creditor of such a corporation who-holds a debt, created by the trustees .or with their assent, in excess of the paip-up capital stock, may maintain actions at law against, the trustees to recover such debt without any recourse to the corporation itself and without reference to any other creditor. The original statute which authorized the creation of this class of corporations imposed a liability upon the trustees in case they assented to the contracting of debts in excess of the paid-up capital stock, as will be seen from the following provision. Laws of 1848, cháp. 40, § 23:

“ If the indebtedness of any such company shall at any time exceed the amount of its capital stock, the trustees of such company assenting thereto shall be personally and individually liable for such excess to the creditors of the company.”

In the recent revision of the statute, now known as the Stock Corporation Law (Laws of 1890, chap. 564, as amended by chap. 688, Laws of 1892), this provision was repealed and the following section, upon which this action has been brought, was substituted in its place:

“ § 24. No stock corporation, except a moneyed corporation, shall create any debt, if thereby its total indebtedness not secured by mortgage shall exceed the amount of its paid-up capital stock, and the directors creating or consenting to 'the creation of any such debt shall be personally liable therefor to the creditors of the-corporation. If bonds or other obligations of the corporation, secured by mortgage, are issued in excess of the amount authorized by law, or in violation of law, the directors voting for such overissue, or unlawful issue, shall be personally liable to the holders of the bonds or other obligations illegally issued for the amount held by them, and to all persons sustaining damage by such illegal issues for any damage caused thereby.”

The demurrer in this case raises the question as to the true con-, struction of this section, the nature and extent of the liability, the proper procedure for enforcing it and the necessary parties to such, an action. It is a fundamental proposition in the plaintiff’s contention that the liability is primary and contractual, and that an action may be maintained to enforce it in the same manner as if the trustees themselves owed the debt to the creditor. It is contended that the liability is the same as that of stockholders for debts created before the capital stock is paid in. It should be observed that the liability in that case is treated as that of partners, and that the statute continues and preserves that liability, notwithstanding the creation of the corporation, until the capital stock is paid in. That is the theory upon which primary liability in that class of cases rests. Corning v. McCullough, 1 N. Y. 47; Rogers v. Decker, 131 id. 490; 43 St. Rep. 781.

A different kind of liability, however, arises when the obligation of the members of the corporation is determined by the perfect creation of an artificial person, capable in law of acting and contracting for itself. Then the primary or common-law liability of persons associated together in some enterprise as partners is. terminated and the liability of the trustees rests wholly uppn the-statute which creates the liability, in the nature of a penalty, for disobedience to its commands. The neglect of the trustees to file the report required by the statute, or the making of a false report, illustrates the nature of this peculiar penal liability. Gadsden v. Woodward, 103 N. Y. 242; 3 St. Rep. 102; Wiles v. Suydam, 64 N. Y. 173 ; Merchants' Bank v. Bliss, 35 id. 412.

While it may not have all the characteristics of a penalty, as that term is commonly understood, yet the liability is a pure creation of the statute, has no foundation in contract nor any existence at common law. Morawetz on Corp. § 908.

That is the nature of the defendant’s liability in this case. The notes set out in the complaint are the debts of the corporation and not the debts of the trustees, though the latter are subjected to a certain limited liability in regard to them, for the reason that they have disregarded the statute which forbids the creation of debts in excess of capital stock. The possible liability of the trustees-is measured by the excess of debts over and above capital stock, and until the statutory limit is reached there is no liability whatever.

The most important question, however, is with respect to the parties who are entitled, in-a proper case, to enforce this liability.

The learned counsel for the plaintiff contends that the right of .action is given by the statute to creditors holding debts created in violation of its provisions and to those alone. We think that this is not the correct construction of the statute. The benefit of its provisions is given in terms to the “ creditors of the corporation," and not to a part of them. The language includes all the creditors. Moreover, it cannot be supposed that the legislature intended to give to these words the restricted meaning which would confine the benefits of the statute to such creditors only as held debts created in violation of the provisions. Such a result would give to the latest creditor practically a preference over the earlier ones, since it would give him two funds to resort <to. He would, of course, have the right to resort to the corporation, whose obligation he held, and besides he would have the right to resort to the personal liability of the trustees. It was the intention to limit the •amount of unsecured debts which such a corporation might contract to the amount of its paid-up capital , stock. This limitation was intended for the security of all the creditors. The creation -of debts in excess of the capital affects all the creditors alike. It diminishes the value of every creditor’s claim upon the corporate assets. It has precisely the same effect upon the earlier as upon the later creditor, and it would be manifestly unjust to confine the benefits of the penalty which the law imposes for disobedience ■of the statute to a few whose debts were contracted later in point of time. When the statute requires the trustees, creating or assenting to debts in excess of capital, virtually to put back into the ■corporate treasury a sum to such excess in certain contingencies, all the creditors have in equity and justice an equal claim upon the fund. The rule that in such cases equality is equity would be violated by allowing the later creditors to absorb this fund to ■the prejudice of the earlier ones.

We think that the fair construction of the statue is that it imposes a liability upon the trustees, creating or assenting to debts in excess of the capital to the extent of such excess, not for the benefit' of any particular creditor,- but for the benefit of all, and their liability is in equity a fund to which all the creditors may resort for the satisfaction of such debts as the corporation itself -fails to -pay, to be shared in by all in proportion to the debt remaining unpaid. It follows that it must be enforced in equity in a suit where all the creditors and the corporation itself are parties, ■or represented, where. an accounting can be had, all the facts ascertained and the equities adjusted.

The liability is secondary, to'be resorted to only after the usual remedies against the corporation itself have been exhausted. While there is no express direction to that effect in the statute it is the general rule that it is to be implied from the nature of the liability (Morawetz on Corp. § 883) in the absence of some provision clearly importing the contrary. This principle is clearly deducible from the cases in this court of which the case of the People ex rel. Winchester v. Coleman, 133 N. Y. 279; 45 St. Rep. 217, is an example, where the court said: “It is an essential and inherent characteristic of a corporation that it alone is primarily liable for its debts, because it alone contracts them, except as that natural and necessary consequence of its creation is modified in the act of its creation by some explicit command of the statute which either imposes an express liability upon the corporators in the nature of a penalty, or affirmatively retains and preserves what would have been the common-law liability of the members from the destruction involved in the corporate creation. * * * The retained liability occasionally established is in the nature and a parcel of such original liability, as wé had occasion to show in Rogers v. Decker, 141 N. Y. 490; 43 St. Rep. 781, but is retained by force of the express command of the statute and in that manner saved from the destruction which otherwise would follow the simple creation of the corporation. Ordinarily, these individual liabilties exist upon other than common-law conditions, and make the corporators rather sureties or guarantors of the corporation than original debtors, since in general their liability arises after the usual remedies against the corporation have been exhausted.”

In other cases it has been said that this immunity of the members of the corporation from personal liability, until all remedies against the corporation have been exhausted, is founded in reason and justices, and a very clear indication of a legisative intent to disregard it must be found before the liability is held to be primary. Hirshfeld v. Bopp, 64 St. Rep. 535; 145 N. Y. 84; Hardman v. Sage, 124 id. 25; 35 St. Rep. 54; Huntington v. Attrill, 146 U. S. 657.

The general policy of the law in this respect is expressed in the fifty-fifth section of the Stock Corporation Law, which provides that no action shall be brought against a stockholder for any corporate debt until judgment has been obtained against the corporation and an execution returned unsatisfied. The directors are, of course, stockholders, and it is reasonable to assume that it was not intended to charge them with personal liability on any other conditions than apply to all the members of the corporation. Thomson on Corp. vol. 3, § 4317; Handy v. Draper, 88 N. Y. 334.

This view, with respect to the meaning of the statute and the manner of enforcing it, seems to us not only just and reasonable, but in accord with the great weight of authority. Statutes substantially identical have received construction in the supreme court, in the federal courts and in the courts of sister states in accordance with the views herein expressed.. Hornor v. Henning, 93 U. S. 228; Stone v. Chrisholm, 113 id. 302, Merchants' Bank, etc. v. Stevenson, 10 Gray, 233; Anderson v. Speers, 21 Hun, 568; McClave v. Thompson, 36 Hun, 365.

So far as the case of Patterson v. Robinson, 36 Hun, 622; 37 id. 341, sanctions the construction contended for by the plaintiff, it cannot be followed. With respect to that case it should however be observed that the reasoning of the learned judge is based largely upon the fact that the section of the Manufacturing Act which was under consideration and which is quoted above, contained no prohibition upon the trustees against the . creation off debts in excess of the capital stock. That is no longer true, since the Stock Corporation Law involved here does contain such a, prohibition. That case was an appeal from a judgment against, the trustees, and while it was affirméd, the decision was subsequently re-considered on a re-argument and a new trial granted upon other grounds, and'when the case was in the second division of this court (116 N. Y. 193 ; 26 St. Rep. 685), it was disposed of on grounds that did not involve a construction of the statute. The complaint contains an allegation that, prior to the commencement of this action, the plaintiff was restrained by injunction from taking any proceeding against the corporation for the collection of the debt, but there are no allegations of fact which would, enable us to say that the injunction was a valid legal obstacle, in the way of a suit against the corporation, or that it was in force at the time this action was commenced. The bare fact that, at some time before this action had been commenced, an injunction was granted upon some ground or for some reason, as to which the-complaint is silent, is not sufficient to excuse the omission to proceed, against the corporation, the principal debtor. Aside from this point, however, the complaint would be defective in that it. does not state the facts necessary in an action in equity for an accounting, and the proper parties are not before the court for that-purpose. The allegations of the complaint and the prayer for relief determine the charaeter of the action as one at law by a single creditor to recover its own debt as a primary liability of the trustees. We think that such an action cannot be maintained, and that the demurrer should have been sustained.

The judgment of the general and special term should be reversed, with costs, and the demurrer sustained, with leave to the plaintiff, within twenty days from the service of the order, to amend the complaint on payment of costs.

All concur. Judgment accordingly.


author: Bartlett, J.

text:
    Thomas H. O’Connor, Resp’t, v. Peter W. Felix et al., Defendants. Michael H. Hagerty, App’lt.

      (Court of Appeals,

      Filed December 10, 1895.)

    Mortgage—Foreclosure—Compelling purchaser to take title—Service OE SUMMONS AND COMPLAINT.
    Upon an appeal by the purchaser at a foreclosure sale from an order of the general term, affirming an order of the court at special term, which confirmed the report of a referee appointed to take testimony as to the service of the summons and complaint upon the owner of the fee and requiring the appellant to take title, it was held that the conclusion that the-owner of the fee had been personally served with a summons and complaint in the aciionwas warranted by the evidence, and that, without expressing any opinion as to the mode of attack open to such owner if he-should hereafter assail the judgment in the action, the purchaser was properly compelled to complete his purchase, though the owner was not bound by the present proceeding.

      Appeal by the purchaser at foreclosure sale from order of the general term of -the supreme court, 1895, which affirmed an order of the court at special term confirming the report of a referee appointed to take testimony as to the service of the summons and complaint upon the owner of the fee and requiring the appellant to take title.
    This action was brought to foreclose a mortgage of $25,000 made by the defendants Peter W. Felix and wife to the plaintiff, covering eighteen lots of land in the city of New York, On February 10, 1893, judgment of foreclosure and sale- was made and entered on the usual affidavits showing personal service of the summons upon the defendant Peter W. Felix and that all the defendants had been served or had appeared.
    At the sale under judgment the defendant Patrick Fox bid in two of the lots and afterwards failed to complete his purchase. A re-sale was ordered and Patrick Fox again bid in the same two lots and again failed to complete his purchase. An order was made requiring him to complete, which was not complied with, and a third order of a sale of the lots was made, at which sale Michael H. Hagerty, a stranger to the action, purchased but refused to complete, because there was served upon him an affidavit of the defendant Peter W. Felix and an affidavit of the defendant Patrick Fox to the effect that Felix had never been served with the summons in this action.
    A motion was made by the plaintiff to compel the purchaser to complete, and an order was ma.de (under section 1015 of the Code) referring it to a referee, to ascertain whether the service had been made on the defendant Felix. The referee took the proofs offered and reported that the service had been made, and an order was made confirming the report and requiring the purchaser to complete. On appeal to the general term this order was affirmed, and from this order of affirmance the present appeal is taken.

      James A. Deering, for app’lt;

      Richard O. Gorman, for resp’t.

       Aff’g 67 St. Rep. 777.

   Bartlett, J.

The referee was directed to determine the single question whether the amended summons and complaint were personally served on the defendant Peter W. Felix, and owner óf the fee.

Nine witnesses were sworn on the reference, and a large amount of testimony taken.

The referee, at the close of an exhaustive report, stated that he was forced to conclude that the allegations contradicting the affidavit of service upon defendant Felix of the summons and complaint were the result of an afterthought, and wholly false.

We will not go into the details of this evidence although we have examined it with great care, and we are satisfied there is no reasonable ground for believing that the defendant Felix was not served.

A brief outline of the material evidence before the referee is to the effect that one Yorke, a process server, swears positively to making service on Felix; while he did not know Felix the latter had been carefully described to him before making the effort to serve him, and after service was made and called in question he identified Felix as the person served when pointed out to him on the street, in church, and in the office of the referee.

The service is alleged to have been made in Eighty-fifth street, on the eighth day of April, 1892.

Felix was engaged in -putting marble work in a new building 'on Madison avenue, between Eighty-fourth and Eighty-fifth streets, and Yorke had arranged with Oolwell, the janitor in charge of the new building, to'point out to him Felix when leaving the building; this Oolwell did, and service was made.

It was afterwards claimed by Oolwell that he purposely misled Yorke, and pointed out to him a painter who happened at that moment to be leaving the building, named Mulligan.

It is not necessary to follow Colwell through the details of his testimony, but it is sufficient to say that we. agree with the referee when h.e states that because of the open and shameless mendacity of this witness and his contradictions on the stand, his testimony is entitled to little or no weight.

Mulligan testified that some time during his employment on the new building in question he was served on the street by Yorkc with papers i'n a sealed envelope, which he threw away; he could not fix the date, not even the month.

Yorke swears positively that he never served papers on Mulligan at any time, and that the papers served on Felix were not in a sealed envelope.

Felix swears that he was never served, and was not at the new building on the day of the alleged service; that he shut himself in his house from about the third of April, 1892, for three weeks, but denied that he knew this forclosnro action was pending, or that an attempt was being mado to serve him ; he afterwards corrected his testimony by stating that he did remain at home to avoid service of papers which his brother-in-law, Fox, informed him were to be served upon him. .

It appears that Fox had twice bid in the lots that were subsequently sold to Hagerty, the appellant, on the third sale, and had failed to complete his purchase.

This tends strongly to show that Felix knew of the pendency of this action, and it is not probable that Fox would have bid at the first and second sales of this property had he known that his brother-in-law, who lived in the same house with him, had not been served with the summons and complaint.

Feliz admits that he went to New Jersey and remained there about two months in order to avoid service of subpoena in this proceeding.

As we are convinced that the witnesses Oolwell, Mulligan and Felix-are unworthy of belief, it is unnecessary to examine the evidence further.

This action involves the title to eighteen lots of land in the city of New York, of which the referee, has already conveyed sixteen, and the remaining two are involved in this motion.

While it is true that Felix is not bound by this proceeding, we are satisfied that he was served in this action with the amended summons and complaint, and that the purchaser and appellant, Michael H. Hagerty, was properly required to take title of the two lots in question.

Title to real estste cannot be rendered unmarketable by any such state of facts as is disclosed by this record.

The learned general term discusses at some length the mode of attack open to the defendant Felix if he should hereafter assail the judgment in this action.

This question, in our opinion, is not presented by this motion, and we express no opinion in regard to it.

The order appealed from should be affirmed, with costs.

All concur. Order affirmed.


author: Haight, J.

text:
    Timothy J. Kieley, Resp’t, v. Central Complete Combustion Manufacturing Company, App’lt.

      (Court of Appeals,

      Filed December 10, 1895.)

    Attachment—Service of summons.
    In order to sustain an attachment, the service of a summons in the action, required by section 638 of theCode to be made personally or begun by publication upon a defendant against whose property a warrant of attachment is granted within thirty days after the granting thereof, must be such a regular and formal service as will sustain the entry of a judgment on default.
    Appeal from order of the general term of the court of common pleas for the city and county of New York, which affirmed an order of the special term denying defendant’s motion to vacate an attachment.

      Melville Egleston, for app’lt;

      Charles J. Hardy, for resp’t.

       Rev’g 68 St. Rep. 181.

   Haight, J.

The motion to vacate the attachment was made upon the ground that personal service of the summons had not been made, nor publication thereof commenced, within thirty days after the granting of the attachment. The Code of Civil Procedure, section 638 provides that “personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the state, pursuant to an order obtained therefor, as prescribed in this act; and if publication has been, or is thereafter commenced, the service must be made complete by the continuance thereof.” It is claimed that the service of the summons' is sufficient to sustain the attachment, if the defendant had notice in time to resist the' claim made against it, even though the service was not such as would sustain the entry of judgment on default; relying upon Putnam County Chemical Works v. Jochem, 8 Civ. Pro. Rep. 424. Ought the provision of the Code to receive such a construction ? It will be observed that it states that “personal service of the summons must be made,” etc. This enactment has already received attention in several cases. In Blossom v. Estes, 84 N. Y. 614, a motion was made to vacate an attachment on the ground that the summons was not personally served, nor publication thereof commenced, within thirty days from the issuing of the warrant. The motion was denied at special term, but, upon appeal to the general term, the order was reversed and the motion granted. That order was affirmed in this court upon the ground that the attachment was rendered void by a failure to serve or publish the summons within the time specified. See, also, Taylor v. Troncoso, 76 N. Y. 599; Mojarrieta v. Saenz, 80 id. 547; Cossitt v. Winchell, 39 Hun, 439; Waffle v. Goble, 53 Barb. 517, 522. It is true that the object of service is to give notice and an opportunity to defend. But it must be made in the manner prescribed in the statutes. Gibbs v. Ins. Co., 63 N. Y. 114; Hiller v. R. R. Co., 70 id. 223; Pope v. Terre Haute C. Mfg. Co. 87 id. 137. Service of the summons is required by the Code. It can be made personally, by publication or, in some cases, by substituted service in the manner pointed out by the Code. Jurisdiction is only acquired by service in accordance with one of the forms prescribed. The meaning of the language quoted is quite apparent. It is clear and unequivocal. It is used in the formation of a system of practice in connection with other provisions, which are intended to be in harmony with it. We cannot believe that it was contemplated that a form of service was intended to be sufficient to sustain the attachment and not sufficient to support the judgment.

In this case the attachment was levied upon money belonging to the defendant in the hands of one Rutzler, and at the same time the sheriff left with him a copy of the summons and complaint, together with copies of the attachment papers. A few days thereafter he delivered the papers to one Colwell, the general manager of the defendant. Colwell testified that Rutzler only loaned the papers to him Under the promise that he would return them, and before letting him have them marked each paper with his signature for identification, and that shortly thereafter he returned the papers to Rutzler. This statement is not contradicted, and we must, therefore, take it as true. It appears that Colwell communicated the fact of the levy to the directors of the company and also to its attorney, and that he had some talk with the attorney of the plaintiff about the company’s appearing in the action, or that he would let him know when the president of the company was to be in town, so that personal service of the summons could be made. But we discover nothing in his failure to disclose his own character, or in what was said about the appearance or service of the president, that estops the defendant from insisting on its legal rights, 6r that amounts to fraud, deception or an inducement to the plaintiff to allow the thirty days to run without service. We do not understand him to claim that he was misled, for the attorney distinctly states that the time ran because of the miscalculation of the managing clerk. The case must, therefore, be regarded as narrowed to that of service, and upon that we feel compelled to hold that it was not sufficient. Williams v. Van Valkenburg, 16 How. Pr. 114; Mc Namara v. Canda Steamship. Co., 11 Daly, 297, 300; White v. Coulter, 1 Hun, 357; Smith v. Kerr, 49 id. 29; 17 St. Rep. 351.

We are award that this conclusion may result in a loss to the plaintiff, but the fault is not with the law. The conduct of the officers of the defendant may not have been what it should, but this furnishes no reason for dispensing with the safeguards with which the statute surrounds the parties who are brought into court to answer charges made against them, nor justifies us in permitting the well-settled practice to be shaken or departed from.

The orders of the general and special terms should be reversed and the motion granted, with costs.

All concur. Ordered accordingly.


text:
    Louise Carlson, Resp’t, v. Maria L. Winterson, App'lt.

      (Court of Appeals,

      Filed December 10, 1895.)

    1. Trial—Jurors.
    Where, after the jurors are called, the plaintiff’s counsel states that his principal witness had served a term in the penitentiary and asks the jurors whether that fact will prejudice them against believing him if his testimony in other respects appears trustworthy or is corroborated by other evidence, a ruling, overruling an objection to such question, does not present any question which the court can consider, where it does not appear that the jurors or either of them made any answer to the question, or that any challenges were interposed, either peremptory or otherwise, in consequence of any information derived from such question.
    3. Evidence—Objection.
    Where a question to a witness has been excluded upon an objection which states the grounds thereof, a repetition of the question or the grounds of objection to the renewal of the same or similar question is unnecessary, when the ground once stated is understood as applying to each question.
    5. Witness—Impeachment.
    A person called to impeach a witness is not competent to testify as to his general reputation and whether or not he would believe him under oath, without first showing knowledge of such reputation.
    4. Same.
    Where, upon the cross examination of a witness, it is made to appear that he has been imprisoned in a penitentiary, he may be permitted to testify, upon the redirect examination, as to the nature of the crime for which he was imprisoned.
    Appeal from a judgment of the general term of the court of common pleas for the city and county of Hew York, entered upon an order and.a judgment of the general term of the city court of Hew York affirming a judgment in favor of plaintiff entered upon a verdict and an order denying defendant’s motion for a new trial.

      E. F. Bullard, for app’lt;

      Hector M. Hitchings, for resp’t.

       AfE’g 64 St. Eep. 113.

   Haight, J.

action was brought to recover the amount of a promissory note for five hundred dollars, with the interest that had accrued thereon. ■ The defense is that the note was a forgery.

It is claimed on behalf of the plaintiff that the defendant employed one B. 0. Tengzelius to investigate the financial standing of one Collingwood, against whom the defendant had a claim for nine thousand dollars. That she gave him the note in question in advance of his performing the services, under an agreement that he would return the note in the event of his not doing any work on the case. He thereupon transferred the note to the plaintiff in payment of an antecedent indebtednéss, and subsequently reported, to the defendant to the effect that he had made inquiry in reference to the property held by Collingwood, and that the same was in his daughter’s name. The defendant denies that she ever signed the note in question, or any other note, for Tengzelius, but that she had a-talk with' him, and agreed if he would collect the claim againt Collingwood she would pay him. five hundred dollars out of the money collected, The jury found a verdict for the plaintiff, and the judgment entered thereon has. been affirmed in the general term of the city court and of the court of common pleas.

We confess we have grave doubts as to the justice of this claim, and we cannot escape the suspicion that an old lady has been tricked and defrauded. But we have discovered no way in which we can interfere. The evidence was conflicting. Tengzelius swore that the note was signed by the defendant in his presence. She testified that it was not. Questions as to the weight of evidence are with the trial court and the general term, and the responsibility for the correct determination of the facts rests upon those courts. We are limited to a review of the law.

After the jurors were called the plaintiff’s counsel stated that the plaintiff’s principal witness (referring to Tengzelius) had served a term in the penitentiary, and asked the jurors whether that fact would prejudice them against believing him if his testimony in-other respects appeared trustworthy, or was corroborated" by other evidence. The defendant’s counsel interposed an objection, which was overruled and an exception taken. We are now asked to reverse the judgment because of this ruling. But it does not appear to us to present any question which we can consider, for the reason that it does not appear that the juror or either of them made-any answer to the question, or that any challenges were interposed, either peremptory or otherwise, in consequence of any information derived from such question.

One .Forwood was sworn as a witness for the defendant, and testified that he was in business with Atlas steamers "and knew Tengzelius; had seen him in their company many years ago, and supposed he "was with them two or three, years. He was then asked to give his general reputation. This was objected to by the plaintiff’s counsel as irrelevant, incompetent and immaterial unless confined to veracity, and that no foundation had been laid. The court remarked that after ascertaining whether the witness, has knowledge as to Tengzelius’ reputation for the truth and veracity in the community where he resides, the defendant might ask him as to such reputation, but that the defendant must first show that the witness knows such reputation. The same question was-then repeated by counsel. The plaintiff still objecting, the objection was sustained and an exception taken. • When the question was renewed the plaintiff, in interposing his objection, did not repeat as a ground that no foundation had been laid showing the witness’ competency to speak as to character. But this ground was distinctly stated in the objection first stated, upon which the court had made its ruling and under which the evidence was excluded, and a repetition of the question or the grounds of objections appear to us to have been unnecessary.

The witness was again asked whether, from the general reputation of Tengzelius, he would believe him under oath. This was objected to upon the ground that no foundation had been laid, and the objection was sustained. And again he was asked as to what his general reputation was as to moral character. This was* again objected to, but the afore-mentioned ground was not repeated. The objection was sustained and an exception taken.

These questions succeeded each other in the order named, and the ground of the objection, we think, must have been understood as applying to each. Dilleber v. Home Life Insurance Company. 69 N. Y. 256-260.

Forwood had not testified that he knew the general reputation-of Tengzelius. He had not, therefore, qualified himself to answer the question objected to, and the court had the right to exclude his answers for this reason. It is true the court in its remarks went a step further and stated that the witness should show his* knowledge as to the reputation of Tengzelius for truth and veracity. But this remark of the court, we think, did not excuse the defendant from showing that his witness was qualified to answer the question propounded in order to make her exception available.

In 2 Phillips on Evidence. 432, it is said: “ The regular mode-of examining into the general character of a witness is by inquiring of the witnesses who are called to impeach it whether they have the means of knowing his general character and whether with such knowledge they would believe him on his oath.”

Greenleaf, in his work upon Evidence, in section 461, says: “In-impeaching the credit of a witness the examination must be confined to his general reputation. * * * The regular mode of examining into the general reputation of the persons in question is.” See Sleeper v. Van Middlesworth, 4 Denio, 431; Curtis v. Fay, 37 Barb. 64-69.

Upon the cross-examination of the plaintiff’s witness, Tengzelius it was made to appeairtha the had been imprisoned in the penitentiary of Kings county for nine months. Upon the re-direct examination, he was permitted to testify as to the nature of the crime for which he was imprisoned. We think this was proper. No other-question is presented which requires attention. It follows that the judgment must be affirmed.

As to the motion pending before us to amend the remittitur on a former appeal (146 N. Y. 345), as it now appears that the real estate of the defendant has been again sold upon an execution issued upon the judgment here under review. The defendant should have the statutory time to redeem, add she ought not to* be deprived of that right by reason of the sale that was made un»■der the former judgment which-was reversed. The remittitur should, therefore, be amended by striking out that portion which modified the order of the general term of the city court, by requiring the payment into court of the sum of. $711, to abide the final determination of the action.

All concur.

Judgment affirmed.


text:
    Abijah S. Wakeman, App’lt, v. Sylvia A. Wilbur et al., Resp’ts.

      (Court of Appeals.

      Filed December 10, 1895.)

    1. Appeal—Reversal.
    Where the facts found by the referee sustain the judgment, the only question for the court of appeals to consider is whether any of them are without any sufficient basis in the proofs, and whether any of the exceptions taken are of such a character as to require a reversal of the judgment.
    ' "S. Highways—Obstruction—Nuisance.
    The obstruction of a public highway is an act which in law amounts to a public nuisance, and a person who sustains a private and peculiar injury from such an act may maintain an action to abate the nuisance and to recover the special damages by him sustained; but the damage must be substantial, and not merely nominal, and the fact that numerous other persons have been injured by the act-is no ground for the denial of such relief.
    .3. Same.
    When the damage or injury is common to the public and special to no person, redress must then be obtained by some proceeding in behalf of the public and not by a private action.
    4. Same.
    A private person may maintain an action to abate a public nuisance and to recover the damages which he sustains and which are special and peculiar to himself, growing out of the necessity on his part to use th@ road ■ at the time of the obstruction more frequently than his neighbors.
    .'8. Appeal—Adequate remedy at law—First instance.
    Where the defense that the plaintiff had an adequate remedy at law under the statute for removal of obstructions in public highways, is not interposed by answer or raised at the trial, such an objection, raised for the first time after judgment, is not good ground for reversing such judgment.
    Appeal from order of the general term of the supreme court ■jn the fourth judicial department, entered upon an order, which reversed a judgment in favor of plaintiff, entered upon the report of a referee, and granted a new trial.

      Isaac H. Maynard, for app’lt;

      Alexander Neish, for resp’t.

       Rev’g 21.St. Rep. 556.

   O’Brien, J.

The court below reversed a judgment recovered by the plaintiff on the report of a referee. It does not appear from the order that the reversal was upon facts, and we must, therefore, assume that it was upon some question of law. The action was brought to compel the defendant to remove obstructions from a public high way and for damages which it was alleged that the plaintiff had sustained in consequence of the unláwful ■obstruction. It was claimed that the invasion of the highway by the defendant amounted to a public nuisance, and that the plaintiff, by reason thereof, had suffered such special and particular damage and injury as enabled him to bring and maintain the action in his own name. The facts found by the referee sustain the ■judgment, and the only question for this court to consider is whether any of them are without sufficient basis in the proofs, .and whether any of the exceptions taken were of such a character as to require a reversal of the judgment. .

The important facts found are, first, that the defendant did place obstructions in a public highway, and, secondly, that this unlawful act resulted in damages to the plaintiff, special and peculiar to him, and not of a character common to the whole public. It appeared that, on the 27th day of June, 1851, the commissioners of highways of the town laid out the road in question by an order, signed by two of them, in which the center line of the xoad, to be three rods in width, is described by courses, distances and monuments. This order was duly recorded as required by law, and recites the fact that it was made at a meeting of all the commissioners called for that purpose, and after full deliberation and with the consent of the property owners through whose lands the road passed. It further appeared that the road was thereafter included by the public authorities in one of the road districts of the town. The road at the point in question was laid out through a forest, and for some years afterwards it was opened and used only for the purpose of drawing loads upon sleds in the winter or the passage of sleighs. The road as opened at the point in question did not follow the survey indicated in the order in all respects, but there were deviations therefrom. The limited use of the place as a highway for some years thereafter was sufficient to give to it the character of a public road. It was a place over which the public had the right to pass and repass, and the. fact that it was not sufficiently improved for some time to permit the passage of wagons or carriages upon wheels did not affect the public right. About ten years afterwards, however, the road was so opened, widened and improved that thereafter it was used and •traveled by the public generally with wagons and carriages, still following the old line of the sled road as originally cut out and opened through the woods on the premises now owned by the defendant. About 1869 this road, at the point in question, was changed for a distance of ten or twelve rods through the lands now owned by the defendant, the new or substituted road being located or placed a few rods easterly of the old road. The then ■owner of the land,- one of the defendant’s grantors, consented to this change and thereupon the road was located where it now is by the public authorities and the persons then owning the defendants’ farm. It must, of course, be assumed to be the same width as the original road, namely, three rods. The referee was, therefore, warranted in finding that the locus in quo was a public highway three rods wide. He has also found for the past twenty-six years this highway had been included in one of the road districts ■of the town, and has been in charge of overseers duly appointed, and that the inhabitants, including the defendants, have been assessed for its maintenance and repair. The evidence certainly-warranted these findings. It is quite true that he has also found that at the time this action was commenced the boundaries of this road as traveled, used and worked, had not been ascertained or determined by the comipissioners of highways of the town. But the place was still a highway, although its exterior lines had not. been marked out or delineated. The recording of the order, the opening of the road for use in winter, the act of the authorities in including it in one of the road districts, and the agreement' between them and the defendants’ predecessors in title changing the-location and establishing the road as now used, were all acts which ‘ could be considered in determining the fact as to the existence at the place in question of a public highway. There was also evidence from which the referee could have found that the defendants obstructed this highway, and he did find that, on several occasions prior to the commencement of this action, the defendants-placed fences within a foot and a half or two feet of the wagon track, and so near to the same as to obstruct the highway and to-hinder and prevent the free use of the same. That in the winter-season these fences, so placed, caused the snow to drift in upon the track and fill the same, rendering it difficult and sometimes-impossible to travel thereon. It was not important that the exterior lines of this road, three rods in width, had not been ascertained or designated with accuracy by the public,authorities. The. finding that the defendants obstructed the highway necessarily implies that the fence was placed within the limits of the road.. The existence of the road as such and the obstruction of it by the defendants presented to the referee a mixed question of law and fact, and, while the proofs upon which the findings of the referee were based were open to review in the court below, it cannot be said that these conclusions were erroneous as matter of law. Doughty v. Hope, 1 N. Y. 79 ; Chapman v. Gates, 54 id. 132 Downing v. Rugar, 21 Wend. 178; Matter of James, 43 Hun, 67; Potter v. Merchants' Bank, 28 N. Y. 641; Van Steenberg. v. Bigelow, 3 Wend. 43; Barber v. Winslow, 12 id. 102; Vandermark v. Porter, 40 Hun, 397.

The obstruction of a public highway is an act which in law amounts to a public nuisance, and a person who sustains a private and peculiar injury from such an act may maintain an action toábate the nuisance and to recover the special damages by him sustained. People v. Kerr, 27 N. Y. 193; Davis v. Mayor, 14 id. 506 ; Adams v. Popham, 76 id. 410 ; Chipman v. Palmer, 77 id. 51. The extent of the injury is not generally considered very important. It should be substantial, of course, and not merely nominal, and the fact that numerous other persons have been injured by the act is no ground for a denial of the relief. When, the damage or injury is common to the public and special to no. one, then redress must be obtained by some proceeding in behalf of the public and not by a.private action. Francis v. Schoellkopf, 53 N. Y. 152; Doolittle v. Supervisors of Broome Co., 18 id. 155 ; Lansing v. Smith, 4 Wend. 9; Callanan v. Gilman, 107 N. Y. 360; 12 St. Rep. 21.

The referee found from evidence entirely sufficient that the plaintiff was obliged to use the road in the winter for the purpose of drawing logs, but on account of the obstruction he was for several days compelled to take another and much longer route, to his pecuniary damage; that at other times he was obliged to clear the road from the drifts of snow that had accumulated in consequence of the fence, which required time and labor, and that in some other respects he was put to expense in the use of the road for his lawful business, by reason of the defendants’ acts. The total damage peculiar to the plaintiff the referee found upon the proofs to be $35. These findings bring the case within the principle which permits a private person to maintain an action to abate a public nuisance, and to recover the damages which he sustained and which were special and peculiar to himself, growing out of the necessity on his part to use the road at the time of the obstruction more frequently, perhaps, than his neighbors. The obstruction was, no doubt, an offense against the public, but it was none the less, in a special and peculiar sense, an injury to the plaintiff. The defendants urge that the plaintiff had an adequate remedy at law under the statute for the removal of such obstructions in public highways. Without inquiring whether this be so or not, it is quite sufficient to say that no such defense was interposed by answer or raised at the trial, and such an objection raised for the first time after judgment is not good ground for reversing a judgment. Lough v. Outerbridge, 143 N. Y. 271 ; 62 St. Rep. 324. There are some exceptions in the record taken by the defendants at and after the trial to rulings of the referee. None of them were considered in the opinion of the court below. We have examined them all, and are of opinion that none of them are sufficient to support the judgment of reversal.

For these reasons we think that the order of the general term should be reversed and the judgment entered on the report of the referee affirmed, with costs.

All concur. Ordered accordingly.


text:
    Faneuil Hall National Bank, Pl’ff, v. John Bussing, Impleaded, etc., Def't. John H. Rogan, Receiver, etc., Resp’t, v. William D. Beck, App’lt.

      (Court of Appeals,

      Filed December 10, 1895.)

    1. Supplementary proceedings—Receiver—Title to real estate.
    A receiver, appointed in proceedings supplementary to an execution, takes no suck absolute title to real estate as will enable him to sell it when it is subject to the liens of judgments and can be sold under executions issued thereon in the manner pointed out by statute and subject to all rights of redemption ; his title does not divest the debtor of the legal title, but the latter’s conveyance of the premises will be subject to the claim of the receiver.
    '2. Same.
    It is only when the remedy at law has been invoked and exhausted, that the creditor may avail himself of proceedings supplementary to execution, as provided by the Code of Civil Procedure.

      3. Same—Conveyance by judgment debtor.
    - Where a conveyance is made by a judgment debtor of real estate situate-
    in another county other than in which a receiver in supplementary proceedings has been appointed, after the order appointing such receiver has. been filed in such county, it will vest a good title in the ge antee as against such receiver, unless the judgment has been docketed in that county.
    4. Same—Order to sell—Motion to vacate.
    Where, in such case, a receiver is ordered by the court to sell property which has been conveyed by the judgment debtor, the judgment debtor’s grantee or his successor in title may move to vacate the order, though not. a party to the action in which the judgment was recovered.
    5. Same—Legal remedy—Lapse.
    ' Where a judgment creditor suffers his remedy at law against the realty of the'judgment debtor to lapse, his equitable remedies in respect to such, realty are also cut oil.
    6. Same—Collateral attack.
    On a motion, made by a person claiming under a deed of a judgment, debtor’s realty and a partition suit based thereon, to set aside an order, directing a receiver, appointed in supplementary proceedings in another county to sell the realty, on the ground that the judgment creditor had not docketed his judgment in the county where the realty was situated and. issued execution thereen, such deed and action cannot be collaterally attacked.
    Appeal from order of.the general term of the supreme court in the first judicial department, w-hich affirmed an order of the-court at special term denying a motion made by one William D. Beck, the appellant, who was not a party to the action, to set aside an order granted at special term directing a receiver in supplementary proceedings of the property of the defendant, John Bussing, the judgment debtor of the plaintiff, to sell certain real estate of which the appellant was then the owner.

      Isaac H. Maynard, for app’lt;

      Frederick Smyih, for resp’t.

       Rev’g 65 St. Rep. 874.

   Bartlett, J.

On the 5th of April, 1876, the plaintiff recovered two judgments against the defendants, John Bussing, aggregating $2,400. On the 8th of July, 1876, the First National Bank of Pdrt Chester also recovered a judgment against the defendant for $829.30.

A receiver was appointed in supplementary proceedings under • all the judgments in the city and county of New York and the orders filed and' recorded in Westchester county in the autumn of 1876. = •

= At that time the judgment debtor owned a quarter interest in fourteen and a half acres of land at Rye Beach in Westchester county.

John Bussing, the judgment debtor, died January 8th, 1877, leaving a will and making his wife executrix with full power to-sell his real estate, and in pursuance thereof she conveyed testa-, tor’s interest in the Rye Beach property to her brother, Ebenezer Valentine, but the deed was recorded until February 10th, 1885.

Prior to 1884, William D. Beck, the appellant, had become the owner of the Rye Beach property with the exception of the judgment debtor’s interest, and during that year Valentine, the grantee of Bussing’s share of the, property, commenced an action in partition against Beck, which proceeded to judgment and sale, and. Beck, the appellant, purchased the entire property.

For about ten years thereafter Beck remained in undisturbed possession until motion was made in the spring of 1894 for an order requiring the receiver in supplementary proceedings to sell the right, title and interest of the judgment debtor, Bussing in the property. .This order was granted and Beck moved to vacate it, to set aside the receivership and for other relief; this motion was denied without opinion in the court below either at special or general term, and the correctness of that decision is now to be considered.

It is to be remarked that Amanda Bussing, the executrix of the judgment debtor, consented to the order of sale notwithstanding the fact that eighteen years before she had conveyed to the grantor' of the appellant the judgment debtor’s intetest in the Bye Beach property.

It also appears that the original receiver in supplementary proceedings, appointed in 1876, was discharged without notice to any one March 20th, 1894, and John H. Bogan, the present receiver, was appointed in his place, gave bond and entered upon the discharge of his duties. The material facts are not disputed. The position of the present receiver is that filing and recording in Westchester county, in the autumn of 1876, the orders appointing the original receiver vested in the later the legal title of the judgment debtor, and that the subsequent sale by the executrix of the judgment debtor of his interest in the property to Valentine was a nullity; the legal title passed from the original receiver to the present receiver by virtue of the order of March 20th, 1894, to which reference has already been made.

We think this position is unsound and arises from a failure to apprehend the proper functions of a receiver appointed in proceedings ^supplementary to the execution.

It is true the Code of Civil Procedure (§ 2468) provides that on. filing the order appointing the receiver, or a certified copy, in the county where the property is situated, the real property is vested in the receiver. This section, however, is to be read and construed in connection with the other provisions of the statute and cannot be taken literally.

It must be constantly kept in mind that the receiver is appointed in proceedings supplementary to the execution and takes no such absolute title to real estate as would enable him to sell it when it is subject to the lien of judgments and can be sold under execution issued thereon in the manner pointed out by statute and subject to all rights of redemption. The receiver’s title to the real estate is a qualified one in the nature of a security for the plaintiff in the judgment; it does not divest the debtor of the legal title, but the latter’s conveyance of the premises would be subject to the claim of the receiver.

The proceedings supplementary to the execution, as provided by the Code of Civil Procedure, are a substitute for the former creditors’ bill in chancery and are a summary mode of ascertaining the judgment debtor’s property interests of every kind. It is only when the remedy at law has been invoked and exhausted that the -creditor may avail himself of those more effective remedies which •are to be found in a court of equity.

Applying these principles to the situation presented in the case at bar when the original receiver was appointed in 1876, we find, so far as this record discloses, that the judgments of the two banks under which supplementary proceedings were instituted in the city .and county of 'New York, were not docketed in Westchester -county; that no executions have ever been issued to the sheriff of Westchester county; that no effort has been made to exhaust the remedy at law as to this property.

So far as relates to the Westchester real estate the judgment -creditors did not require, the aid of a receiver, or of a court of •equity to sell the interest of the judgment debtor therein; it was •only necessary to sell under execution at law in the manner provided by the statute.

If, therefore, follows that the supplementary proceedings instituted in the city and county of New York in 1876, and the filing -of orders in Westchester county were ineffectual .to vest in the receiver appointed therein any interest whatever in the Westchester real estate.

The issuing of executions to the sheriff of the city and county -of New York, and the return thereof unsatisfied, did not tend in any way to show that the remedy at law had been exhausted as-against the Westchester real estate.

This court has recently construed the Code of Civil Procedure (§ 2468) as to vesting the debtor’s real property in a receiver appointed in a supplementary proceedings. Importers and Traders' National Bank v. Quackenbush, 146 N. Y. 567; 62 St. Rep. 781, •and cases cited. Judge O'Brien says: “But this provision cannot refer to real estate which is not bound by the lien of any judgment, or against which no execution has been issued upon which it could be sold. As to real estate so situated, the creditor does not need a receiver or any other equitable relief. A court •of equity will never appoint a receiver for the purpose of doing for the creditor what he may do for himself.” .

Under the rule as thus laid down the conveyance made to Valentine by the executrix of the judgment debtor in 1878 of his interest in the Westchester real estate vested a good title free from the liens of the judgments of the two banks or of any claim of the receiver.

If we assume, for the argument’s sake, that the judgments were ■docketed in Westchester county, they ceased to be liens after ten years from the filing of the judgment roll, so that since 1886 the property has not been subject to execution and sale under the judgments. Code, § 1251. The appellant became the owner of the entire property in 1885 under the sale in partition.

It also appears that no liens were established before the referee in the partition action, although opportunity was duly afforded as provided by law.

The judgment creditors had, for ten years from the filing of the judgment rolls, an ample remdey at law against this property which they failed to invoke, and if they were damaged by the conveyance of the executrix of the judgment debtor to Valentine during that period, it was due to their failure to at once docket the judgments in Westchester county and proceed to sale_ thereunder.

Having suffered their remedy at law to lapse, all equitable remedies are also cut off. Borst v. Corey, 15 N. Y. 505. The attempt to break the force of the deed from the executrix to Valentine, and the partition suit based thereon, by the affidavit of Valentine, to the effect that he never accepted the deed and did not institute the partition action, must fail for two reasons, viz.: First, the collateral attack on the deed and partition suit cannot be entertained on this motion; and, second, the affidavit is wholly discredited by the complaint verified by Valentine in an earlier partition suit relating to the same premises, but which did not proceed to judgment, wherein he alleges that he had an estate of inheritance in the property, consisting of an undivided fourth interest.

We are of opinion that the appellant, as grantee of the judgment debtor’s title, had a standing in eourt, was entitled to make this motion, and that it should have been granted.

The orders of the special and general terms should be reversed, with costs to the appellant in all the courts, and the order entered at special term May 10th, 1894, authorizing and directing the receiver to sell the real property in question should be vacated.

All concur.

Ordered accordingly.