text:
    CHARLES A. COE, Respondent, v. JOSEPH H. HOBBY and WILLIAM H. HOBBY, Appellants.

      Lease — surrender of— new agreement —• validity of.

    By tlie terms of a lease for ten years, under seal, the lessee covenanted to pay a certain rent. Subsequently the tenant refused to pay the rent, and asked for a reduction ; the rent was reduced by parol agreement between the parties without consideration. Held, that the new agreement as to the amount of rent did not operate as a surrender of the lease, and was void for want of consideration.
    The effect of a new lease entered into by parol, upon an existing lease under seal of tiie same premises, discussed by Brady, J.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury by direction of the court. The action was brought to recover for rent of certain premises in the city of New York. The defendant had executed a lease of the premises with •he grantor of the plaintiff for ten years, at an annual rent of $5,000. The lease was under seal, and had been recorded. By a subsequent parol agreement the rent was reduced to $1,000, and the lessees paid this sum to the lessor, taking his receipt in full therefor, until the property was conveyed to the plaintiff, who demanded the rent specified in the lease.

      Charles Edward Souther and Everett P. Wheeler, for the appellants.
    The jury should have been allowed to pass upon the issue of fact in respect to the agreement. (Wmchell, Ehr., etc., v. Hick.s, 18 N. Y.,_558 ; O'Neill v. James, 43 id., 84; Barnes v. Perine, 12 id. [2 Kern.], 18. A lease may be surrendered otherwise than in writing. (2 R. S., 139, § 6. [Edm. ed.].) The making of a new lease of the same premises to the same tenant, during the term of an existing lease, operates as a surrender of the prior lease. (Yiner’s Abridgment, tit. “ Surrender,” F., and cases cited ; Roberts on Frauds, 253, 255, and cases cited; Platt on Leases, vol. 2, p. 506, and cases cited; Woodfall’s Landlord and Tenant [10th Eng. ed.], 267, et seq., and cases cited; Kent’s Commentaries, vol. 4, pp. 103, L04; Brown’s Statute of Frauds, 47, 49-55, and cases cited ; Wash, burn on Real Property [3d ed.], vol. 1, pp. 475-480, and cases cited; Livmgston v. Potts, 16 Johns., 28; Van Rensselaer’s Heirs v. Penniman, 6 Wend., 569.) The assignee of a reversion stands in the shoes of his assignor. (1 R. S., 698, § 23 [Edm. ed.] ; Van Rensselaer v. Hays, 19 N. Y., 83.) The new lease need not be in writing. (Yiner’s Abridgment, tit. “ Surrender,” F., and cases cited; Mellows v. May, Cro. Eliz., 874; Thomas v. Cooke, 2 Starkie, 408 [1818]; S. C., 2 B. & Aid., 119; Lyon v. Reed, 13 Meeson & Welsby, 284 [1844] ; Nickélls v. Atherstone, 10 Q. B., 943 [1847] ; McDonnell v. Pope, 9 Hare, 705 [1852]'; Van Rensselaer’s Heirs v. Penniman, 6 Wend. 570 [1831]; Schieffelin v. •Carpenter, 15 id., 400 [1836] ; Smith v. Niver, 2 Barb., 180 [1848]; M'Kinney v. Reeder, 7 Watts, 123 [Penn.].) The new agreement here was executed, and an executed parol agreement may always vary or discharge a specialty; and because it is not the agreement alone, but the thing done under it, that is relied on. {Keating v. Price, 1 Johns. Cas., 22 [1799] ; Fleming v. Gilbert, 3 Johns., 528 [1808] ; Lattimore v. Harsen, 14id., 330 [1818] ; Dearborn v. Cross, 7 Cow., 48 [1827] ; Delacroix v. Buckley, 13 Wend., 71 [1834]; Townsend v. Empire Stone Dressing Co., 6 Duer, 208 [1856]; Dodge v. Crandall, 30 N. Y., 294 [1864] ; 9 Alb. Law Jour., 297, and cases cited ; Dickinson v. Commissioners, etc., 6 Porter, 128 [Ind.]; White v. Walker, 31 111., 422, p. 17, fols. 58, 59.)

      John L. Cadwalader and S. P. Hash, for the respondent.
    The alleged agreement to reduce to $4,000 was nudum pactum. (1 Chit, on Cont., 62 [Am. ed. of 1874] ; Parmelee v. Thompson, 45 N. Y., 58.) In order to effect a surrender by act or operation of law, there must be a mutual agreement between the parties, that the lease shall terminate, and an actual yielding up of the premises'. {Bed-ford v. Terhune, 30 N. Y., 453; Whitney v. Myers, 1 Duer, 266; McKenzie v. Farrell, 4 Bosw., 192.)- Strictly, a surrender by act or operation of law, exists, only when the new estate accepted by the lessee is created in writing. (Rob. on Frauds, 253, 254; 2 R. S., 134, 135, § 6; 4 Kent Com., 103, 104.)
   Brady, J.:

The defendants are tenants under a lease for ten years from May, 1869, at an annual rent of $5,000. That lease was under seal, contained the usual covenants, and was duly recorded. It was executed by Louisa A. Ingersoll, then the owner of the fee, who, on the 15th May, 1873, conveyed the premises, subject to the lease, to the plaintiff. This action was commenced to recover $1,250 for rent of the premises, due on the 1st August, 1873. The defense was that, before the purchase by the plaintiff, his grantor and the defendant’s lessor had reduced the rent to $4,000; that the lease had been surrendered, and that the defendants, from February, 1872, to May, 1873, had occupied the premises as tenants, from year to year, at the 'reduced rent already named. The change in the character of the tenancy thus averred, resulted from the surrender and the new agreement by which it was accomplished. The agreement was not in writing. In proof of the surrender, the defendant Joseph IT. Hobby testified as follows: “I am a storage merchant, and my office is at 247 South street, in the city of New York; have occupied the premises in question about ten years; I entered into possession under the lease, which has been introduced in evidence; in or about the quarter commencing November 1, 1871,1 informed Mr. Ingersoll that we could not pay so large a rent, that it was too large, and that we must come down to the original price which we at first agreed upon, and which was $4,000, or $1,000 per quarter; he did not feel inclined to acquiesce in this, and wished me to wait until the next year; I replied that we could not do it — that other parties would give me twenty per cent off; so I paid him $500 on account of this quarter’s rent, and Mrs. Ingersoll then commenced suit against us for the balance of $750, and sent her attorney to me with propositions of settlement, which were not accepted; her attorney was a gentleman named Hollis; he asked me what proposition I had to make, and I told him; he went to Ingersoll and came back to me and said that if I would pay the costs of court he would withdraw the suit, and the rent should be $4,000 a year; I did so, and have paid that rent np to the time Mr. Coe demanded of me $1,250; the costs which I paid were, I think, seventeen dollars and fifty cents, and for the respective quarters’ rents which I paid, I took the receipts now shown me.”

He further testified as follows :

Mr. Ingersoll never asked for more rent; he did ask permission to sell the store, and told me I should have $2,000 if I got a customer and moved out, and $1,000 if somebody else sold it, and I moved out; Oliver Ingersoll followed me up in South street, and told me his father had authorized him to make that offer; I did not make any bargain to continue any longer than till he could sell the store, provided he gave me the $1,000 and gave me notice.
Q. You agreed to move out on three months’ notice, if paid your expenses ? A. Yes, sir.
“ Q. I am speaking of the other point — I understood you to say you did state to Ingersoll, after you paid the costs, and suits discontinued, that you had agreed with Hollis that this reduction of rent was to continue as long as you were a tenant there? A. Yes, sir.
“Q. And not for a year, there was no such statement made? A. No, sir; provided he sold the store —
“ Q. Then you were to have the privilege of moving out on giving three months’ notice? A. Yes, sir.
“ Q. The reduction of the rent was to continue as long as you stayed? A. Yes, sir.”

The payments of rent after the agreement thus stated to have been made were at the rate of $4,000 per annum, and receipts were given in full for the rent thus paid, up to the time -when it became due. The surrender, as already suggested, was by parol; if at all, confirmed by the receipts of the rent in full, which were in writing. Hpon the conclusion of the evidence, the defendants asked leave to go to the jury on the question of fact, whether the agreement, which was disputed by the plaintiff, was made as testified by the defendant Hobby. This request was denied, and the defendants duly excepted. It was necessarily conceded that a surrender may be made by act, or operation of law. (3 R. S. [5th ed.], 220.) It may be inferred from the conduct of the parties. It is not necessary that there should be an express agreement for the purpose. (Bedford v. Terhune, 30 N. Y., 463.) It maybe initiated, therefore, by a parol agreement, and con firmed by the acts or conduct of the parties. If the surrender rests upon a new or second lease while the first is running, it seems to be essential that the second lease shall be a valid one. It is, however, said Nelson, J., conclusively settled, by authority, that the second lease must be a valid one, so as to convey the interest it professes, to convey to the lessee, and also to bind him to the performance of the covenant or agreement in favor of the lessor, in order to operate-as an effectual surrender of the first one. (Schieffelin v. Carpenter, 15 Wend., 406.)

Hence, it was held in this case cited from the 15th Wendell, that, a parol lease for more than a yeax to a third person, though he takes possession, will not operate as a surrender. This same rule was applied in Whitney v. Meyers (1 Duer, 266), and both cases are cited approvingly in Bedford v. Terhune (supra). In this case it appears, from the defendant Hobby’s evidence, that the new arrangement was to the effect, namely, that he was to pay $4,000 per annum as long as he remained, with the understanding that if the premises were sold by his lessor, he was to have the privilege of moving out, on giving three months’ notice. If this agreement, assuming it to have been made, is valid, within the rule stated, then the defendants were entitled to a submission to the jury of the question involving its alleged existence. The surrender does not depend upon the doctrine of consideration, but upon the intention of the parties, indicated by, or to be inferred from, their acts. (Van Rensselaer’s heirs v. Penniman, 6 Wend., 570; Schieffelin v. Carpenter, 15 id., 406; Smith v. Miner, 2 Barb., 180; McKinney v. Reeder, 7 Watts, 123; McDonald v. Pope, 9 Hare, 705; Thomas v. Cooke, 2 Starkie’s Rep., 409; Bedford v. Terhune, supra.)

The lessor has the right to change the relations existing between himself and his tenants, if they prefer that he should, and it may well be conceived that it might be advantageous to the reversion, to relieve the estate from the burden of a long lease. The grant of a second lease, however, is inconsistent with the continued existence of the .prior one, and the effect of that inconsistency is equally binding upon both parties, lessor and lessee. (Cases, stcpra.) The rigorous rules which prevail in reference to sealed instruments generally, do not apply to leases which, as we have seen, though resting in covenants, may be surrendered — that is, yielded up and canceled — and the parties released, therefore, from their covenants, by acts which establish it, or by operation of law. The only condition which seems to attach, by the law of this State, when the surrender is by a second lease between the same parties, during the life of the first, is that the second agreement or lease shall be valid, according to the intent of the parties. On this subject a statement of the defendant Hobby, upon cross-examination, is important. He was asked whether he meant to say, if he stayed on the premises the whole ten years the reduced rent was to be continued, and he answered in the affirmative. It appears clearly, therefore, that in his interpretation and understanding of the agreement, it had relation to the whole term of the lease, subject only, to a sooner determination of the demise by a sale of the premises. This is confirmed by the provision giving him the right to remove, if the premises were sold, after three months’ notice of his intention so to do. The new lease thus asserted was invalid as such, resting in parol. It was for a period of ten years, in contemplation of the parties, and made the defendants tenants at will. It is within the adjudication of Schieffelinw Carpenter [supra), in which it appeared that the alleged ■new letting was to a stranger, by parol for eight years. An implied tenancy at will only was created, it was said, which enabled the tenants to hold from year to year, for the purpose of notice to ■quit, but which they could terminate at any moment they pleased. The agreement conferred, it was also said, no rights upon the plaintiff, further than to recover his rent while they continued to occupy, and, perhaps, a quarter’s rent if they abandoned the occupation, .after the commencement of a quarter and before its termination. It was suggested, also, that- if the agreement had been made with -the original tenant, the result would be the same. The second lease failed to have the effect claimed, namely, to pass the interest in the premises according to the contract, or, in other words, to carry into legal effect the intent of the parties making it, and was declared to be invalid. The same result attains here- The agreement cannot be effectuated. It fails to satisfy the rule of law stated. It is not valid. It cannot carry out the design of the parties, which was to extend it over the period of the demise, and which could not be done by parol. That is the only consideration, if any, which seems to be demanded.

It is quite apparent, also, if the agreement was made, that the only object in view was the redaction of the rent, and nothing more. The term was to continue, but the rent was to be $1,000, instead of $5,000, per annum. This change could not be obtained by surrender; such an act contemplates the whole estate, because the contract is entire, and incapable of being divided or avoided for part, and left standing for part. (Roberts on Frauds, 251.) It could be accomplished only by an agreement therefor, which was binding, either because of the consideration on which it was founded, or of some other principle giving it vitality and force. It rested in parol, unless the receipt converted it into writing. But in either case it has no support, because it has no consideration to sustain it. The payment of the rent, whether in whole or in part, was the discharge of an existing obligation. The payment of the costs, in the action commenced against the defendants, was also the discharge of an obligation, imposed by the law of the land.' The defendants surrendered nothing; paid nothing; in fact did nothing to which we have been referred, bejmnd what they were bound to do prior to the agreement, as to the reduction of rent, assuming it to have been made for the whole term. It is true, as claimed by the defendants’ counsel, who has presented his case with great ingenuity, exhibiting labor and research, that an executed parol agreement, upon a siofficieni consideration, may operate to discharge the stipulations of a sealed contract, but this case is not within the terms expressed. There is no consideration whatever. If the terms of the contract created by the change had, in any way, benefited the lessor, or in any way damaged the defendants, we might, from such a circumstance, have presumed a consideration; but from the facts detailed on behalf of the defendants, giving them the full benefit of all disclosed, it is clear that the reduction of the rent was voluntary and gratuitous, and without consideration. The judgment must, therefore, be affirmed, because the surrender was incomplete, and the agreement to reduce the rent, void for want of consideration.

Davis, P. J., and Daniels, J., concurred, on the ground the agreement was void.

Judgment affirmed.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    WALTER R. WOOD and CHARLES P. WILLIAMS, Appellants, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondents.

      Agency — Liability of municipal corporation, under contract made mill its agents — chap. 202 of 1870.
    The plaintiffs having furnished materials for the erection of a court-house, upon the purchase thereof by commissioners designated for that purpose under chapter 202 of 1870, and authorized to locate and erect a court-house in the city of New York, for the purposes of the city, hut having no continuous or-corporate powers, held, that the city was liable therefor.

      Maximilian v. Mayor (9 N. Y. S. C. [2 Hun], '263) distinguished.
    Appeal from a judgment dismissing the complaint and directing exceptions to be heard in the first instance at General Term.

      James W. Gerard and John M. Bowers, for the appellants.

      D. J. Dean, for the respondents.
   Brady, J.:

The plaintiffs furnished materials toward the erection of a courthouse, upon the purchase thereof by the commissioners designated for that purpose, under an act of the legislature, passed April 14, 1870 (chap. 202, Laws of 1870). The act provided, that within ten days after its passage, the mayor should appoint one commissioner, who, together with two police justices, then holding court in the district named, should be commissioners to locate and erect, in that district, a suitable building to be used as a court-house. The commissioner having been selected by the mayor, he, in connection with the police justices contemplated by the statute, entered upon the discharge of their duties, and in their fulfillment purchased the materials already referred to. Issue having been joined, the cause came on duly to be tried, and the complaint was dismissed upon the authority, it was said, of the case of Maximilian v. The Mayor (9 N. Y. S. C., 263). The plaintiff also applied for a mandamus to compel the payment of their claim, but were met by the objection, that they had an adequate remedy by action against the commis sioners, and the application was denied. These respective legal attitudes of the defendants seem to.be inconsistent, but may be reconciled by the proposition declared on their behalf, that the commissioners are not their agents or servants. It does not seem to be questioned however, that if the converse of this proposition be correct, the defendants are liable to an action at the instance of the plaintiffs.

The question thus presented is easy of solution. The building to be erected was to be placed upon the land of the defendants, and for purposes not only connected with the affairs of the municipality, but peculiarly local. The commissioner to be selected and the police magistrates who were to act with him, were all city officers, and were to render a service for the city in reference to a corporate matter or duty, namely, providing a place in which to hold a city court. The commissioner to be appointed, it was no doubt designed by the legislature, should be a person having experience in building, and the justices were united because of their supposed knowledge of the locality and its wants, and of their experience and observation, as to the better plan to be adopted in the construction of the building. They had no interest in or power over the building, except for the purposes of its erection, and were subject to the supervision, of the courts in the exercise of that authority. It was limited by the statute, and under control. They were not independent of the city government, but its agents, specifically designated for a particular purpose to act in their behalf. They were acting for, and on behalf of, the city, selected to accomplish the result desired, as the best means by which it could be obtained. The case of Maximilian v. The Mayor bears no analogy to the case, and is not at all applicable. The doctrine of that case is, that a municipal corporation is not liable for omissions of duty specifically imposed upon one of its officers. The action was one sounding in tort. The plaintiff sought to recover damages sustained by the death of his intestate, caused by injuries received through the negligence of one of the subordinates of the board of health. It was declared in that case that, under the laws, the entire management and government of the department were confided to the commissioners, and that included-the appointment, control and direction of all subordinates employed in it. And, further, that the subordinates were solely and exclusively the servants of the commissioners as public officers, whose powers and duties were prescribed by the laws of the State, and that the commissioners were not in, the service of the city, but of the public, having their own functions and authority, prescribed and defined by the laws of the State, and not subject to the control, restraint or direction of the city or its.mayor. The act of 1870 (supra) declared that the building, erected under the superintendence of the commissioners, shall be the property of the mayor, aldermen arid commonalty of the city of New York. It was to be erected on real estate belonging to the corporation (§ 2), and by section 3 it was provided that, in the performance of their duty, the commissioners might employ the necessary assistants, for which payment should be made by the comptroller in the usual method of making payments for city purposes, upon vouchers to be approved. The commissioners were to act for the city in reference to its property, charged with a special duty, which, when performed, ended their power, and they ceased to have any authority over the subject. They were to locate and erect a building for and on behalf of the city, and as its agents so constituted by law, having no corporate or continuous power, or indeed any other power than to locate and erect the building. The case is analogous to The People v. Van Nort (reported in 64 Barb., 205), in which it appeared that the commissioner of public works was authorized, in his discretion, to cause water meters of an approved pattern, suitable for the purpose to be designated by him, to be placed in all stores, workshops, hotels, etc. The statute authorizing this proceeding, it was held, was a deliberate declaration by the legislature that the transaction should not be subjected to the general provision of the charter in reference to contracts. The whole subject was placed in the hands of the commissioner. He acted for the city. The commissioners selected to locate and erect the building contemplated by the act of 1870 (supra) acted for the city, the subject embraced was placed in their hands, and the corporation designed to be the paymaster for the expense. The judgment, for these reasons, should be reversed.

The motion for a mandamus was properly denied, because the remedy was by action.

The result of this review is, therefore, that the judgment be reversed and a new trial granted, with costs to abide the event, and that the order appealed from be affirmed with ten dollars costs and disbursements, to be adjusted upon the termination of the action.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


text:
    PETER V. KING, NATHANIEL W. CHATER and JOSEPH LENTILHON, Appellants, v. DOMINGO SARRIA, Impleaded with PEDRO A. GRAU and MANUEL F. LOPEZ, Respondents.

      Limited partnership —laws of foreign State — recognition of.

    The defendant, a resident of Cuba, complied with the laws of Spain relating to special partnerships, so far as to protect himseli there from partnership liability. Held, that he was exempt from liability, as a general partner, in transactions of the firm with citizens of this State.
    Appeal from a judgment entered on the report of a referee, dismissing the complaint.
    The referee in this case found that the plaintiffs were partners doing business in the city and State of New York under the firm name of Peter Y. King & Co.-; that the defendants were aliens, subjects of Spain, carrying on business in the island of Cuba, and had business with the plaintiffs relating to advancements by plaintiffs on shipments consigned to plaintiffs for sale by them in New York, as factors.
    That the defendants constituted the firm of Grau, Lopez & Co., composed of Pedro A. Grau and Manuel Lopez as general partness, and Domingo Sarria as comanditario, or special partner.
    That tlie defendant Sarria never bad any partnership connection with the said defendants Grau and Lopez, other than that of' comanditario. That be did not use, nor permit his name to be-used, in the firm style or name, nor by any representation, act, oft omission, render himself liable as a general partner.

      That said defendant Sarria had not at any time by representation, or-by acts, or otherwise, held himself out as a general partner of said firm.
    That said limited partnership of Gran, Lopez & Co. was, on the 31st day of December, 1869, indebted to plaintiffs for advances, charges, interest and commissions, in a balance amounting to the sum of $99,487.20.
    As conclusions of law, among others, that the liability of the defendant Sarria in this case, is to be determined by the laws of Spain, and not by the laws of the State of New Tort.
    That judgment should be entered herein, directing and adjudging that plaintiffs’ complaint herein be dismissed upon the merits, as against the defendant Sarria, and that said defendant Sarria recover of plaintiffs his costs in this action.

      S. P. Nash, for the appellants.

      Augustus F. Smith' and F. P. Goudert, for the respondents.
   Brady, J.:

The findings of fact by the referee are sustained by the evidence, and the question presented by this appeal is,-whether the defendant Sarria can avail himself of his rights secured by the character of the compact which he made with the other defendants, at his domicile in the island of Cuba, where his relations with them were established.

The general characteristics of that arrangement are, that the other defendants should carry on the business, and that he should be liable for losses only to the extent of the capital which he contributed, unless by some act of his, which would produce such a result, he incurred the responsibility of a general partner. There •is, in the code of commerce of Spain, of which extracts were put iin evidence, nothing which by any of its articles entails such a liability, either for any omission made or acts done by him.

He omitted nothing under the code, which was necessary to his security, and did nothing by which it was forfeited. This result is not only warranted by the code itself properly considered, but by ■the evidence of the experts called to testify upon the subject. The effect of not observing the particular forms and solemnities especially established by the code is to impair, perhaps, the obligations of the contract of the parties inter se, and therefore affects their rights, each as to the other, and further to endanger their success in any action commenced by them for the enforcement of their rights. (Arts. 28, 236, 285.) The liability of special partners is, by article 273, limited to the funds which they have contributed except in case of violation of article 271, which declares that they cannot include their names, in the firm names of the copartnership. Nor can they (art. 272) perform any act of administration touching the interests of the copartnership, nor act even in the capacity of attorneys in fact, of the general partners. They must be special partners in fact as well as by form, and not mislead by a false position which would induce the conviction that they were general partners. While the various articles of the code relating to the subject authorize the formation of limited partnerships, they do not fail to wind about the special partner the cords by udiich he shall be kept in place and prevented from departing from it without serious consequences. The contract, therefore, between Sarria and the other defendants forming the partnership, was authorized by the law of the land where it was made, and his liability has not by any act or omission of his been enlarged. It seems to have been a subject of discussion, whether the character of the obligations of a special partner has any existence beyond the territory, by the laws of which it was created, but upon what just principle it is difficult to understand.

If foreign traders seek commercial relations, for example, with the people of this State, and they present themselves as a firm, it rests with our citizens to ascertain the persons who form, and the nature of the copartnership, and then to determine whether or not they will enter into transactions with them. It may be that the spirit of enterprise or barter cannot be impaled on such conservative notions, and that “nothing venture nothing win ” is more in harmony with the business life of our people; but when a transaction is viewed from the standpoint of natural justice and equity, it seems to be inevitable sthat no man shall incur a responsibility against which he protected himself by the laws of his country without some overt act of his own. This reasonable appreciation and adjustment of the question appears to have commended itself to Wharton (Conflict of Laws, §§ 468, 469, 470); Judge Redfield (Story’s Conflict of Laws [7th ed.], § 320; and Westlake’s Private International Law, articles 211, 212), and the latter writer suggested that when the copartnership is to be assailed, it seems impossible to set it up at all, without at the same time importing the limit, to which the liability was restricted. The question has received consideration also in Rhode Island, in the case of Barrows v. Downs, affecting a Cuban firm (reported in 9 R. I. Rep., 446), and decided in favor of the special partner. These views express a result which is thought consonant with justice and equity, and' ought to be sustained by this court.

If a foreign firm, organized under the laws of its domicile, cannot deal with any other people without subjecting the special partners, by the mere effect of their relation to it, to liabilities of a general character, in derogation of the rights secured by the compact which they lawfully make, the effect must be to restrict commercial enterprise and intercourse, and in effect inhibit to some extent at least mercantile dealings. This is against public policy, and, therefore, public good; against the laws of natural justice and equity, and therefore in violation of the honorable principles which should distinguish the administration of justice.

It would be giving tribute to the abandonment of that ordinary prudence which leads men to investigate and to ascertain who are the persons with whom they are dealing, and the liability of each, according to the relation which he may occupy. It is quite apparent, for example, that if the plaintiffs had sought to know who was the company of the defendant’s firm, they would have been advised that the designation was ornamental only, and therefore that they must look to Gran and Lopez in their dealings.

Having arrived at these conclusions, it becomes a duty to affirm the judgment, for there is no other element in this case sustained by facts or bv law, which would warrant us in disturbing it.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


author: Brady, J. : Daniels, J.,

text:
    JAMES BRENNAN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Pape — evidence — admissibility of, as to character of complainant in prosecution for.

    On a trial for rape, evidence that the complainant was a woman of drunken and dissipated habits, sleeping generally in the hall-ways of a tenement house, and accustomed to go in at two or three o’clock in the morning, is admissible as evidence in itself, of general immoral character, and within the principle of Woods v. The People (55 N. Y., 515).
    The complainant testified on cross-examination, that she did not go with a man to a liquor shop and afterward accompany him to a lumber yard, and endeavor to get him to have carnal intercourse with her. Held, that it was material to the question of the character of the witness for truth and morality, and that it was error to exclude evidence establishing such facts.
    Writ of error to tlie Sessions, to correct the conviction of the plaintiff in error of rape.

      William F. Howe, for the plaintiff in error.

      Benjamin K. Phelps, district attorney, for the defendants in error.
   Brady, J. :

The plaintiff in error, Brennan, was convicted of the offense of rape and sentenced to ten years in the State prison. He was one of six persons engaged in the commission of the offense, only one of whom, but not he, had sexual intercourse with the complainant. He was about twenty years old when convicted, and she was about seventeen when the alleged outrage was perpetrated. The facts and circumstances, which were stated by Judge Sutherland in his charge, were peculiar, if not extraordinary. The intercourse took place behind a pile of lumber, to which the prosecutrix, she said, was dragged by Brennan and the others. He then took the rings off her fingers with his teeth and keeping his hand on her mouth, two of the others held her by the feet, and two more held her by the arms, while Lane, also convicted, ravished her. Brennan did not seek to assault her otherwise than as stated, and would seem, assuming her statement to be true, to have been assisting Lane to accomplish a guilty purpose. We are thus advised of the precise situation of the six persons who surrounded her, and dragged her to the place where the offense was committed. There was evidence tending to show, that on the afternoon of, and a short time before the alleged wrong, she was sitting near the lumber with a man unknown, between whom and her there were exchanges of affectionate embrace, after which, both were seen to retire behind the lumber or between the piles of lumber, in the vicinity of where they were seated. The learned judge, in charging the jury, gave the plaintiff in error all the advantage in the statement of the rules of law on the subject which would ensue from proof that the complainant was a prostitute, but at the same time, he presented with much force and emphasis the truthful and just proposition, that a woman of 'bad character might be assailed and outraged by the offense for which the prisoner stood charged. It may be said perhaps, with propriety, that this legal conclusion was made so prominent as to overshadow, if not to overcome the just inferences which might be drawn from the character of the complainant, if found to be bad, that she would not refuse to jiermit voluntarily, what she alleged to have been forcibly accomplished. There was no. direct evidence that she allowed sexual intercourse with her, but an array of facts and circumstances was made, from which it might be determined that she had done so, the most important of which was, that she was seen under suspicious circumstances with an unknown man in the vicinity of the piles of lumber. The question whether she was the person thus seen, necessarily depended upon satisfactory proof of her identity, and the persons testifying on the subject had only seen her from a distance, and described her by her dress and general appearance only. On the trial, however, the plaintiff in error offered to show, by a witness on the stand, that the complainant was a woman of drunken and dissipated habits, sleeping, generally, in the hall-way of a tenement house, and accustomed to go in there at two or three o’clock in the morning. This was excluded and exception taken, the court stating that it was not meant to exclude proof of her general reputation for truth and veracity, or any other evidence as to her moral character. The plaintiff in error was confined, therefore, to proof as to general character for morals, truth and veracity, and prevented from showing particular acts which it would seem were, in themselves, evidence of general immoral character. The plaintiff in error also offered to show, by a witness then on the stand, as follows : “Counsel — I offer to show, now, by Mr. McCarten, that on the day in question, the fifth day of September, he met this complainant in the street; that he gave her a chew of tobacco; that she went to a liquor saloon with him in the vicinity, drank liquor with him in Myers’ place, in Forty-ninth street and First avenue ; after which she accompanied him to the lumber yard — to the very lumber yard — and endeavored to get this man to have carnal intercourse with her,” which offer was excluded and exception noted. The first offer, as to the dissipated habits of the complainant, seems to be within the principle or doctrine of Woods v. The People (55 N. Y. Rep., 515). The fair inference to be drawn from such conduct was, that she was a'dissipated and immoral woman, ready for any form of immorality, whether of sexual intercourse or otherwise, which might be demanded of her. Such conduct is not consistent with a virtuous life, and marks the existence and progress of moral depravity. If the legitimate conclusions to be drawn from general conduct, are such as to warrant the particular charge made, evidence of general conduct should be received in such a case as this, for that purpose, although each act of such conduct, considered by itself, would be proof of a particular fact. The offer made in the case cited was not to show the general reputation of the complainant, but that she was in the habit of receiving men for promiscuous intercourse, and especially for liquor. This evidence, the court said, was competent, not for the purpose of impeaching the general credibility of the witness, but upon the (piestion whether she assented to the intercourse with the prisoner. The offer to show by McCarten what has been stated was, in part, for the purpose of contradicting the complainant. She was asked whether she did not go with him to a liquor shop and drink ; and whether she did not go to the lumber yard with him, and she answered no to each inquiry. It was objected that the cross-examination, in this respect, was upon matters immaterial to the issue, and that there could be no contradiction of the replies. This view of the question was erroneous. (The People v. Abbot, 19 Wend., 192.) The issue involved the character of the prosecutrix for truth and veracity, morality and chastity, not because though she were ever so bad she might not be outraged, but because the presumptions in such prosecution as- this, against the necessity of employing force, must exist when the character of the person assailed is shown to be immoral and wicked. This view is sustained b} the case of Wood v. The People and The People v. Abbot (supra), and is to be eliminated from all elementary books on criminal law. This evidence was important, not only as affecting the veracity of the complainant, but her character for virtue. It supplied, in effect, the proof of identity, which was in doubt upon the subject of whether she was seen in the vicinity of the lumber on the day the rape was alleged to have been committed, and proved that she solicited a man to have intercourse with her. Any fact tending to the inference, that there was not the utmost reluctance and the utmost resistance is always received. (The People v. Abbot, supra; approved, People v. Dohring, 59 N. Y., 383.) This testimony, coupled with the offer to show her habits of life, established connecting links which could leave no doubt of her general character. It was of great importance to Brennan, because, as said by the learned judge, in his charge, “ as to Brennan there is no evidence in this case except that of the girl, that he was one of the five that ran. Ilis identity as one of those who committed the assault rests entirely upon her testimony.” Whatever lessened tbe weight of that testimony should have been received, if within the recognized and liberal rules of law applicable to a defense on a charge of rape. The good character shown by the accused, together with the doubt the excluded evidence might have created, if admitted, we cannot say would not have operated, to secure his liberation. The combination would have been a strong one, unless overcome by evidence as to which we cannot speculate. The defense was limited to lines too tightly drawn, and the plaintiff in error hold to a regimen of proof, too strict for prosecutions like this, which, while abhorrent in character, have been often trumped up for security from disgrace, or to accomplish some evil design. I think that the evidence of McCarten was also admissible as independent proof of a criminal act on the part of the prosecutrix, which had a legitimate bearing upon the issue presented, and rest on the authority of The People v. Abbot (19 Wend., 192, supra), as an able, philosophical and just exposition of the law on that subject, applicable to cases of tliis class. The punishment for the offense is severe, and it should be, but the investigation of the charge should he full, fair, impartial and libera], especially when there is reason to believe that the prosecutrix is unchaste. I think the judgment should be reversed.

Davis, P. J., concurred in the result.

Daniels, J.,

concurred, on tbe ground that the offer of evidence first made should have been received.

Judgment reversed, new trial ordered.


author: Brady, J.: Daniels, J.:

text:
    THE TRIBUNE ASSOCIATION, Respondent, v. THE SUN PRINTING AND PUBLISHING ASSOCIATION and WALTER W. ADAMS, Superintendent of Buildings, Appellants.

      Building law — chap. 625 of 1871 — powers of superintendent under — Injunction— when allowed to pi'event trespass.

    The powers of a public officer, under an act of the legislature for the protection of life and property — & <7., the superintendent of public buildings in New York — are limited to the exercise of a proper discretion, and the exigency of the circumstances, and he will be restrained by injunction from an arbitrary exercise of power.
    An injunction maybe granted to restrain a trespass, when irreparable injury ma^ result from the threatened wrong.
    Appeal from an order continuing an injunction, restraining tbe defendants from taking possession of a lot of ground of tbe plaintiff.

      WiUard Bartlett, for the appellants.

      Cornelius A. RunMe, for the respondent.
   Brady, J.:

The plaintiff and the defendant the Sun Printing and Publishing Association .are the owners of adjoining property on Frankfort street, in the city of New York. In October last the plaintiff took down the building on its lot, and began to excavate for the foundation-walls of a new building. While the work was in progress the plaintiff was directed to stop by the defendant Adams, on the ground that the wall of the adjoining building, belonging to the Sun Association, was unsafe and dangerous, and liable to fall. Complaint having been made, according to the provisions of the building law, against the Sun building, such proceedings were had that a precept was issued requiring and directing the defendant Adams to take down the easterly wall of the Sun building from the foundation to the third tier of beams.

The'defendant Adams and the Sun Association threatened to take possession of the plaintiff’s property, to use the same for the purpose of taking down and repairing the wall, and the plaintiff brought this action to prevent such use. The question presented is, whether they are entitled to such relief. The power of the legislature to enact laws for the protection of life and property cannot be questioned, and it is not necessary at this period to illustrate, by citation of authorities, a proposition so essential to the existence of government itself. The right of the authorities to interfere, therefore, through their officers, in a proper case, to prevent the falling of a wall or building, or other structure, the continuance of which would be dangerous to the property or lives of others, should not be the subject of discussion founded upon doubt. There is, however, a qualification imposed upon the use of this power, and it is that the emergency shall prevail which renders its exercise necessary. The existence of a law for a special purpose does not give unlimited authority to the person selected to carry out its provisions. He does not rule with absolute sway. Such a law, which is generally remedial in character, and in the nature of a police regulation, is based upon emergencies that may arise requiring summary proceedings ; and it is exigency, therefore, on which it rests. The ordinary process, by action at law, would be toó dilatory, and therefore utterly valueless to effect the object to be attained. The health laws are of this character, and demonstrate the necessity of both the' power of the legislature to act, and of the speed to be employed for the end to be accomplished, which may be to prevent the spreading of a fatal epidemic.

"When the contemplated emergency presents itself, the authorities are not only called upon to act, but should do so promptly, in the discharge of their duty to the public. If the thing to be done has. a purely local situs, such, for example, as a wall to be taken down, or sustained, and it cannot be done without invading the property of another, the exigency authorizes the invasion, and it must be. submitted to.

The sacrifice which is thus made, if any, is a contribution to the general good which every citizen is called upon to make, and .upon which the fabric of society depends. Whether the emergency really exists is, however, a subject under the control of the courts, and their process may be invoked for protection, if protection should be necessary. The law under which the defendant Adams essayed to enter upon the plaintiff’s land recognizes this element, because it provides, by section 44, that all officers appointed under its provisions should, so far as necessary for the performance of their respective duties, have the right to enter any building or premises; and by section 38, which provides for a summary trial by jury of the question, whether buildings, premises or structures surveyed and condemned, are really unsafe or dangerous. (Act of 1871, chap. 625.)

The principle thus stated does not, in any way, interfere with or restrict the power of the department of buildings to determine what is to be done, but the manner in which it is to be done. In other words, whether, in taking down or repairing a wall it shall be done by entering upon and occupying the land of another person. The legislature did not design to invest the superintendent of buildings with absolute unlimited authority on that subject, or to give him uncontrollable discretion in regard to it. It can be done, only so far as necessary, in the language of section 44, already referred to. The plaintiff in this action, as already suggested, sought to restrain the defendants from entering upon their premises, or occupying or using the same for the purpose of repairing the wall to which proceedings had related, and the relief demanded was asked, upon the sworn statements that the defendant Adams said he intended to put the Sun Printing and Publishing Company in possession of plaintiff’s lot, and that the repairs could not be done without entering upon the premises of the plaintiff, which statements were not denied.

It was upon this ground that the learned justice at special term continued the injunction. He said the plaintiff had shown, among other things, “ that Adams, without any necessity or authority of any court, is about using the plaintiff’s premises to do work which can be done by the use of the premises of the defendant, whose wall is to be repaired or made safe; ” and “that though the other defendant substantially alone contested the case, there was no attempt to contradict the plaintiff’s case, and no denial of any fact set up by the plaintiff.”

The plaintiff’s case not only rested upon the fact that the use of its land was not necessary to enable the repairs to be made, but upon the further fact that its building was unfinished, and tha-t if prevented, as it would be if its land was taken, from proceeding with the building, and putting its boilers in the same, “ thereby being, as alleged, prevented from properly heating it during the then coming winter, the loss and damage would be 'incalculable and irreparable.” It thus appears that conceding to the defendants the construction placed by them upon the act of 1871 (supra), through their learned counsel, excepting, however, his view of the absolute power of the discretion vested in the superintendent, the propriety of the injunction is manifest. The case of Underwood v. Green (42 N. Y., 110), to which he called our attention, is an adjudication against his proposition in referenee to the discretion mentioned, and affirmatory of the doctrine of this opinion on that subject. In that case the plaintiff’s dead hogs were taken from the cars of the Hudson River Railroad Company, and carried away under the direction of the city inspector, by virtue of an ordinance requiring him to cause all putrid and unsound beef, pork, etc., found in any street or other place in the city, to be forthwith removed and disposed of by removal beyond the limits of the city, or otherwise, so as most effectually to secure the public health. The court said, in pronouncing judgment: “ While it must be conceded that the inspector, in the discharge of his duties under the ordinance, is clothed with a judicial discretion, jet he is an officer of a limited and special jurisdiction, and when in any given ease his power is challenged, he must prove some facts invoking, or tending to invoke the exercise of his discretion. For instance, he could not go into a store and arbitrarily confiscate a stock of hides, merely upon the allegation that they were dangerous to public health. He would have to show that they were putrid, or in some way dangerous to public health, and when he had shown this, then he would make a case calling for the exercise of his discretion.” In this ease, when the defendant Adams was called upon to show the necessity of entering upon the plaintiff’s land in order to do his duty, he should, or the other defendant should, have shown that it was necessary to do so, and then lie would have made a case calling for the exercise of his discretion.

Neither he nor his co-defendant did so, and the right to exercise the contemplated power was not sustained. The order appealed from should for these reasons be affirmed, with ten dollars costs and disbursements.

Daniels, J.:

The apprehended act which was made the subject of the application for the injunction would have been a trespass, -and, under ordinary circumstances, not subject to that restraint. But the rule which denies an injunction to restrain a trespass has its exceptions, as well established and clearly defined as the rule itself, and one of them includes the case where irreparable injury may and probably will result from the threatened wrong. The complaint in this action presented facts sufficient to show such a case. For that purpose it was stated, that the ground owned by the plaintiff, which the defendant proposed to occupy to repair the wall of the building owned by the Sun Printing and Publishing Association, was necessarily required by the plaintiff for the erection of a building to contain the apparatus required to supply its tenants with heat, and which it had become obligated by its leases to them to supply ; that without it the leases made with such tenants could hot be performed, and the rooms of its building would become untenantable.

For the consequences of such a wrong the law affords no adequate means of redress by way of damages. The injury sustained cannot be repaired in an action, brought simply for damages. They cannot be correctly shown nor estimated, and for that reason an injunction may be properly issued to restrain the perpetration of a trespass which will probably be attended with such results. The case was sufficient in this respect.

It was also alleged that the defendant’s building could be repaired without entering upon the premises of the plaintiff. This, with the other facts, were properly sustained by the affidavits accompanying the complaint, and they entitled the plaintiff to the injunction which was issued in its favor.

What authority may be derived from chapter 625 of the Laws of 1871, to enter upon the premises of one person to secure the unsafe walls and building of another, where the entry may be necessary for that purpose, it is not now necessary to consider or decide, for no such necessity has been shown in this case. It appears, on the contrary, that there is no need of such an entry in order to secure the wall of the building requiring to be in part rebuilt. The order made should be affirmed.

Davis, P. J., concurred in opinion" of Beady, J.

Order affirmed.


author: Daniels, J.:

text:
    ALANSON ROBINSON, Respondent, v. GEORGE BRISBANE and others, Appellants.

      Practice — supplemental complaint— Code, §§ 468, 469, 121 — Buie 97.
    After judgment of foreclosure, and before sale, tbe plaintiff died, and bis executor assigned the judgment. Reid, that tbe assignee was properly allowed to file a supplemental complaint, to carry the judgment into effect.
    Under the former equity practice it was allowable to file a bill after a decree had been recovered, but not executed, to carry it into effect after the death of the complainant, and the acquisition of his interest by another person. The same relief may be obtained by means of a supplemental complaint under the Code.
    Appeal from an order allowing a supplemental complaint to be •filed. An action of foreclosure was commenced in 1869, and judgment of foreclosure and sale was entered in February, 1870. Before the sale, and in May, 1870, the plaintiff died, and in March, 1872, his executor sold and assigned the judgment to Mary Eobiuson. The premises were subsequently sold, but the referee did not make or file any report of sale, and in February, 1875,'the order appealed from was granted, allowing Mary Robinson to file a supplemental complaint.

      A. W. Wheeler, for the appellants.

      Aloise JBui't, for the respondent.
   Daniels, J.:

This action was prosecuted for the foreclosure of a mortgage, given by the defendant and his wife to secure the payment to the plaintiff, of the sum of $5,000 and interest, according to the condition of the defendants’ bond. On the 2d day of February, 1870, a judgment of foreclosure was recovered, and a referee was appointed to make a sale under it, and convey the mortgaged premises to the purchaser. Before that was done, and on of about the 21st day of May, 1870, the plaintiff departed this life. By his last will, which was afterward properly proved, he appointed two persons as his executors, one of whom qualified and became sole executor. The defendant made three payments to the executor, upon the judgment, in October, 1870, and May, 1871; and on the 13th of March, 1872, the executor assigned and transferred the bond, mortgage and judgment to Mary Robinson, who, in February, 1875, applied for leave to file a supplemental complaint to carry the judgment into effect.' That she was allowed to do, and the defendant appealed from the order. In support of the appeal it is now claimed that the order was made without authority, and the case of Rogers v. Adriance (22 How., 97) is relied upon as supporting that position. It was decided at Special Term by Mr. Justice Hoeeman, whose decisions, on matters pertaining to the equity practice, are entitled to great consideration and respect. But this case was decided upon the supposition, that the preceding practice had not provided for the contingency then presented, which was in substance the same as that appearing in the present case, and that the Code had gone no further than the former practice in this respect.

With great deference for the learned justice, he seems to have been in error in both respects; for the former practice did allow a bill to be filed after a decree had been recovered, but not executed, to carry it into effect, after the decease of the complainant and the acquisition of his interest by another person. Such a bill has been stated to be in the nature of a supplemental bill, which would be proper where “it has happened that owing to some neglect of the parties to proceed upon the decree, their rights have become so embarrassed by subsequent events, that no ordinary process of. the court upon the first decree will serve, and it is therefore necessary to have another decree of the court to ascertain and enforce them. Thus, where a decree was. pronounced against a defendant to have a settlement delivered 'up, and afterwards the complainant died, having made a will, and thereby bequeathed all her estate to trustees to be sold for the payment of her debts and legacies, the creditors and legatees were obliged to file a bill against the devisee of the former defendant to have the benefit of the decree, “ in order that the estate might be sold and their debts and legacies paid.”

“ Sometimes such a bill is exhibited by a person who was not a party, nor claims under a party, to the original decree, but claims in a similar interest. Or it may be brought by or against a person claiming as assignee of a party to the decree.” (2 Barb. Ch. Pr. [2d ed.], 86, 87.) And this practice still continues to exist, and was a sufficient authority for the order allowing the supplemental complaint, unless the provisions made upon the subject by the Code of Procedure, and intended to supply its place, have abrogated it. (Code, §§ 468, 469; see also the last of the Supreme Court rules.)

The other case relied upon (Kissam v. Hamilton, 20 How., 369), was ejectment, in which the party died before the referee made a report, and it was held that the action had abated and could not be revived. The decision made upon that application, practically has no control over the present controversy. The provision made by the Code did not save such a case. But its effect in the present instance must be entirely different, because this action was one which would survive the decease of either of the parties, and it had also proceeded to final judgment. It did not abate by the decease of the plaintiff, because the Code in terms declared that it should not. Its language was then, as it still is, that “ no action shall abate by the death, marriage or other disability of a party, or by any transfer of any interest therein, if the cause of action survive or continue.” The cause of action was one which did survive and continue, and it was within the express control of this provision. The section then proceeded to provide that, “ in case of the death, marriage or other disability of a party, the court, on motion at any time within one year thereafter or afterward, on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest.” (Code, § 121.) This provision is exceedingly broad and flexible, apparently including all classes of cases which may be expected to arise. The right to a supplemental complaint has not been restricted to the immediate assignee or personal representative of the deceased party; but it was so far extended as to include his successor in interest.” This provision was not restricted to any particular manner, in which the successor in interest might appear; but it was enacted in broad and comprehensive language, including all parties who succeeded or should succeed to the interests or rights of others by other means than those of representation; and it was expressly made applicable to the interests of a deceased party to an action. The affidavit and the assignment presented with it, showed just such a succession of interest in this case as the Code contemplated. The executor had authority to sell the bond' and mortgage and the judgment recovered upon them. They were part of the estate and assets in his hands, and his sale and assignment transferred them to his assignee, in whose favor the order was made from which the defendant has appealed.

IJpon the hearing of the motion the defendant presented affidavits tending to impeach the accuracy of the judgment. If that can be done it could not properly be tried on the hearing of the motion. It may be that a supplemental answer can be made sufficient for that purpose; but whether it can or not it is not necessary now to consider or decide.

The delay in making the motion did not, as a matter of course,. entitle the defendant to its denial. That was a circumstance bearing upon the good faith of the application, and it should not alone have the effect of defeating the assignee in her efforts to enforce the judgment, unless some additional reason could be shown justifying that result. Her laches were not so long continued, as necessarily to produce a forfeiture of her rights. The judgment seemed to be a valid one, recovered after a full opportunity for hearing and determining the defendant’s defense, and a reasonable exercise of discretion over the case required that she should be allowed to prosecute the usual remedy to enforce and collect it. A denial of it would have left her the owner of a valid judgment as far as the facts before the court affected it, without any existing remedy to carry it into effect, which would have been a reproach that the laws cannot be justly charged with. The order was right, and it should be affirmed with ten dollars costs and the disbursements on appeal.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    JOHN DUNCAN, Appellant, v. JOSIAH H. DE WITT, Respondent.

      Complaint — dismissal of — extra allowance — difficult and extraordina/ry cases— Code, § 309.
    The ease having been called for trial, the plaintiff proposed to discontinue, the defendant moved to dismiss the complaint. Held, that the complaint was properly dismissed.
    To authorize an extra allowance, the case must be both difficult and extraordinary. It must involve something unusual, and be such as to require more than ordinary labor and previous preparation by counsel.
    Appeal from a judgment dismissing the complaint, with costs, .•and an extra allowance.

      George Bell, for the appellant.

      Samuel A. Noyes, for the respondent.
   Daniels, J.:

When the case was finally called for trial, the plaintiff’s counsel proposed to discontinue the action, and the defendant’s counsel moved for a dismissal of the complaint. There was no design on the part of the plaintiff to proceed to the trial of the cause on the issue made by the pleadings, and the court proceeded regularly in directing the complaint to be dismissed. The appeal, therefore, from that part of the order, cannot be sustained.

The order directing an additional allowance of costs is the proper subject of an appeal to the General Term, because it subjects the plaintiff to the payment of a sum of money, and for that reason affects a substantial right. (People v. N. Y. Central R. R. Co., 29 N. Y., 418; Hanover Fire Ins. Co. v. Tomlinson, 58 id., 215.)

The action was brought to recover damages for the breach of a contract for the sale of property, and the defense depended upon the plaintiff’s failure to perform, in the payment of the purchase-price. If the case was a difficult and extraordinary one, then the allowance was not unauthorized, although' it seems to have been large in amount. After an answer has been served by which a defense has been interposed, the court, as the Code now stands, may order an additional allowance of costs, in finally disposing of the case. (Code, § 309.) But to justify the allowance for that reason, the case must appear to be difficult and extraordinary. Previous to 1859, the power was conferred to order additional allowances of costs, when the case was either difficult or extraordinary. But in that year the provision was changed, rendering it necessary that it should be both difficult and extraordinary, before any allowance could be-made. This change was significant, and it indicated it to be the purpose of the legislature to restrict the cases, in which additional allowances of costs had previously been made. The terms made use of were in common use and generally well understood; and they were enacted in the law in their ordinary popular sense.' They require that there shall be something unusual in the case, before it can be properly considered an extraordinary one. That term is used by way of contrast to that which may be of constant or frequent occurrence, and when applied to cases brought before courts of justice, it obviously can include only those that are not of the usual description. Ordinary cases may be expected to be tried by counsel, without much labor or previous preparation. But extrardinary cases will commonly be found to require both, and it was that service that the legislature intended to provide the power .for compensating by this provision of the Code. Cases of constant occurrence, with the principles of which all counsel may reasonably be presumed to be familial', can, in no proper sense, be considered extraordinary, and for that reason are not within this provision of the Code. This law, like all others, should be construed according to the reasonable import of its terms, and that requires the exclusion of all ordinary cases from the operation of this provision. If that is not done, then the distinction in the signification of the terms, ordinary and extraordinary, is at once disregarded and rejected; and it was not the intention of the law that any thing of that kind should be done. The words were carefully selected, and so combined in the law that the power to make the allowance was restrained to cases appearing to be both difficult and extraordinary, and the courts are as much bound to observe their intent as they are in other statutory provisions. These allowances add very much to the burthen and expenses of legal proceedings, and they should be reasonably restrained instead of being improperly extended. If they are not, persons in moderate circumstances may be prevented, by the risk of impoverishment, from appealing to the courts of justice for the protection of their rights.

This construction, in several well considered eases, has been placed upon these terms, which appear so plain as hardly to require construction. (Fox v. Gould, 5 How., 278; Fox v. Fox, 22 id., 454, 469; 24 id., 385.) In Bostwick v. Menck, (40 N. Y., 383), this provision of the Code was before the Court of Appeals, in an action by the receiver of a judgment debtor to set aside a general assignment of the judgment debtor. A large allowance was made in that case in favor of the plaintiff, which was considered by the court not to be sanctioned by this provision of the Code, because the case, even though it might have been difficult, was not extraordinary. That the point was considered and decided at that time by the court, is evident from the circumstance that, in the modification of the judgment provided by the decision, the extra allowance was wholly excluded. (Id., 390, 391.) "When, if it had been considered a case in which an allowance could have been made, it would simply have be'en reduced in its amount, instead of being, as it was, rejected altogether. The case was not an extraordinary one, and for that reason the power to mate an allowance did not exist, and the order mating it was reversed. The decision is a direct authority in support of the construction, which this provision of the Code should receive.

There was nothing before the court showing the present case to have been either difficult or extraordinary. From the pleadings and other proceedings it seemed to have been a simple action for the non-performonce of a contract for the sale of property, one of the most common brought before courts of justice, and, without a formal trial of the issue, it was dismissed. Upon the dismissal an allowance of $1,000 was made. The case was, clearly, oue in which no additional allowance should have been made. It was not within the provision of the Code upon this subject, and the order should, therefore, be reversed, and the application denied, but without costs to either party. As to the dismissal of the complaint, the direction should be affirmed.

Davis, P. J., concurred. Brady, J., concurred in the result.

Order for allowance reversed and application denied, without costs. As to dismissal of complaint, direction affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM FLOYD and WILLIAM FLOYD, Appellants, v. ALFRED T. CONKLIN, Respondent.

      Savings institution — chap. 868 of 1852 — election of trustee of.

    The statute incorporating a savings institution required the vote of a majority of the trustees present, for the election of an. officer. At a meeting of its trustees for the election of a president, twelve trustees were present. Six votes were given for the relator, four for the defendant, one for another person, and one trustee cast no vote. Held, that there was uo choice.
    The defendant having been a director of a bank of discount and deposit which had become insolvent, and though not formally dissolved, was in the hands of a receiver, appointed under a' law requiring him to convert the assets of the corporation into cash, and providing for their division among its creditors and stockholders, and consequently having ceased to perform the duties of a director, held, that from having allowed himself to be voted for, as trustee of a savings institution, the charter of which provided, that no director or officer of any bank of circulation or discount and deposit should be eligible to act as trustee or officer of the corporation thereby created, he might be presumed to have resigned his position as a director of the bank.
    Appeal from a judgment recovered on the verdict of a jury, in an action brought to remove the defendant Alfred T. Conklin from the respective positions of president and trustee of the Mechanics and Traders’ Savings Institution of the city of New York, which, it is claimed, he unlawfully held and occupied, and to establish the right of the relator William Floyd, a trustee, to the office of president of the said institution.
    The Mechanics and Traders’ Savings Institution was incorporated by chapter 368 of the Laws of 1852. The first section of the act provides, “ that no director or officer of any bank of circulation or discount and deposit shall be eligible to act as trustee or officer of the corporation hereby created.”
    In January, 1870, and again in January, 1871, Alfred T. Conklin, the defendant, was elected a director of the Eighth National Bank of the city of New York, a bank of circulation and discount and deposit.
    No evidence was produced that he had ever resigned from such trust, or had been discharged therefrom by operation of law, though it was found that the Eighth National Bank had passed into the hands of a receiver on or about the 13th day of December, 1871.
    Section 4 of the same act, as amended by section 2 of the act amending the same (chap. 139, Laws of 1868), provides that the trustees shall elect from their number a president and other officers.
    Section 7 of the original act provides that the trustees shall have power to make by-laws, not inconsistent with the charter, providing, among other things, for the election of officers; and pursuant to this power the following were, among others, enacted as by-laws:
    The election of officers specified in the charter shall take place annually, at the regular meeting in January. No person shall be elected a trustee, unless he is nominated at least one meeting before the election.
    In section 2 of chapter 139 of the Laws of 1868 amending the act of 1852, it is, among other things, provided, “ that the vote of a majority of said trustees present, shall be necessary for the appointment of any officer, receiving any salary therefrom.”

      Henry E. Davies and.Henry E. Davies, Jr., for the appellants.
    The majority of those acting and voting are to be considered the legal majority. (Eirst Parish of Sudbury v. Stearns, 21 Pick., 158; Oldnow v. Wainwright, 1 Ym. BL, 229; Hex v. Foxcroft, 2 Burr., 1017. The defendant had vacated the office of trustee by becoming a director of a bank of circulation, deposit and discount. 'Dillon on Municipal Corporations.) The defendant was still a director of the bank.

      A. J. Vanderpoel, for the respondent.
    The defendant was elected after he ceased to be a director of the bank. The statute requires a majority of the vote of all present to elect a trustee. Oakland v. Ca/rpenter, 13 Cal., 540; McCracken v. San Frcmcisco, 16 id., 591; Piemental v. The Same, 21 id., 351.)
   Daniels, J.:

The object of this action was to remove the defendant from the office of president of the Mechanics and Traders’ Savings Institution of the city of New York, and place the relator in that office, to which it has been claimed he was lawfully elected, on the 8th day of February, 1875. On that occasion twelve trustees, including the defendant, were present, and several ballots were taken for president of the institution. It was on the fifth of these ballotings that the relator claims to have been elected to that office. Then six votes were given for him, four for the defendant, one for another person, and one of the trustees cast no vote. For that reason it is insisted that he practically voted for the relator, and in that manner secured his election. But how he could be presumed to add his vote in that manner to those given for the relator, and not to those given for the defendant, is not so clear. If a presumption is to be entertained on this subject, it is just as reasonable that it should be indulged in the defendant’s, as in the relator’s favor. Cases have been cited in which it was presumed that persons not voting, acquiesced in the election of the person receiving the votes actually given, and in that manner assented to the election. But there was only one person voted for, and a good reason was supplied by that circumstance, for the indulgence of the presumption. (Oldknow v. Wainwright, 1 Wm. Black., 229; Rex v. Foxcroft, 2 Burr., 1017.) The majority simply protested, without voting for any one. And it was presumed that they acquiesced in allowing a minority to elect the officer. The presence of the majority, though not its vote, was all that was necessary to the success of the candidate. (See, also, First Parish of Sudbury v. Stearns, 21 Pick., 148.) It does not appear that any statutory provision, regulating the manner in which the election should be held, controlled in either of the cases referred to. They seem to have been disposed of upon the principle necessarily suggested by, and reasonably arising out of, the circumstances presented by them. In that respect they differ essentially from the present controversy; for the election in question, was held under the provision of a statute which declared that the vote of a majority oí said trustees present shall be necessary for tlie_ appointment of any officer receiving any salary therefrom” (vol. 1, Laws of 1868, 241, § 2), and that required more than silent acquiescence, or assent, to elect the officer. The vote of a majority of the trustees present, was what the statute rendered indispensable to that result. Affirmative and' positive action was contemplated by this provision, which should find its embodiment in an actual vote, as that term is ordinarily used and understood. To constitute an election under it, the votes of a majority of the trustees present were necessary, and as the defendant was present and acting as a trustee under color of an election, those the relator failed to secure. A point quite similar to this arose in the case of San Francisco v. Hazen (5 Cal., 169), and the court disposed of it in that manner. (McCracken v. San Francisco, 16 id., 591.)

That also was the view which the defendant, and those who were present with him, took of the vote that had then been given. For it was not insisted or suggested that a selection had been made by the vote that had been taken, as neither candidate had a majority of the trustees who were present, in his favor. When the result became known, one of the tellers declared that no choice had been made. Then an adjournment was proposed, and the relator voted with the majority in favor of the postponement. At the time then designated, he was again present, and eight ballots were then taken for the same office, without success. Another adjournment was then ordered, for which the relator voted. At the time so appointed, the relator was again present, and two ballots were taken, resulting in no choice. The conduct of the relator, and of the other trustees who were present and acting with him in these proceedings, is. consistent with no other supposition, than the existence of the conviction that an actual vote by the majority was necessary to select the officer, and that it had not been obtained. It. was declared, when the vote became known, that no choice had been made, and all who were present practically adopted that conclusion. Even if that had been erroneous, as it was equivalent to a renunciation of all claim to the office by the relator, and upon that assumption he afterward participated in the further efforts made to fill it, he could not lawfully claim it when those efforts turned out to be unsuccessful. (People v. Board of Metropolitan Police, 26 N. Y., 316.) If the relator secured any right under the first vote mentionsd, he abandoned and surrendered it by his conduct upon that and the succeeding occasions, when the other votes were taken. In no view which can properly be adopted concerning the case, did the relator succeed in establishing a title to the office.

The defendant received a majority of the votes of the trustees who were present at the elections in the years 1872, 1873 and 1874, for the office of president of the institution, and officiated as such in pursuance of those votes. And after the ineffectual proceedings of the early part of the year 1875, he formally resigned his office as trustee of the institution, and was re-elected by the vote of a majority of the remaining trustees present at the time. After such re-election, a vote was taken for the office of president, which resulted in a majority for the defendant, and under that election he has since held the office. The last election was held on the 14th of June, 1875, and the defendant seems to have held over until that time under the election of 1874.

By the first section of the act incorporating the institution, it was declared that “no director or officer of any bank of circulation or discount and deposit, shall be eligible to act as trustees or officers of the corporation hereby created.” (Laws of 1852, chap. 580.) And it was shown that the defendant was elected as director of the Eighth National Bank in the months of January, 1870 and 1871. That he acted as such in January and March, 1870, and took the oath of office required from him in that capacity in January, 1871. This was a bank of circulation, discount and deposit, and under the provision of the charter of the institution, already given, his election and acceptance of the office of director,'necessarily vacated his office as trustee. And for that reason,- it is claimed by the plaintiffs that he could not lawfully be elected to the office of president of the institution. By article two of the by-laws of the institution, which seems to have been lawfully ■ made and adopted, no person could be elected a trustee unless he was nominated at least one meeting before the election; and after the defendant became a director in the Eighth National Bank, until the election of 1875, he never was re-elected in that manner, to the office of trustee of the institution. He could not, therefore, have been a lawful trustee during that interval, and as the president was to be, by the charter, chosen from the trustees, his election to the office of president was consequently unlawful.

The case of Curries v. Mutual Ins. Co. (4 Henning & Mumford, 315), has been relied upon as an authority which supported the position, that an election to the office of president would be at the same time also an election to that of trustee; and that was substantially so held in that case. But there no such restraint or disability as this by-law imposed, appeared to exist, and for that reason, it may have been properly held that the election to the second office had the effect of passing the successful candidate through the one preceding it. But in the face of the plain language of the by-law of this institution, that could not be done, for it required a nomination at a preceding meeting, to entitle the person to be legally considered a candidate for the office of trustee. This by-law was obligatory upon the trustees, and seems to have been a discreet and prudent provision, for the purpose of affording an opportunity to canvass and ascertain the qualifications and fitness of the candidate. Without a compliance with its requirement a trustee could not regularly be elected.

Before the last election of the defendant, he was nominated for the office of trustee at a preceding meeting. At the next regular meeting he resigned his office as trustee, and was at once re-elected, and at the next meeting, held on the 14th of June, 1875, he was elected to the office of president of the institution. This election was entirely regular, if he was not at that time a director in the Eighth National Bank, under his election as such in January, 1871.-

The evidence concerning that point was chiefly contained in a stipulation made between the parties, that showed, That on or about the 13th day of December, 1871, the Eighth National Bank of the city of New York became and was insolvent, and discontinued business, and at that date, or immediately thereafter, a receiver of the said bank was appointed and took possession thereof, and that said bank is now in the possession of such receiver.”

It was not shown that the defendant had ever, in any way after that, acted as director of the bank, and he may very well have himself regarded his functions in that capacity at an end, from the time the bank went into the receiver’s hands. As the corporation has not at any time been dissolved his office would formally continue, because no successor appears to have been elected in his place. (Bank of Bethel v. Pahquioque Bank, 14 Wall., 383; Sanborn v. Lefferts, 58 N. Y., 179.) But the eligibility of the defendant does not rest entirely upon the insolvency of the bank and the appointment of a receiver to close up its affairs. That would ordinarily establish the conclusion that no further active duties remained to be or could be performed, by the directors; for the law rendered it the duty of the receiver, to convert all the assets of the bank into money, and then provided for their complete distribution among its creditors and stockholders. (U. S. R. S., 1018, § 3236.) It was not contemplated that any other or different course should be taken, where the bank proved unable, as this one did, to meet its ordinary liabilities. (Id., § 5231.) And for those reasons there could be little more than the name of the director’s office left, while that state of things continued to exist. There was not sufficient of it to require its formal resignation, to divest the defendant of it. But, under the case of the People v. The Metropolitan Board of Police {supra), it could be done by any positive act inconsistent with its existence, evincing a design to renounce it.

The defendant understood that his eligibility as a trustee was denied, on account of his acceptance of the office to which he was elected in the Eighth National Bank. The same thing was probably known to all the trustees of the institution at the time •of the last election, for his rights were then contested by this suit. It was for the purpose of removing the disability alleged that he resigned, and was then re-elected by a majority of the trustees present. And that could only be lawfully accomplished by. ¡•enouncing his office as director in the bank. That, he must have intended, and by the trustees who elected him have been understood to have been done, when they voted for him. He could not lawfully hold the office for which he was a candidate, while he retained the other. The charter rendered him ineligible. By allowing himself to be nominated and voted for as .he did, he must have been considered as having abandoned that of director. Andas the business of the bank had ceased, and its affairs were in process of ¡settlement by the receiver, there was nothing in the way preventing that from being done, or that could render the intention to do it ineffectual. “ It is said that an office may be resigned in two ways, either by an express agreement between the officer and the corporation, or by such an agreement implied from his being elected to another office incompatible with it.” “A resignation by implication may not only take place by an abandonment of the official duties as before mentioned, but also by being appointed and accepting a new office, incompatible with the former one.” (Angell & A mes on Corp. [4th ed.], §§ 433, 434; Dillon on Municipal Corporations, § 164.) The defendant could not hold both the office of director in the bank and trustee of tbe institution. That of director bad become more formal than real, by the condition in which the hank had been placed. And he must, under the circumstances, have intended to, and did, resign and renounce that office, when he presented himself as a candidate, ¡.nd was elected to and accepted the office of trustee, and afterward of president, of tbe savings institution. The object .and intention of tbe prohibition contained in the first section of its charter, was to prevent persons from holding the office of trustee, whose interests in other banking corporations might induce them to consent to a diversion of its funds to improper and hazardous investments and enterprises, which, it is very clear was not, and could not be in the least danger of being violated by tbe last election of tbe defendant. The proceedings then taken were sufficient to vacate wliat remained of the office of director, and to invest the defendant with tbe legal title to those of trustee and president of the savings institution.

The judgment in the case seems to have been right, and it should he affirmed.

Davis, P. J., and Brady, J., concurred;

Ordered accordingly.


author: Daniels, J.: Brady, J.,

text:
    WILLIAM LIDDELL, Respondent, v. WILLIAM PATON and others, Appellants.

      Arrest — motion to vacate order of — may he made where the fads justifying the a/rresi constitute the cause of action— Code, §§ 204, 205.
    The right to apply on motion for a discharge from arrest is secured to all persons who may he arrested under orders in civil actions.
    A defendant may, at any time before judgment, secure his liberation from arrest and imprisonment, upon proof of that right, whether the facts, out of which' the liability to arrest is alleged to arise, form part of the cause of action itself or not.

      Appeal from an order denying a motion to vacate an order of arrest.

      S. P. Nash, for the appellants.

      Penj. Q. Hitchings and N. F. Pultzs, for the respondent.
   Daniels, J.:

The cause of action set forth in the complaint is alleged to have arisen out of the sale of goods consigned by the plaintiff to the defendants for sale on his account, and by them sold, and the proceeds received, and, instead of being remitted according to their agreement, withheld by them from the plaintiff. These facts are relied upon as sufficient, to establish the existence of a cause of action which would justify the defendant’s arrest upon execution, even if no order of arrest had been obtained during the pendency of the action. And, for that reason, it has been urged that they could only contest their liability to arrest at the trial, by making a successful defense there. Authorities have been cited, and undoubtedly exist, apparently maintaining that view, but no solid foundation can be found for their support. Under the rule insisted upon, a defendant may, at any time before the recovery of judgment, secure his liberation from arrest and imprisonment upon proper proof of that right, when the facts out of which the liability to arrest form no part of the cause of action itself. In that class of cases, this end can be secured by affidavits satisfactorily showing that no liability to arrest in fact exists. But, when the facts constituting the cause of action and the liability to arrest are the same, then it is claimed that a different rule should be applied under which the defendant must remain arrested, or in prison, until a trial of the action can be had, and his right to be set at liberty can be vindicated by a verdict and judgment in his favor. Such a rule could not fail to operate in its discrimination most harshly and unjustly. ■ For, upon the same force of evidence, persons would be entitled to be discharged in one class of cases, when they would be obliged to remain under arrest or in custody in the other class. This is an important disability, because it subjects persons to groundless restraints by way of imprisonment, and it ought to be well sustained by the authority of the law before its existence should be conceded. The distinction is a most substantial one, for persons may be unjustly imprisoned under it for months and even years before the action prosecuted against them may be brought to trial.

The right of the defendant to move for his discharge from arrest has been subjected to no such qualification or distinction by the sections of the Code providing for it. That right, on the other hand, has been secured to all persons who may be arrested under orders and in the same terms. No advantage has been provided for one class of cases, which it was in anyway shown was intended to be denied to the other. Both were included in precisely the same terms, used in the same way, and they were qualified by nothing justifying a construction rendering them more effectual in one class of cases than they would be in the.other. The rule contended for depends for its existence upon the absurdity that the same language should be construed to mean a different thing in one case from that which it does in another, when the legislature has said nothing requiring that result. It permits a person to be at the same time imprisoned and set at liberty on the same weight of evidence, and that, too, in the latter ease, for the promotion of the purposes of oppression and injustice.

The Code of Procedure, by which the present pr-actiee was created, has done nothing to countenance this unreasonable distinction. It has, on the contrary, enacted in terms including all arrests upon orders, that “ a defendant arrested may, at any time before judgment, apply on-motion, to vacate the order of arrest, or to reduce the amount of bail.” “ If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made.” (Code, §§ 204, 205.) These sections secure the same right to the defendant, in all cases of arrest under the preceding one hundred and seventy-ninth section. They are to be construed according to the rules applied to other statutes, which render the signification of the terms made use of in their enactment, the same as to all the cases which they include; and it could not have been the intention of the legislature, that they should be' understood differently, according to the circumstances constituting the cause of arrest. In Elwood v. Gardner (15 N. Y., 319), the right to move to vacate the order of arrest was considered to be a common one, existing alike in all cases. In deciding the case, it was held by the chief judge that “when the action is one which gives the plaintiff a right to an order of arrest, and the facts constituting it are identical with the facts constituting the cause of arrest, the defendant can contest the right to arrest upon a preliminary motion to set aside the order, and also contest the alleged cause of action of course upon the trial.” (Id., 352.) And it Is essential to such a contest that the affidavits produced in its support shall be carefully examined, and the application disposed of according to the just preponderance of proof. In no other way can persons arrested be fully protected against oppressive and unwarranted imprisonment. But the present case requires an examination of the affidavits produced, upon the further ground that an order for the defendants’ arrest was necessary to justify their arrest on the execution, in case of the recovery of a judgment by the plaintiff. (Wood v. Henry, 10 N. Y., 124.) In that case the canse of action set-forth in the complaint, was substantially the same as it is in this case; and it was held that an execution against the body was unauthorized, because no arrest had been made by order before the judgment was recovered, and its recovery did not necessarily establish the fact that the money had been received in a fiduciary character. In that respect it differed from Roberts v. Prosser (53 N. Y., 260), where the existence of that fact was essential to the recovery of the judgment.

The facts relied upon in its support were clearly sufficient to justify the order which was made for the defendant’s arrest, if they had remained uncontroverted by him. The proof of their existence depended, in the first instance, upon the affidavits of the plaintiff’s attorney, and afterwards of the plaintiff himself. By these it appeared, that the defendants had received and misappropriated the proceeds of the plaintiff’s pi’operty. But two of the defendants positively denied the facts alleged conceiming their obligation to pay over the identical money received by them, and their statements upon this subject were sustained by the form of the accounts shown to have been rendered to the plaintiff, during the progress of the business. From them it appeared that the moneys received were made a matter of credit to tlie plaintiff, upon which interest was allowed for the balance in the defendant’s hands. These circumstances are not conclusive, but, at the same time, they tend to confirm the defendants’ relation of the obligation they, entered into. A- further indication of the accuracy of that view is found in the fact, that acceptances were taken by the plaintiff for the balance due to him at the time of the defendants’ pecuniary embarrassment. This fact alone, of course, would not prevent the plaintiff from resuming his original demand when the defendants failed to pay the bills; but it is a circumstance showing that the parties treated the indebtedness only as an ordinary liability on contract. In the conflict of proof arising on the affidavits, that made by the plaintiff’s attorney as to the terms on which the defendants received and sold the property, is entitled to much less weight than those made by the parties themselves. For he does not appear to have had any personal knowledge concerning them. He has not stated that he was present when the defendants made the agreement to receive and sell the plaintiff’s property, and it is not in any degree probable that such was the fact; and if he was not, then it is difficult to see how he could have known any thing of tlie terms of the contract entered into between the parties. That would leave the case practically dependent upon the affidavit made by the plaintiff, those of two of the defendants, and the circumstances relied upon for the purpose of corroborating them. This gave the defendants the preponderance of proof, and it entitled them to have the order of arrest set aside. The order appealed from should, therefore, be reversed, with ten dollars costs beside the disbursements, and an order entered vacating the order of arrest.

Davis, P. J., concurred in result.

Brady, J.,

concurred in result, and agreed with Justice Daniels in his views-on the subject of reversing orders of arrest in all cases. i

Order reversed, with ten dollars costs, and order entered vacating order of arrest.