text:
    HENRY H. HAM, Supervisor, etc., Respondent, v. HENRY SILVERNAIL and others, Appellants.

      Commissioners of highways— decision as to necessity of laying out highway —power of to require applicant to give bond — where bond is taken and money paid under io one of the commissioners — liability of his sureties for.

    One E. applied to the commissioners of highways, of whom the defendant was one, to have a highway laid out, the necessity of which was certified to by twelve men, representing themselves to be freeholders, although one of them was not in fact one. The commissioners refused to proceed unless E. would give abend to pay all damages occasioned to one O. by the laying out of the highway. The damages were regularly allowed at ninety-five dollars, which amount was paid by E. to tlie defendant Silvernail, one of the commissioners, and be having refused to pay it over to his successor in office, this action was brought against him and the sureties on his bond, to recover the same. Held (1), that the commissioners having determined that the necessity for the highway had been certified to by twelve freeholders, their decision could only be reviewed in a direct proceeding for that purpose; (2), that although they had no authority to require E. to give the bond, and they could not, therefore, have enforced it against him, yet, as he had paid the money to the defendant, he (the defendant) could not set up the invalidity of the bond as a ground for retaining the money for his own use, and that the sureties to his official bond were liable therefor.
    Appeal from a judgment in favor of the plaintiff entered upon the trial of this action by the court without a jury.

      Anthony c& Losey, for the appellants.

      Franlc Eno, for the respondent.
   Pratt, J.:

The action is upon an official bond given by Silvernail as commissioner of highways of the town of Pine Plains, with the other defendants as his sureties.

The condition of the bond, which is in the usual form, is that Silvernail shall faithfully discharge his duties as such commissioner, and, within ten days after the expiration of his term of office, pay over to his successor what moneys may be remaining in his hands as such commissioner.

In 1870, one Enghkie applied to the commissioners of highways of said town, of which Silvernail was one, to have a highway laid out through certain improved lands.

The necessity for the highway was certified to by a juiy of twelve men, residents of the town, representing themselves as freeholders, but one of them, it now appears, was not' in fact a freeholder.

Before proceeding to lay out the highway, the commissioners exacted from the applicant an undertaking on his part that'he would pay all damages which should be sustained by reason of -the highway passing through the improved lands of one Clark.

The highway was regularly laid out, and the damages resulting therefrom duly assessed. The applicant, Enghkie, thereupon, in fulfillment of his agreement, paid .the commissioners the sum oi ninety-five dollars, being the amount of damages assessed to the owner of said Clark lands, and the commissioners gave him -a receipt therefor, signed by them as such commissioners.

That sum Silvernail retained more than ten days after the expiration of his term of office, and refused, upon demand, to pay the same over to his successor. Hence this action.

The facts are agreed upon by stipulation substantially as above stated.

The defense is placed upon two grounds:

Fii’st. That inasmuch as one of the persons certifying to the necessity of the highway was not a freeholder, the proceedings were irregular and void. Second. That the commissioners had no right to require any such undertaking as that given by Enghkie; that the same was void, and therefore the money paid by him in pursuance thereof was not received by Silvernail as commissioner. It is a sufficient answer to the first point made by the 'defendants that the commissioners of highways, in proceeding to lay out the highway, determined that the necessity therefor had been duly certified by twelve reputable freeholders, such determination was in the nature of an adjudication which can onty be reviewed in a direct proceeding for that purpose. (Porter v. Purdy, 29 N. Y., 106.)

Tire money in controversy was paid to Silvernail as commissioner of highways by Enghkie in fulfillment of an agreement made by the latter with Silvernail as snch commissioner.

Silvernail assumed the right to make the agreement and receive the money; he gave a receipt therefor under his official hand. It would be strange indeed, if he could be permitted to pocket the money and refuse to render any account thereof, by alleging that-he acted without authority. It is probably true that he could not have enforced the performance of the agreement if Enghkie had resisted; but he did not resist. He voluntarily paid the money, and therefore cannot claim to have it refunded; and if Silvernail can now be permitted to shield himself by alleging the illegality of his own acts, he will be able to profit by his misconduct. The precedent thus established would be most dangerous. That such a defense cannot prevail seems to be settled by People ex rel. Martin v. Brown (55 N. Y., 180). (See, also, cases there cited.)

The conclusive answer to the defendant’s position is that the legality of the agreement with Englikie is not in controversy ; the agreement has been performed. Silvernail did in fact receive the money in question as commissioner, and he acknowledged its receipt as such.

It does not lie in his mouth to repudiate his solemn official acts for his individual benefit.

He should have paid over the money, which he received by virtue of his official position, according to the tenor of his bond, and having refused to do so, he and his sureties became liable to an action.

Talcott, J., concurred. Barnard, P. J., not sitting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Pratt, J.:

license: Public Domain

text:
    JAMES L. MILLS and CHARLES L. MEAD, Executors, Respondents, v. WILLIAM H. MEAD, Appellant.

      Title deeds — possession of— when executor entitled to.

    As a general rule, title deeds are considered to savor so much of the realty, that the law, for some purposes does not account them to he chattels, but provides that they shall follow the land to which they relate, and shall vest in the heir as incident to the estate, to the exclusion of the executor.
    Wheie, however, the executor is authorized to sell the real estate, and an inspection of the title deeds, is necessary to a proper discharge of his duties, he is entitled to their control and possession.
    Appeal from an order striking out a demurrer, interposed by defendant, to the complaint herein, with ten dollars costs, giving leave to defendant to answer within twenty days, otherwise judgmont absolute to be entered by the plaintiffs.
    The demurrer was interposed upon the two grounds: 1. That plaintiffs have not legal capacity to sue; and, 2. That the complaint does not state facts sufficient to constitute a cause of action.
    The sworn complaint sets forth subs!antially the following facts: Cornelia D. Mead died about June 28,1872, leaving this defendant, her husband, and the plaintiffs, together witli Hannah D. Mead, Roswell Mead and Lizzie D. Mead, their children. About June 7, 1872, slie made her last will, disposing of all her estate, and appointing- these plaintiffs and the defendant executors thereof, and, by said will, authorized, empowered and directed any two of said executors, iu their discretion, to sell any and all her real estate, and to make, execute and deliver all conveyances of the real estate that might be necessary to give a good title to the same; and, on September 2, 1871, the will was duly proved before the surrogate of Orange county, and these plaintiffs duly qualified as executors, and received letters testamentary. Defendant has never qualified or received letters testamentary. About May 31, 1872, defendant, William H. Mead, had duly executed and delivered to the said Cornelia D. Mead a deed of conveyance of all his right, title and interest in a farm of about 150 acres, on which they lived, near the village of Middletown, and which they held as joint tenants under deeds from Joseph Davis, the father of Cornelia D. Mead, and from the executors of the last will of said Joseph Davis. The consideration for the deeds, from her father and from said executors, was paid wholly by said Cornelia D. Mead.
    After the deed of defendant to deceased had been, by defendant, personally, delivered to deceased, and before it had been recorded, defendant, by falsehood to the person by whom the deed had, by deceased, been sent to the Orange county clerk’s office for record, obtained possession of it, and has ever since kept it secreted, or has destroyed it, and refuses to surrender it or give any information respecting it.
    This action is brought to obtain possession and custody of this deed, or if the deed has been destroyed, for the judgment of this court, confirming in Cornelia D. Mead the title to the real estate involved as of the date of'this deed by defendant to her, clear of any incumbrance made, suffered or permitted by defendant.

      Hulse, Little & Finn, for the appellant.

      John G. Willtin and Jirah L. Foote, for the respondents.
   Pratt, J.:

As executors the plaintiffs have an active duty to perform, relative to the real estate described in the complaint. They have a right to inspect the title deeds of the testatrix, in order to ascertain the extent of their power under the will.

It is incidental to the power of sale, that the executors should have the custody of the deeds by which the title is proved.

So far as it appears the plaintiffs could not execute the power of sale as to this parcel of land, without having the deed.

The allegation in the complaint that the deed was obtained by the defendant by fraud, is uot the gist of the action, but merely to show that his possession is tortious. The general rule is that deeds are'considered to savor so much of the realty, that the law for some purposes does not account them to be chattels, but provides that they shall follow the land to which they relate, and shall vest in the heir as incident to the estate, to the exclusion of the executor.

But in this case the land itself vests in the heirs or devisees, subject to the execution of the power of sale by the plaintiffs.

By his demurrer the defendant admits he is a wrong-doer; as against such party the plaintiffs are entitled to maintain this action.

In the case of Oobbett, Executor of Baxall v. Glutton and another (2 C. & P., 471), a relative of the defendants had in his possession a box containing papers belonging to the deceased. The box and its contents were sent by him to the office of the defendants who were solicitors, to be delivered to the plaintiff as executor, on his giving a schedule of the deeds contained in the box. The plaintiff demanded the box and its contents from the defendants, but they refused to deliver it up, unless the plaintiff would give them a schedule of its contents. And Lord Tisnterden held, that the defendants had no right to insist on the inventory, before they gave up the box; that the plaintiff as executor was entitled to the possession of the papers of the deceased, and could bring an action of trover on the defendant’s refusal to deliver them up.

The plaintiff was entitled to judgment below, but the court below saw fit to grant a favor to defendant which he refused to accept.

The plaintiff is entitled to judgment with costs.

Talcott, J., concurred. Barnard, P. J., not sitting.

Judgment and order affirmed, with costs.


text:
    THE PEOPLE ex rel. WILLIAM M. STEVENS, Appellant, v. WILLIAM B. HAYT, Respondent. THE PEOPLE ex rel. JAMES E. MUNGER, Appellant, v. DANIEL GEROW and others, Respondents.

      Section 17 of art. 3 of the Constitution — chap. 400 of 1875 — constitutionality of— Section 11 of art. 10 of the Constitution.

    Section 17 of article 3 of the Constitution, prohibiting the passage of any act providing that any existing law, or any part thereof, shall be deemed a part of said act or applicable thereto, was intended to prevent the passage of acts, by .reference to existing laws, the scope and meaning of which might not be duly considered, by the legislature, and which might he obscure and difficult to understand by those to whom they were addressed.
    Section 3 of chapter 400 of 1875, by which the town of Wappinger was created out of a portion of the town of Fishkill, provided that all laws in force, at the time of its passage, applicable to the town of Fishkill,' should apply to the town of Fishkill as thereby continued. Held, that It was not in conflict with the foregoing provision of the Constitution.
    The second section of the act provided that the officers of the town of Fishkill, serving at the time of the passage of the act, should continue in office, and discharge the duties of their respective offices for both towns until the next regular election. Held, that this was not in conflict with section 11 of article 10 of the Constitution prohibiting the appointment of town officers by the legislature.
    Appeal from orders made at the Special Term, refusing to grant a mandamus in each of the above entitled actions.
    On the 20th day of May, 1875, the legislature passed an act for the division of the town of Fishkill, in Dutchess county, into two towns, to be know as “Wappinger,” and “Fishkill.” By the terms thereof, the act took effect immediately: and it was fnr-« ther provided by section 2 that the town officers, elected in the old town, in March, 1875, should “ hold over and perform the duties of their respective offices” for both new towns until the first Tuesday of March, 1876.
    Section 3 provided as follows: “ All laws in force at and from the time of the passage o.f this act, applicable to the town of Fishkill as now existing, shall apply to the town of Fishkill as hereby continued, except such .laws as are inconsistent with the provisions of this act.”

      The first action was brought by the relator, who resides in the territory assigned by said act to the town of Wappinger, to compel the defendant, who is the town clerk of the old town, elected in March, 1875, and a resident of the territory assigned to the town of Fishkill, as town clerk of Wappinger, to file a chattel mortgage, given to relator by a resident of said town of Wappinger; and to provide proper books, and index the parties thereto.
    The second action was brought by the relator, who is a resident and tax-payer of said town of Wappinger, to compel the defendants, who are assessors of the old town, elected in March, 1875, and two of whom reside in said new town of Fishkill, and one in Wappinger, as the board of assessors for said town of Wappinger, to ascertain the taxable inhabitants and property thereof, real and personal, aud prepare an assessment roll for said town, as required by law.
    Orders to show cause why a mandamus should not issue were made in both cases by his honor, Judge Barnard, returnable August 20, 1875 ; and on the return thereof, after answers by the defendants, the court refused to issue a mandamus in either case, on the ground that the act of the legislature, chapter 400 of the Laws of 1875, was unconstitutional and wholly void.
    TF. I. Thorn, for the appellant.

      Milton A. Fowler, for the respondents.
    Section 2 of the act in question is in violation of section 11 of article 10 of the State Constitution, inasmuch as it provides that the town officers elected for the old town shall hold over, and perform the duties of their respective offices for both the towns of Fishkill and the town of Wappinger; and thus in effect appoints town officers fur both towns. (The People ex rel. Brown v. Blake, 49 Barb., 9 ; see, also, People ex rel. Wood v. Draper, 15 N. Y., 532.) When a town is divided, as in this act, two new and distinct corporations are created. (N. Hempstead v. Hempstead, 1 Hopk., 288-294; see, also, People v. Morell, 21 Wend., 563.) Town officers are local, and must reside within their respective districts. {In the Matter of Whiting, 2 Barb., 514-516.) A person cannot hold two offices incompatible with each other. {People ex rel. Whiting
      v. Carrique, 2 Hill, 93.) Assessors are required to sit on the third Tuesday of August in their respective towns, to hear complaints. How can the same men actúas assessors for two towns, and perform this duty which is necessary to make their proceedings regular ?
   Pratt, J.:

The question presented by these appeals is as to the constitutionality of chapter 400 of the Laws of 1875, which assumes to divide the town of Fishldll, in the county of Dutchess, into two towns by creating, out of a portion of the territory, a new town named Wappinger.

The act is challenged as being in conflict with section 17 of article 3 of the Constitution, which is as follows :

“No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in said act.”

The third section .of the act, the one which is supposed to offend this constitutional provision, is in the following language :

“ All laws in force at and from the time of the passage of this act, applicable to the town of Fishldll as now existing, shall apply to the town of Fishkill as hereby continued, except such laws as are inconsistent with the provisions of this act.”

As was said by the late Chief Justice Oaklet, in The Sun M. Ins. Co. v. City of New York (5 Sandf. S. C. R., 16): “ It is not a light thing to set aside an act of the legislature, even when the objections to it are grave and mighty and in the outset of this discussion, it is important that we keep in mind the principles which should govern courts, in determining constitutional questions.

An act is not to be declared unconstitutional unless it is glaringly so. (Macomber v. Mayor of New York, 17 Abb., 35.)

It must clearly appear that the legislature has transcended its constitutional powers before its formal enactments will be declared void. (People v. Allen, 42 N. Y., 381.)

Before proceeding to annul, by judicial sentence, what has been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reasonable intendment or allowable presumption. (People v. Supervisors of Orange, 17 N. Y., 241; Met. Bank v. Van Dycke, 27 id., 460.)

Every presumption is in favor of the validity of legislative acts, ancl they are to be upheld unless there is a substantial departure-from the organic law. (People v. Briggs, 50 N. Y., 558.)

Courts have no concern with the propriety or wisdom of legislation. That power has been committed, by the Constitution, to the legislative department of government, and with its exercise courts cannot interfere. (Id., pp. 558, 559.)

The strict letter of the act is not always to determine its character, but courts will rather consider what is the fair meaning, and will expound it differently from the letter to preserve the intent. (Brown’s Legal Maxims, 437; People v. Albertson, 55 N. Y., 56.)

If an act is not within the mischief intended to be guarded against by the Constitution, it does not offend its provisions. (Conner v. Mayor, 5 N. Y., 293.)

In the light of these principles we are first to inquire: What was the evil designed to be guarded against by the constitutional provision which we have quoted ? Plainly it was intended to prevent enactments by reference to laws, the scope and meaning of -which might not be duly considered by the legislators, and which might be obscure and difficult .to understand by those to whom they applied. In the expressive words of the learned counsel for the respondent, it was to prevent blind legislation.

Courts will be careful to see that this eminently wise purpose of the organic law is not frustrated by the legislature.

Is the act under consideration obnoxious to that objection ? It seems to me very clear that it is not. .The intention of the legislature is very plain. The object of the act is to create a new town out of a portion of the territory of the town of Fishkill. The unmistakable intention of the above quoted third section is to preserve the existing state of things with reference to the remaining portion of the town, as far as is possible, consistent with the division of the town. It is at least doubtful whether the express provisions of that section were necessary for that purpose, a:id whether the effect would not have been the same if the section had been wholly omitted. But it is not easy to perceive how a clear expression of that intent can be said to violate any provision of the Constitution,

There was here no enactment of a body of new law or any single law by reference; on the contrary, there was a new preservation of existing laws, or perhaps more accurately, a disclaimer of any intent to repeal or abrogate existing laws, or disturb the condition of things any further than was indispensable to carry into effect the main purpose of the act. That this intention of the lawmaking power is not within the mischief designed to be guarded against in the organic law, it seems to me cannot be seriously questioned.

These considerations dispose as well of the objection to the eleventh section of the act.

The act was passed May twentieth, less than three months after the annual election for town officers had been held

To avoid the inconvenience and expense of a special election for a fraction of a year, the last named section provides that for the time being, and until the recurrence of the regular time for electing town officers, the officers which had already been elected should continue in office and perform the duties of their respective offices for both towns.

The act, in other words, was not of complete effect until the succeeding March, and to that extent, the concluding section (which declaims .that the act shall take effect immediately), is to be understood as qualified. This expedient involved some awkward results, but I do not see that there was such a plain violation of the Constitution, in this provisional arrangement, as would justify the court in annulling the whole law.

Having arrived at the conclusion that the act of the legislature is not in conflict with the Constitution, and as that is the only question which either party desires considered, the orders appealed from should be reversed and an order made directing that the mandamus issue.

Talcott, J., concurred. Barnard, P. J., not sitting.

Order reversed, with costs.


author: Talcott, J.:

text:
    THE GREENPOINT SUGAR COMPANY Respondent, v. THE KINGS COUNTY MANUFACTURING COMPANY, EDGAR TUCKER, HENRY WHITIN and others, Appellants.

      Manufacturing corporations — chap. 40 of 1848 — right to mortgage — right to take back mortgage on sale of land— chap. 517 of 1864 — form of assent required by — time of filing of — number of stockholders whose assent is required.

    The acl, chapter 517 of 1864, authorizing manufacturing- corporations to execute mortgages, with the written assent of two-thirds of their stockholders, prescribes no particular form in which such assent is to be given. Any instrument is sufficient, which contains reasonable evidence of the consent of two-thirds of the stockholders, and which contains enough to identify the mortgage to which such assent is intended to be given.
    Such assent is sufficient, even though the amount, to secure which the mortgage is to be given, is not specified therein.
    •Parol evidence is admissible to identify the mortgage, when the description of it in the written instrument is imperfect.

      Qumre, whether such evidence would be admissible for that purpose, when the description was false.
    Tiie provision of the statute requiring the consent of the stockholders owning at least two-thirds of the capital stock, refers to the stock issued, or agreed to be issued, or actually subscribed for, and not to the nominal amount to which tiie capital stock is limited in the certificate of incorporation.
    The only effect of the section of the statute providing that the mortgage shall be valid provided that the written assent “shallfirst be filed,” is to prevent the mortgage from taking effect as a valid instrument until after the filing of the assent.
    Semble, that even if the assent were not executed or filed until after the recording of the mortgage, the latter would become valid and effective from the time of such filing-. (Per Talcott, J.)
    It was stipulated, in this case, that the assent was filed with the county clerk on tiie fourth of November, and it appeared from the certificate of the clerk that the mortgage was recorded on that day, at 8.15 P. K. Held, that the legal presumption was that the assent was filed at the earliest possible moment, and therefore prior to the time of recording the mortgage.
    Where a corporation, created under the act of 1848, is desirous of selling a portion of its real estate to another corporation, it may, if necessary, agree to advance money to the latter to be employed in the erection of buildings upon such land, and take a mortgage for the purchase-price of the land sold, and the money so advanced.

      Arxucal from a judgment of foreclosure and sale, entered upon the trial of this action by the court without a jury. The action was brought to foreclose two mortgages given by the defendant corporation to the plaintiff, one for $44,244.24, dated and recorded November 4, 1869, and the other for $7,407, dated February 10, 1872, and recorded March 1, 1872. The latter was given to secure an amouut due to the plaintiff for taxes on the property, interest on the first mortgage, etc.

      Everett P. Wheeler, for appellants Kings County Manufacturing Co. and Tucker.

      Hamilton Odell, for appellant Wliitin.

      Luden Birdseye and Richard S. Emmett, for the respondents.
    The statute of May 2, 1864, is to be considered liberally, and according to its intent. (Holmes v. Garley, 31 N. Y., 289 ;. Cham berlain v. Western Trans. Co., 45 Barb., 218.) At common law, a corporation, like an individual, has an absolute right to mortgage its property. Any statutory limitation of such a right is in derogation of the common law, and is to be limited and construed strictly, and all exceptions thereto are to be construed liberally, aud so as to promote the rights and interests of the parties. {Whitney v. Union Trxist Co. of N. Y., in Commission of Appeals, May, 1875, MS.; Central Gold Mining Co. v. Platt, 3 Daly, 263.) The accidental omission to insert in the blank left for that purpose, in the assent, the precise amount for which the bond was to be given, did not nullify the assent to the giving of the bond, nor the assent to the giving of the mortgage to secure the bond whose execution was thus assented to. (Ohauncey v. Arnold, 24 N. Y., 330; Texira v. Evans, referred to therein; 4 T. R., 320, S. C.; Woolley v. Constant, 4 Johns., 60; Ex parte Decker, 6 Cow., 60; Knapp v. Maliby, 13 Wend., 587.) The subject to which the assent of the stockholders in question referred, viz., the precise mortgage in suit, of November 4, 1869, was fully proved in this case, was shown to have been known to the subscribers to that assent, and to have been agreed to by them. The general-rule, as established by numerous cases,, is that such evidence is always admissible to ascertain the nature and qualities of the subject to which an instrument refers. (Green!, on Ev., § 286-288; Cary v. Thompson, 1 Daly, 35; Galen v. Brown, 22 N. Y., 37; Fish v. Hubbard, 21 Wend., 651; Pritchard v. Pioles, 1 Paige, 270; Rowe v. Thompson, 15 Abb. Pr., 377; Tibbs v. Morris, 44 Barb., 138; Sale v. Darragh, 2 Iiilt., 184; MoHulty v. Prentiss, 25 Barb., 204; Boyd v. Brother son, 10 Wend., 93; GluteY.Sma.il, 17 id., 238; Judd v. Ensign, 6 Barb.,-258; Ex parte Homley, 3 Bradf., 420.)
   Talcott, J.:

The main question in this case is as to the validity of the mortgage of November 4, 1869, for $44,244.24. This mortgage was made by the Kings County Manufacturing Company to the plaintiff, to secure the payment of a balance due from the Manufacturing Company for the purchase-money of the land, and money advanced to erect the buildings on the premises, purchased by the Manufacturing Company of the plaintiff, for the purpose of establishing thereon the manufactory of the Kings County Company. By the act to authorize the formation of corporations for manufacturing purposes, under which the Kings County Company was formed (Laws of 1848, chap. 40), such companies were expressly prohibited from giving any lien upon their corporate property, by mortgage or otherwise. This act was amended by chapter 517 of. the Law of 1864, whereby it is provided that such corporations may secure any debt heretofore contracted, or which “may be contracted by it in the business for which it was incorporated, by mortgaging all or any part of the real estate of such corporation, and every mortgage so made shall be as valid to all intents and purposes as if executed by an individual owning such real estate; provided, that the assent of the stockholders, owning at least two-thirds of the capital stock of such corporation, shall first be filed in the office of the clerk of the county where the mortgaged property is situated.” The question as to the validity of the mortgage of November 4th, 1869, arises upon the construction of the amending act of 1864. It is claimed by the defendants : First, that no such assent as the statute requires -was given ; second, that it was not filed before the mortgage was executed ; third, that it was not assented to by the owners of two-thirds of the capital stock. A written assent, signed by stockholders claiming to be the owners of more than two-thirds of tlie company, Avas signed, in the words following: “ Know all men by these presents, that Ave the undersigned, stockholders of the Kings County Manufacturing Company, and owning mom than two-tliirds of the capital stock of the.said company, do hereby severally consent that the said Kings County Manufacturing Company execute to tbe Greenpoint Sugar Company a bond conditioned for the payment of-, and a mortgage to secure the same upon the lands and premises by them owned, situate in the city of Brooklyn, county of Kings, in the State of New York, or any part thereof. Dated October 21, 1869.”

The defendants deny that this assent is in a form sufficient to satisfy the statute, inasmuch as the amount of the bond to be secured by the mortgage is not specified therein. The statute prescribes no form in which the assent shall be given. The object of the act is the protection of the stockholders, and to guard against the poAver of the officers of the company to incumber its property without the consent of at least two-thirds of the stockholders. The Avrifcten assent is the evidence required by the statute, and as no particular form is specified or required, any form Avhicli they may choose to adopt, and which contains reasonable eAÚdence of the consent of-two-thirds of tbe stockholders to the making of-the mortgage in question, is sufficient. If the instrument contains enough to specify and identify the mortgage to which tbe stockholders intended to give their assent, it is sufficient. Iu this case it seems that tbe amount of the condition of the bond was left iu blank, owing to tbe uncertainty as to the precise amount Avhicli would be due tbe Sugar Company, on a settlement then about to be made of tlie accounts between the two companies. I do not see why the stockholders might not assent to the making of a mortgage without specifying the precise amount. Of course, in order to be valid, the mortgage must be founded on the consideration mentioned in tbe statute. True, a consent to tbe execution of a mortgage for tbe amount, of an unascertained indebtedness, exposes the corporation to the risk of the fraud of its officers, as an individual, is exposed to the fraud of his agent, who intrusts the latter with a blank promissory note or check. The instrument specifies the mortgage, aud the statute supplies the additional fact. that it is to bo for a debt contracted by the mortgagor in the business for which it was incorporated. It seems to me to be the same in legal effect, as though the instrument had recited the fact, that the parties signing it assented that the Kings County Manufacturing Company should make a mortgage to the Sugar Company to secure the payment of the indebtedness, whatever it might amount to, of the former to the latter company, and I do not doubt but that such would be a sufficient assent to comply with the amendment of 1861. The statute prescribes no language in which the assent shall be couched, and no particulars which shall be stated °in it. It is hot required to be acknowledged, proved or recorded, nor is it to have any effect as evidence, or by way of notice, upon subsequent grantees or incumbrancers. It has no force except., when duly proved, as evidence of the assent required by the statute. The filing in the clerk’s office is apparently only for the benefit of the mortgagee, or his assigns, to preserve the evidence of the assent which might otherwise be forgotten, lost or destroyed. Those who signed the instrument in this case, .unquestionably assented to the making’ of some mortgage. It is a mere question of identity. The defendants insist, not that the description in the instrument of assent is false, in which case it might be doubtful if it could be corrected by parol evidence, but that the description is imperfect. Andón the question thus raised as to the identity of the mortgage in fact executed, and that referred to in the assent, I think the parol evidence, so far as it was of any importance, was admissible. I think, therefore, the instrument of assent was, in form, a sufficient compliance with the act of 1861. It was provided in the articles of association of the Kings County Manufacturing Company, that the capital stock of the corporation should consist of 2,500 shares of $100 each. But in point of fact only 2,000 shares had been issued or taken, or agreed to be taken. The two-thirds of the capital stock referred to in the act of 1861, must be held to refer to the capital stock issued, or agreed to be issued or actually subscribed for, instead of the mere nominal amount to which the capital stock is limited in the certificate of incorporation. The object of the act of 1861, is to prevent the real estate of such corporations being incumbered, except by the formal consent of two-thii'ds of those interested. The amount of the capital stock named in the certificate of incorporation is merely a limitation upon the amount which can be issued. Such of the stock as has not been issued, or agreed so to be, or even subscribed for, belongs to nobody, lias no existence as capital stock within the meaning of the act of 1864, and is not capable of representation in a vote of the stockholders. The whole intent of the act of 1864 is satisfied by requiring the assent to a mortgage, of two-thirds of the actual stockholders. . The defendants claim that as to-109 shares of stock standing on the books in the name of Clinton Furbish, as a part of 234 shares standing to his credit, that the certificate therefor had never been delivered to him, and that there-was no proof that he had ever subscribed or paid for the same; in fact, that the said 109 shares were no part of the actual existing outstanding shares of the capital stock of the company. If the views hereinbefore taken, as to what constitutes the capital stock of the company within the meaning of the act of 1864, are correct, it becomes unnecessary to examine as to whether the finding of the court as to these 109 shares is supported by the evidence or not, as the finding becomes wholly • immaterial. The actual existing stock of the company being only 2,000 shares, 1,334 shares constituted two thirds thereof. The amount held by the parties who signed the assent, as appeared by the stock ledger, was 1,696 shares, deducting the 109 shares from the amount credited to Clinton Furbish, and as to which the title is questioned, there still remain represented by the signers of the assent more than two-thirds of the actual capital stock of the company, capable of representation. It is objected by the defendants that the assent was not filed in the office of the county clerk before the execution of the mortgage in question, while the statute requires the assent to be “ first filed.” The facts are that the assent dated on the twenty-first day of October was signed by all the signers between that time and the date of the execution of the mortgage. The assent was delivered to the counsel of the mortgagee with the mortgage, and was sent to the clerk of Kings county at the same time with the mortgage. The provision of the act of 1864 is, that every mortgage so made, etc., shall be as valid to all intents and purposes, as if executed by an individual owning such real estate,” provided, that the written assent, etc., “ shall first be filed,” etc.

It is not provided that the mortgage shall be void if executed before the written assent is filed, or even given. The only effect which it is necessary to give the statute, in accordance with its intention, is that the mortgage shall not take effect as a valid instrument until after the filing of the assent.. And I think that the assent required by the statute, even if executed after the execution of the mortgage, and filed after the recording of the mortgage, would render the mortgage valid and effectual from the time of the filing of the assent. And that the mortgage would take effect from that time, notwithstanding the omission to file the assent until after the execution and recording of the mortgage. It is not at all probable or necessary, to carry out the intention of the act, to believe that the legislature meant to make the validity of the mortgage depend upon which paper happened to be first deposited in the clerk’s office. If this view is correct, it is of no consequence which paper was first executed or filed. But the finding of the justice at the Special Term, was, probably, technically correct and according to the legal presumption. It appears by the stipulation of facts that the assent was filed with the clerk of the county of Kings, on the fourth day of November. The clerk is not required to note the hour of the filing, and no proof was given to overthrow the presumption that it was filed at the earliest moment of the fourth of November, at which business could be transacted at the county clerk’s office. The mortgage bearing date on the fourth day of November is presumed to have been made on that day, and not before, and as it appears from the clerk’s certificate, which is required to specify the time when the mortgage was recorded, it was recorded, or left for record on the said fourth day of November, .■at fifteen minutes past three p. m. So that the legal presumption ■establishes what was possibly the fact, that the assent was filed ■before the mortgage was delivered to the clerk for record. The ■objection made to the validity of the second mortgage is, that the .assent was not filed before the mortgage was executed. The assent to this mortgage is a more formal instrument than the one referring to the mortgage of November fourth, and the objection taken to this assent is, that it was not filed before the execution of the mortgage to which it refers. If the views herein expressed in considering the question as to the filing of the assent referring to the mortgage of November fourth are correct, they furnish an answer to the objection as to the filing of the assent to the making of the second mortgage. It is claimed that the taking of the first mortgage by the plaintiff was ultra vires, and that it is therefore void. It appears that at least a part of the amount secured by that mortgage was advanced by the plaintiff, the Sugar Company, to the Kings County Company, in payment for buildings in process of erection on the premises, the legal title to which was still in the plaintiff, but which it had contracted to sell to the Kings County Company. Non constat, but it was a part of the agreement between the two companies, when the Kings County Company agreed to purchase the premises, that the Sugar Company should advance apart of the money toward the erection of the buildings on the premises by the Kings County Company, and take security on the premises and buildings when erected for the whole amount, including both the price of the land and the amount advanced for building. The Sugar Company retained the legal title to the premises, including the buildings, until they received the mortgage of November four. Such an arrangement is not unusual. It is usually made to facilitate the sale of the ground, and as against this objection will be presumed to have been done by the plaintiff for that reason, and to have been necessary to aud a part of the agreement whereby the Sugar Company was enabled to sell the land, and therefore to have been within the purview of its legitimate business. Mr. Ezra Tucker sets up in his answer an agreement on the part of the plaintiff to extend the time for the payment of the mortgage. The court, at Special Term, have found that no such agreement was made, and the finding is supported by the evidence.

The judgment is affirmed, with costs of the appeal to the respondent.

Present —Talcott and Pratt, JJ. Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    GEORGE W. HALLOCK, Appellant, v. NATHANIEL DOMINY and SYLVANUS M. OSBORN, Respondents.

      Section 38, art. 8 of the Constitution — Chap. 194 of 1849 — right to take fish in ■ navigable waters —power of legislature and supervisors to regulate —false imprisonment— action for.

    By the passage of chapter 194 of 1849, authorizing the boards of supervisors of tl.e several counties to make such regulations as they should deem necessary, “ to provide for the protection of shell and other fish within the waters of their respective counties,” the legislature did not intend to authorize the board of supervisors to restrict the right of taking fish from navigable waters within the limits of their respective counties, to any particular class of persons.

      Semble, that the legislature, itself, could not enact any local bill, giving to the inhabitants of a town such exclusive privilege or franchise.
    The defendants caused the arrest of the plaintiff upon an execution, issued upon a judgment recovered in an action, brought before a justice of the peace, to recover a penalty incurred by a violation of an act of the board of supervisors of Suffolk county, forbidding any person, except an inhabitant of the town of East Hampton, from catching any fish in the creeks, bays or waters of the said town. The plaintiff, having paid the amount of that judgment, brought this action to recover damages for false imprisonment. Held, that he was entitled to recover. That the act of the supervisors being without authority, conferred no .jurisdiction upon the justice of the peace, and that the defendants by personally directing the arrest of the plaintiff upon the void process, made themselves liable as trespassers.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury, dismissing the plaintiff’s complaint.

      George Miller, for the appellant.

      Wm. Wielcham, for the respondents.
   Talcott, J.:

This is an action for false imprisonment brought under the following circumstances. The legislature, under the twenty-third section of the third article of the Constitution, conferred upon the boards of supervisors of the several counties in the State certain powers of local legislation, and such boards were by the legislative act in question to make such regulations “ as they may deem necessary aiul provide for the enforcing of the same” for a variety of purposes, amongst others, “ to provide for the protection of shell and other fish within the waters of their respective counties.” (Session Laws of 1849, chap. 194, § 4, subd. 13.)

Claiming to act under the power thus conferred by the legislature, the board of supervisors of Suffolk county, in November, 1854, passed an act entitled “An act for the preservation of good and eatable fish in the waters of the town of East Hampton,” whereby it was enacted as follows:

“Eirst. No person or persons, other than the inhabitants of the town of East Hampton, shall hereafter take, or catch, any fish, commonly called eatable fish, with seines, or nets in any part of the creeks, bays, or waters of the town of East Hampton, nor shall any person or persons, other than the inhabitants of the town of East Hampton, take or catch-any eels, clams, oysters or shell fish of any kind from any fiats, or in any of the creeks, bays or waters of the town of East Hampton.
“ Second. Any person or persons who shall violate any of the provisions of the first section of this act, shall, on conviction, forfeit the sum of fifty dollars.
“ Third. Any person may in his own name, or in the name of himself and the overseers of the poor of the said town, prosecute and recover the penalty specified in this act for himself and the said overseers of the town, and on recovery shall be entitled to retain one-half of said penalty, and the other half, after deducting one-lmlf of the expenses of the prosecution, shall be paid to the overseers for the support of the poor of the said town.
“Fourth. This act shall take effect on the first day of January next.”

Tinder this act of the board of supervisors an action was duly instituted by the defendants in this action, who are two of the trustees of the town of East Hampton, against the plaintiff herein, before a justice of the peace, and a judgment for the penalty was recovered, the defendant not appearing on the return day of the summons; in default of goods and chattels the plaintiff was arrested and committed to the county jail, and afterwards, to effect his telease from confinement, paid the judgment.

The action before the justice was instituted in -pursuance of a resolution of the trustees of East Hampton. But the plaintiffs in that action personally directed the arrest of the defendant on the execution. This action, which is brought to recover damages for the arrest on the execution in the action for the penalty, was tried at the Suffolk Circuit, before a justice of this court without a jury. The defendants set up the act of the supervisors and the proceedings before the justice of the peace, as a justification of the arrest and imprisonment. The justice at the Circuit ruled that the board of supervisors had jurisdiction of the subject-matter legislated upon by them, and that it did not appear that they had improperly exercised their powers.

The sole question presented on this appeal by the counsel for the respective parties is as to the validity of the law, or ordinance, enacted by the supervisors. The defendant was sued for catching scallops, a shell fish, in Peconic bay, a portion of the waters of the Atlantic ocean, about three-fourths of a mile from the land and “ nearer to East Hampton than to any other town.” The bays described in the supervisors’ act are portions of the navigable waters of the ocean. The navigable waters and the land under the same within the body of any county are the property of the people of the State, in their sovereign capacity, and are held for the common use and benefit of all. By the common law every one has an equal right to such creatures as are not naturally under the power and control of man and not domesticated. The mere capture, or seizure, of such creatures creates a property in them in behalf of the captor. Regulations to prevent the capture, or disturbance, of such creatures, either fish or game, at certain seasons of the year, or with certain means and appliances, applicable alike to all persons, are admitted to be within the powers of the legislative body having jurisdiction over the place, but an act prohibiting the capture of such animals as are ferae naturae, in the waters or on the land belonging to the public, as an incident of sovereignty of the State, except to a certain specified class of persons, creates what is in the nature of a franchise in such persons, and I do not think the exercise of such a power was within the intention of the legislature when it enacted the statute, empowering the boards of supervisors of the several counties to legislate for the protection and preservation of fish and game within their counties. It is claimed that the act of the supervisors of Suffolk county tends to the preservation of the fish in the waters adjoining the town of East Hampton, inasmuch as, by restricting the number of those who are authorized to catch them to the inhabitants of a certain locality, the number of those who, for profit or pleasure, would otherwise engage in their capture is lessened. I do not see why, upon the same argument, the board of supervisors might not restrict the number of those who should he authorized to catch the fish, or capture or kill the game, to such persons as shall be possessed of a particular estate, or a particular amount of land, and thus a privileged class would be created, such, or similar to that which exists under the game laws of England. All such laws creating privileged classes are contrary to the spirit of our institutions, arid I cannot think that the legislature intended to authorize the creation of any privileged class by the authority of the act in question. The attempt, therefore, of the supervisors of Suffolk county to confer upon those dwelling in the town of East Hampton the exclusive franchise of fishing in the navigable waters of the State, lying within the boundaries of that town, was ineffectual and void. The legislature itself could not enact any local bill, giving to the individuals residing at East Hampton the exclusive privilege or franchise in question (Const., art. 3, § 18), and it is not to be presumed that it intended to confer the privilege upon the boards of supervisors. The act of the board of supervisors, then, being without authority, conferred no jurisdiction upon the justice of the peace to entertain the action or to issue the execution in question, and I do not see but what, upon' the settled law, the defendants, by directing the arrest of the plaintiff upon the void process, made themselves liable as trespassers, notwithstanding the judicial decision of the justice that the proceedings before him were iawful. That the defendants acted in good faith, and in the belief that they were justified in enforcing the supervisors’ act, is quite probable. Bat this matter is to be considered in the award of damages.

New trial granted, costs to abide the event.

Present — Barnard, P. J., and Talcott, J. Pratt, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.


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    FREDERICK W. HOTCHKISS, Appellant, v. JOHN H. PLATT, Assignee, etc., Impleaded, Respondent.

      Sureties to an undertaking — right of appeal — injunction.

    Where an order directing a reference to ascertain the damages sustained by the defendant in consequence of the issuing of an injunction, requires five days’ notice of the hearing to be given to the sureties upon the undertaking, which was not signed by the plaintiff, and the sureties appear before the referee and oppose the confirmation of the report at Special term, they are entitled to maintain an appeal to the General Term from the order confirming the report of-the referee, although they are not parties to the action.
    Motion to dismiss an appeal from an order of the Special Term, confirming the report of a referee.

      Austin O. Fox and Waldo Hutchins, for the motion.

      Thomas H. Hubbard, opposed.
   Talcott, J.:

This is a motion to dismiss an appeal from an order made at the Special Term of Kings county, confirming the report of a referee to whom it was referred to assess the damages sustained by the issuing of an injunction in this action.

The undertaking was not executed by the plaintiff in the action, but by Clark and Wells, as sureties for the plaintiff; and it provided that “ the said plaintiff will pay to the defendant, so enjoined, such damages, not exceeding the before mentioned sum, as he may sustain by reason of the said injunction; if this court shall finally decide that the said plaintiff -was not entitled thereto, such damages to be ascertained by a reference or otherwise, as the court shall direct:” The order of reference required that five days’ notice of the hearing before the referee should be given to Clark and Wells, “ the sureties named in the undertaking given on obtaining the said injunction.” Notice of such hearing was accordingly given to the said sureties, who appeared, with their counsel, before the referee; and witnesses were produced and examined in their behalf. After the report of the referee was made, the matter, on the motion of the sureties, was recommitted to the referee for further explanations and findings, and to annex liis opinion. On the coming in of the further report the sureties filed exceptions thereto. The sureties were notified of a motion to confirm the report; appeared by counsel, on the motion to confirm, and opposed the same. The report was, however, confirmed by the Special Term, and the appeal, the dismissal of which is now moved, is from the order confirming the report of the referee. The motion to dismiss the appeal is made upon the ground that the parties, not being.parties to the suit, cannot appeal; and numerous decisions are referred to, by the respondent’s counsel, to establish the proposition that none but a party to a suit can appeal from any proceeding therein ; without stopping to comment upon the authorities so referred to, and which certainly establish,- as a general proposition, that none but a party to a suit can appeal therein, I think that, according to the practice as settled by the Court of Appeals, the appellants in this case are correct, in assuming that they are entitled to invoke the judgment of the General Term as to whether the report of the referees ought to have been confirmed. In the case of The Methodist Churches v. Barker (18 N. Y., 463, op. 466), which case involved a consideration of the rights and status of the sureties on an injunction bond, in regard to the proceedings to assess the damages thereon, Comstock, J., says: “I do not doubt that the court may, if deemed expedient, direct that the sureties be notified of the proceedings. The surety, I do not question, may even be heard on an application to set aside the report, and to send it back for a correction if it be wrong; but these are questions which address themselves to the court in which the proceedings are.”

These suggestions seem to be obviously just, considering that the assessment is to be conclusive upon the surety as to the amount of his liability, unless it can be impeached for fraud or collusion ; and the presumption, fairly arising from the fact that the court in making the order of reference, ordered that the sureties be notified to attend, is that they were to attend for the purpose of protecting their interests in the questions to be litigated before the referee. The- sureties were heard on a motion to recommit the matter to the referee, and, on their motion, it was so recommitted. They were also heard in opposition to the confirmation of the report, Now, if all these things were proper at the Special Term, and if the confirmation of the report there was a matter of discretion, as is conceded in -the opinion in The Methodist Churches v. Barker (supra), then, under the more recent decisions, an appeal from the exercise of that discretion lies from the Special to the General Term. (Matter of Duff, 10 Abb. [N. S.], 416.) Though not strictly parties to the suit, they have, it seems, been made such by the action of the court, to a certain extent; to wit, so far forth as to enable them to be heard by counsel and by witnesses in the proceedings before the court in which the reference is pending. I think, therefore, that an appeal lies to the General Term of this court, from the exercise of the discretion of the Special Term in the confirmation of the report of the referee, and am in favor of denying the motion to dismiss the appeal, with costs and disbursements of the motion.

Present — Barnard, P. J., and Taloott, J. Pratt, J., not sitting.

Motion to dismiss appeal denied, with ten dollars costs and disbursements.


author: Taloott, J.:

text:
    THEODORE S. NEWTON, Respondent, v. WILLIAM FORDHAM, Appellant.

      Evidence — opinion of witness — when inadmissible.

    In an action to recover damages sustained by defendant’s drawing a dredge over plaintiff’s oyster bed, a witness was asked, against defendant’s objection and exception, “ What, in your opinion, would be tbe damages of dredging across a bed of tbe size of Newton’s [plaintiff], planted with young oysters?” Held,, that it was error to allow the witness to answer tbe question.
    Appeal from a judgment of the County Court of Suffolk county, affirming a judgment recovered by the plaintiff in a Justice’s Court.

      Thos. J. Bitch, Jr., for the appellant.

      Strong & Spear, for the respondent.
   Taloott, J.:

This is an action brought to recover damages sustained by the plaintiff, by reason of the drawing of a dredge over the plaintiff’s private oyster bed in the waters of Long Island sound.

The action was tried before a justice of the peace of Suffolk county and a jury. The jury found a verdict for the plaintiff for ten dollars, and the justice rendered a judgment for that amount, with costs. The defendant appealed to the County Court, which affirmed the judgment.

It appears that on the trial a witness (Risley) was asked, “ What, in your opinion, would be the damage of dredging across a bed of the size of Newton’s planted with young oysters? ” To this question the defendant objected, because it was irrelevant, and because it was speculative. The question was, nevertheless, permitted. This was manifestly error. A witness cannot state his mere opinion as to what amount of damages a party has sustained by the commission of a trespass. He may state all the facts within his knowledge which bear upon the question, but cannot be permitted to state his opinion as to the effect of those facts, or his opinion formed from facts not stated. To draw this conclusion from the evidence is the province of the jury. The county judge, it would seem from the opinion, did not, apparently, notice the point of the objection. The authorities are quite numerous to show that the admission of the testimony ivas erroneous. The opinions of witnesses are only competent on questions of science, or skill. The question objected to in this case involved neither. It may have required some experience to enable a person to express an opinion on the subject of any value, as some experience is required to form a correct judgment in regard to most questions of fact. To form such judgment after the fads shall have been established is the province of the jury. (See 48 N. Y., 669.)

The judgment of the justice and of the County Court reversed, with costs.

Present — Barnard, P. J., Taloott and Pratt, JJ.

Judgment of County Court reversed, with costs.


text:
    GUYON F. GOSMAN and GEORGE H. GOSMAN, Appellants, v. JOHN P. CRUGER and ELIZA L. C. CRUGER, Respondents.

      Married woman — liability of.

    This action was brought against the defendant Eliza Ornger, a married woman, as one of the sureties of one Olcott, upon a bond given by him as the guardian of the plaintiffs. There was nothing in the undertaking charging the separate estate of the defendant. Meld, that she was not liable thereon.
    Appeal from a judgment of the Special Term dismissing the complaint as to the'defendant Eliza L. O. Ornger.

      Elihu Root, for the appellants.

      G. Frost, for the respondent.
   Talcott, J.:

The action is brought against the defendant Eliza L. O. Ornger, upon a bond signed by her, whereby she became one of the sureties of Edwin R. Olcott as the guardian of the plaintiff's, then being minors. The Special Term dismissed the complaint as to Mrs. Ornger, who it appeared was a married woman" at the time of the execution of the bond, upon the ground of her coverture. The decision at the Special Term was in accordance with the settléd law of this State, as laid down in several decisions of the court of last resort, by which it has been determined that the contract of a married woman, except such contracts as relate to the business in which she has been engaged on her own account, under the statute which authorizes her to carry on business on her'own account, .is void at law; and any separate estate which she may own at the time of making the contract, can be charged with liability for a debt founded on such contract, only when the intent to charge it is “declared in the contract which is the foundation of the charge, or when the consideration is for the direct benefit of her separate estate.” (Yale v. Dederer, 18 N. Y., 265; S. C., 22 id., 450; Maxon v. Scott, 55 id., 247.)

It is claimed by the appellant, that inasmuch as the law, under which the bond was given, required that the sureties in such a bond must each be worth the amount specified in the penalty of the bond, therefore, it is to be presumed that Mrs. Oruger intended, or the court accepting the bond intended, that it should operate as a pledge of her separate estate. Conceding the reasonableness of such an inference, it presents no stronger case for charging the separate estate than was presented on the second trial of the case of Yale v. Dederer (22 N. Y., supra), where the court had expressly found an intention to charge the separate estate.

There is no safety in multiplying exceptions to the plain and clear rule laid down by the court of last resort, viz., that in order to operate as a charge upon her separate estate, when the engagement of a feme eovert is made upon a consideration in which she or her estate has no direct interest, the intention to charge must be expressed in the contract which is the foundation of the charge.

The judgment is affirmed, with costs of the appeal.

Present —■ Talcott and Pratt, JJ. Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    ABRAHAM COLLIER, Respondent, v. NANCY M. DeREVERE, Appellant.

      Code, §§ 283, 292 — supplementary proceedings — right of executors of deceased judgment creditor to institute.

    Under section 283 of the Code, the personal representatives of a deceased judgment creditor may, at any time within five years after the entry of the judgment, institute proceedings supplementary to execution, to enforce the same.
    It is not necessary that the death of the .creditor or the appointment of the personal representatives should he made to appear by affidavit. The existence of such fact is necessary to authorize the officer to make the order, but no formal proof thereof is required, furlher than such as the officer may require to satisfy his own conscience.
    Appeal from an order of the county judge of Westchester county, denying a motion to dismiss proceedings supplementary to execution, instituted by the executrix of the plaintiff herein.

      Thomas G. Swartwout, for the appellant.

      J. S. Millard, for the respondent.
   Talcott, J.:

This is an appeal from an order made by the county judge of Westchester county, denying the defendant’s motion to dismiss proceedings supplementary to the execution in the action above entitled, on the ground of the insufficiency of the affidavit made to procure the order for the examination of the defendant under section 292 of the Code. The affidavit is made by I. S. Millard, Esq., and states, not by direct averment, but by way of recital, that the plaintiff in the judgment is deceased, and that he, the deponent, is “ the attorney of Harriet Collier, the executrix of Abraham Collier, deceased, and owner of the judgment- in the foregoing action.” The order made by the county judge is that the defendant, Nancy DeRevere, appear at the time and place therein specified, and make discovery on oath concerning her property, and does not, by way of recital or otherwise, refer to the decease of the plaintiff in the action, or that the proceeding is instituted in behalf of the executrix.

By section 283 of the Code, as amended in 1866, it is provided that the personal representative of a deceased party in whose favor a judgment shall have been rendered, may, at any time within five years after the entry of the judgment, proceed to euforce the same as prescribed by the title containing the said section 283, which title embraces the proceedings supplementary to the execution. There can be no doubt, then, but the executrix may institute the proceedings in question. The section 292, while expressly providing that, in regard to certain other orders, proof by affidavit is to be made of the facts the existence of which authorizes the making of the order, wholly omits to- make provision for an affidavit, or any other proof of the existence -of such facts as authorize the making of the order in question. It is necessary that the facts exist, but no formal proof thereof is required to be made to the officer.

The General Term of the eighth district so held in an opinion delivered by Judge Marvin in the case of Scott v. Durfee, reported in a note to the case of Rugg v. Spencer (59 Barb., 383).

This peculiarity of the statute is noticed by Mr. Wait, in his recent, work on Practice (4 Wait’s Prac., 137); and the point of the decision in Scott v. Durfee is not questioned, although it is stated to be the usual or better practice to furnish an affidavit.

The affidavit, I apprehend, lias been required by the officer to whom the application is made, for his own private satisfaction, because lie must, in general, be ignorant of the facts which entitle the party to the order; yet if he sees tit to grant the order on the mere statement of the applicant he may do so, taking the responsibility of being able to prove the existence of the necessary facts when called upon. This being so, an objection to the sufficiency of an affidavit presented for the purpose of obtaining such an order cannot be made by the defendant. In this .ease, if the facts stated by way of recital in the affidavit are to be taken as averments, they afford at least prima facie evidence of the right to institute the proceedings. The judgment is, presumptively, the property of the executrix of the judgment creditor ; and if, for any reason, the title is not in the executrix, or if letters have not been duly issued to her, the defendant must set up such facts ; and if they be made to appear, they would, undoubtedly, prevent the further prosecution of the proceeding.

The order of the county judge of Westchester county appealed from is affirmed, with costs and disbursements of the appeal.

PresentBarnard, P. J., Talcott and Pratt, JJ.

Order affirmed, with costs and disbursements.


author: Tappen, J.:

text:
    GEORGE GREEN, Appellant, v. THE WALKILL NATIONAL BANK and JOHN BURROUGHS, as Receiver, Respondents.

      Receiver — of national hank — action by creditor.

    The appointment of a receiver under the national bank act does not absolutely dissolve the corporation, nnd in an action to establish the claim of a creditor which has been rejected either by the comptroller or receiver, the bank and the receiver may both be made parties defendant.

      Pahquioque Rank v. Bethel Bank (86 Conn., 325; S. 0., 14 Wallace, 283) followed.

      Appeal from a judgment dismissing tlie complaint, entered at tlie Orange county Circuit, in an action brought against a national bank and its receiver to establish the claim of a creditor against such corporation.
    . D. D. McKoon, for the appellant.

      Dill c& Boyce, for the respondents.

      This case was decided at the December term, 1875.

   Tappen, J.:

This is an appeal from a judgment dismissing plaintiff’s-complaint, at the Orange Circuit. The action is brought to recover the value of a bond for $1,000, which plaintiff alleges the bank converted to its own use, etc. The bank failed in December, 1872, and the Comptroller of the currency appointed Burroughs receiver, who is joined as defendant, it being alleged that he refuses to allow or to hear the plaintiff’s claim; no personal judgment is sought against him. The court dismissed the complaint at the Circuit before any proofs were offered. The defendant moved for the dismissal upon the ground that no cause of action was stated against. either defendant. The exceptions were ordered to be heard at the General Term in the first instance. The defendants argue at General Term, in support of the dismissal, that no action will lie against the bank because of its dissolution, and that it is no longer a body corporate. A similar question was presented in Pahquioque Bank v. First Nat. Bank of Bethel (36 Conn., 325), and the appellate court then held that the appointment of a receiver under the national bank act does not work an absolute dissolution of the corporation. The law under which the bank was organized is known as “An act to provide a national currency,” etc., approved February 25, 1863, and June 3, 1864. It provides in the fiftieth section that in the case of banks which have suspended, and are being wound up by the Comptroller, by means of a receivership, the Comptroller shall 'make a ratable dividend on all claims that may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction. Jurisdiction is given by the act to State courts in a county where the institution is located. The Connecticut case, which will also be found in 14 Wallace, 283, also holds further, that when the creditor has established his claim, he does not acquire a lien on the property nor secure any preference; that he must take his position with other creditors whose claims are allowed or proven, and await the action of the Comptroller in the distribution of the assets realized by the receiver.

That thé action is maintainable in this form is also held in Kennedy v. Gibson (8 Wall., 506). The receiver is a proper party in proceedings for the adjudication of claims against the bank. (Turner v. Bank of Keokuk, 26 Iowa, 262.) The act of congress has not made-either the Comptroller or the receiver the final tribunal for the-decision of the rights of parties making claims against a national bank, which is being closed out, and such legislation, if attempted, would be of doubtful validity. In Bank v. Kennedy (17 Wall., 19), the court held that the receiver might sue in his own name, or in the name of the bank. The two positions taken by the defendants are not consistent with each other; they firstly claim that the Comptroller is the only party to whom the claim can be presented, or “ who can be sued," and, on the other hand, they quote the case of The Bank of Selma v. Colby (U. S. S. C., Oct., 1874), to the effect that the comptroller is to discharge his duties in disposing of and distributing the assets “ without interference by courts."

We think the rule laid down in the Connecticut case is the law, and hold that the corporation is not absolutely dissolved; that both it and the receiver may be made parties to an action to establish the claim of a creditor which has been rejected either by the Comptroller or receiver, and that the plaintiff’s action was well brought for that purpose; and further, that the recovery of a judgment does not give either lien or priority to the creditor. It seems that the peculiar or indefinite language of section 50 of the act leaves it in doubt, whether the receiver or the Comptroller is the proper party for the adjudication of claims; but the receiver being the active agent for the protection of the bank and its creditors, and being within the same jurisdiction as the bank, he is a proper party in such proceedings.

The judgment should be reversed and a new trial ordered at Circuit, costs to abide the event.

Present - — Tafpkn and Talcott, JJ. Barnard, P. J., not sitting.

New trial ordered, costs to abide event.


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    MARTIN DE LANEY and another, Respondents, v. DAVID BLIZZARD, Appellant.

      Code, § 267 — construction of— Judgment — need not be signed by judge — Nuisance — judgment for removal of.

    The provisions of section 267 of the Code, that “judgment upon the decision shall he entered accordingly four days thereafter,” is simply a direction to the clerk, who, in theory, enters the judgment upon the decision of the court, that he shall do so within four days.
    There is no provision of law requiring a judge to sign the judgment.
    Where the decision of the court simply directs the defendant to remove a nuisance, it is erroneous to provide in the judgment entered thereon that if defendant should fail to do so, then the sheriff of the county should do so.
    Appeal from an order made at Special Term, denying a motion to vacate and set aside a judgment.

      Field & Deyo, for the appellant.

      J. O. Dykman, for the respondents.

       See appeal from judgment in tills case, ante, p. 7.

   Talcott, J.:

This is an appeal from an order made at the Special Term denying a motion to vacate and set aside the judgment entered in this action, and for various other relief, as specified in the order to show cause. The action is to restrain a private nuisance, consisting of a floating landing, owned by the defendant, and which is by him kept permanently anchored in front of the premises of the plaintiffs, in Pelham bay, a part of the navigable waters of Long Island sound. The complaint demanded damages, a perpetual injunction, and that the defendant be ordered and compelled to remove the float, and for such other relief as the plaintiff should be deemed entitled to. The premises are in the county of Westchester, and the action was tried in that county, before Judge Tappen, who made his report finding the facts and conclusions of law, and ordered judgment for the plaintiffs, as follows: “ And judgment is hereby awarded in favor of the plaintiffs as asked in the complaint, to wit: that the defendant be enjoined and restrained from maintaining said float in front of plaintiffs’ said premises; and the defendant is ordered and directed by the judgment of the court to remove said float, or other obstructions so kept, or maintained, by him, from the front of said plaintiff’s premises, and that the plaintiffs recover their costs against the defendant. An application may be made to the court for such further directions in enforcement of the judgment as may be proper.” This report was signed by Judge Tappen, and was filed June 28th, 1875. The judgment was entered on the following day, and ordered that the defendant should remove the float and obstructions “immediately upon receiving a copy of the judgment;” and, if he should not do so, “then the sheriff of Westchester county is hereby directed and commanded to remove said float and all obstructions,” etc.

The defendant objects that the judgment' was prematurely entered, and insists that, under section 267 of the Code, judgment could not be entered inside of four days. By an amendment of section 267, made in the year 1870, the words “four days thereafter” were added, so as to make the section read, “judgment shall be entered aecordinglyfour days thereafter.” Before the amendment of 1870 it had been held that the provision requiring the decision of the judge to be filed within twenty days after the court at which the trial took place, was directory, and that the judgment could be entered immediately on the filing of the decision. The defendant insists that the amendment of 1870 was intended to prevent the entry of judgment until after the expiration of four days from the filing of the decision. If such was the intention of the amendment the language used was ambiguous and obscure. The universal practice has been since the amendment, as before, to enter the judgment immediately on the filing of the decision; and the amendment has been construed as a direction to the clerk, who, in theory, enters the judgment upon the decision of the court, that he shall do so within four days. It is quite possible, perhaps probable, that the intention of the amendment was as claimed by the defendant. But as the general construction has been different we think the established practice must be adhered to until the legislature shall more explicitly provide.

The defendant also objects that the judgment was not signed by the judge.

There is no provision of the present law requiring such signing. The judge is to make his decision” in waiting, and this, it is presumed, he must sign by way of authentication.

The judgment itself is to be entered in the judgment book, and is in theory entered by the clerk. (Code, § 281.) The defendant also objects that the direction to the sheriff of Westchester county to remove the float is not w'arranted by the decision of the judge and his order for judgment. This objection is well founded in fact, so far as any express direction or authority to the sheriff is concerned. In The People v. Vanderbilt (26 N. Y., 287), the judgment required the defendant to remove the nuisance, and the objection was taken that it should have been required to be removed by an officer of the court; but the court held the judgment proper, though not in the usual form. So in Corning v. The Troy Iron and Nail Factory (40 N. Y., 191), judgment was given in the Court of Appeals, of a mandatory character, to wit, that the defendants restore the water, etc. The provision of the Revised Statutes,' in reference to the writ of nuisance was, that the nuisance be removed and that the plaintiff recover the damages. (2 R. S., 333, § 7.) Under this section the practice was to have the nuisance abated by the sheriff of the county. Under the present practice, a judgment directing the party to abate the nuisance, or the sheriff to do so, or the sheriff to remove the nuisance if the party shall fail to do so, as in the present case, would doubtless be proper in itself. But the decision of the justice who tried the cause did not purport to authorize the sheriff to do any thing on the subject, and the question is: Can the attorney for the party who is entitled to a judgment enter a judgment which, although proper in itself, goes beyond the direction of the judge? If such a practice should be authorized, it would greatly endanger the rights of suitors and lead to constant motions to modify and correct the judgments so entered. It is not necessary, however, that the judgment should be wholly reversed or set aside, in order to obviate the objection in this case; an amendment of the judgment by striking out so much thereof as authorizes or requires the sheriff to remove the nuisance cures the difficulty. The float being adjudged a nuisance, the plaintiffs themselves might have removed, it, and since the defendant was ordered to remove it, I do not see that he has any just cause of complaint that it has been done without trouble or expense to himself.

Order appealed from modified by striking out from the judgment so much thereof as authorizes or requires the sheriff of Westchester comity, to remove the float and all obstructions kept or maintained by the defendant in front of the plaintiffs’ premises, with costs and disbursements of the appeal to the defendant.

Present — Barnard, P. J., Talcott and Pratt, JJ.

Ordered accordingly.


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    CHARLES O. RICHARDSON, Respondent, v. THE BROOKLYN CITY AND NEWTOWN RAILROAD COMPANY, Appellant.

      Attorney — lien on judgment — laches in enforcing — Statute of limitations.

    Although the court will extend its aid to an attorney, to prevent his being defrauded by auy collusive action between the parties to a suit, out of his reasonable compensation, yet he is called upon to invoke the aid of the court with clue diligence; anil great and unreasonable delays and laches on his part, in asserting his rights, will be as fatal to his claim, as it would be to the claim of any ordinary suitor.
    Although proceedings by au attorney to enforce liis claim do not constitute an action within the literal operation of the statute of limitations, yet in enforcing it the court will be governed by the analogy of the statute.
    Appeal from an order granting a motion on the part of .0. B. Wheeler, formerly plaintiff’s attorney, to establish a lien upon the judgments in this action, and directing the record of satisfaction of the judgments to be vacated, and giving the said Wheeler leave to issue execution for $479.30.

      Dudley Field, for the appellant.

      S. D. Lewis, for Wheeler.
   Talcott, J.:

This appeal is from an order made at a Special Term, on the 17th of May, 1875, vacating a satisfaction-piece of the judgment in this action, and authorizing Clark B. Wheeler, Esq., formerly the attorney for the plaintiff, to issue an execution upon the said judgment against the defendant for the sum $179.30, with interest. The action was commenced in 1861, by Mr. Wheeler as the plaintiff’s attorney, and judgment was entered against the defendant in March, 1862, for $1,377.21, which amount included the sum of $117.51 costs and extra allowance. In July, 1862, the plaintiff assigned the judgment to John C. Barnes. In October, 1862, Mr. Wheeler informed the assignee, by letter, that he, Wheeler, should decline doing any thing more in the suit until he was paid, and stating that he should allow the defendant to proceed and take a new trial and dismissal of the action. Prior to the 9th of December, 1862, the judgment was further assigned to William Cutter. On the 10th of December, 1862, on a motion in behalf of Cutter, the assignee, the Special Term ordered a reference to George G. Reynolds, Esq., to ascertain and report to the court the taxable costs due to Mr. Wheeler, and that on the payment of such costs by Cutter, Mr. Hitchcock be substituted as the attorney for the plaintiff, and that Wheeler deliver to said Hitchcock the papers in the action. On the 26th day of January, 1863, this order was amended by requiring the referee to report, separately, the lien or right of said Wheeler, if he has any beyond the taxable costs referred to, as against the assignee of the judgment, without prejudice to the further lien of said Wheeler, if he has any. In March, 1863, on motion of Mr. Hitchcock, as attorney for Cutter, the order was again amended by striking out the words requiring the referee to report the amount of Wheeler’s lien, if any, beyond the taxable costs. Mr. Wheeler appealed from the order as thus modified to the General Term, and the order was affirmed in May, 1863. The referee, Reynolds, reported as remaining unpaid to Mr. Wheeler the sum of fifty-three dollars and fifty-nine cents. Mr. Wheeler filed exceptions to this report, which exceptions were overruled and the report confirmed. From the order overruling the exceptions and confirming the report Mr. Wheeler appealed; but the papers do not show that any disposition lias ever been made of the appeal. The next movement on the part of Mr. Wheeler, so far as the papers disclose, is an application to the Special Term in Kings county, for an order, which was granted on the 4th day of October, 1869, whereby it was referred to John P. Rolfe, Esq., to take proof of the nature, extent and value of Mr. Wheeler’s professional services, the nature and extent of his lien upon the judgment for such services and for the expenses and disbursements incurred by him, and what he has become liable to pay to associate counsel, employed by him at the request of the plaintiff, to the end that, upon the coming in and filing of said report, the defendants shall pay the amount reported due, with costs of the motion and the expense of the reference, and the order expressly reserved the question whether Wheeler had any lien at all. It does not appear that any further proceedings were had in the matter until January, 1875, .when an order was made by the Special Term, on a motion in behalf of Mr. Wheeler, that Mr. Greenwood be substituted as the referee in place of Mr. Rolfe. It would seem, though the fact does not very distinctly appear, that Mr. Wheeler at some time received the amount reported by Mr. Reynolds.

On the 3d of April, 1875, Mr. Greenwood reported to the court that he had taken proof, etc., as directed by the order of refer-; ence, and reports the same, but without reporting any amount, due to Mr. Wheeler, or the nature and extent of his alleged lien.

The order appealed from, made at Special Term May 7, 1875, orders that Mr. Wheeler have leave to enforce his lien for $419.70, with certain costs and expenses, amounting, in all, to $479.30, and vacating and setting aside the satisfaction of the judgment, and giving Wheeler the power to issue execution on' the judgment against the defendant for $479.30, with interest from the date of the order. There appears to have been the most extraordinary delay and laches on the part of Mr. Wheeler in prosecuting this-claim for compensation in excess of the taxable costs, in this case. TTis connection with the suit as attorney for the plaintiff ceasedi when, in October, 1862, he gave notice to the assignee that he-should decline acting any further; or at all events, when the

assignee had selected a new attorney, and the court, in December, 1862, ordered the substitution of Mr. Hitchcock. After that it is not claimed that Mr. Wheeler acted as attorney for the plaintiff, or in any manner in connection with the suit, except in the proceedings to ascertain and secure the compensation which might be due to him. If the question of Mr. Wheeler’s compensation beyond the taxable costs was embraced in the order of reference to Mr. Reynolds, it is still pending, so far as the papers show, on the appeal from the order confirming the report of Mr. Reynolds.- If it was not embraced in that reference then it was intended to be embraced in the reference to Mr. Rolfe of the 4th day of October, 1869, more than six years after the last modification of the order of reference to Reynolds; and the order of reference to Rolfe was suffered to remain unexecuted, and without any movement, on the part of Mr. Wheeler, to cause the same to be executed for nearly five years more. The claim of Mr. Wheeler was, primarily, against his client, and his only right to resort to the defendant, is a right to prevent a fraudulent or collusive settlement between the parties, by which he is wronged. The summary proceedings which are adopted by the court in such cases, though they may be based upon wdiat are termed the equitable powers of the court, do not have the effect to change the nature of the claim from a legal to an equitable demand, and thus enlarge the time within which they ought to be enforced. The court will extend its aid to an attorney to prevent his being defrauded, by any collusive action between the parties, out of his reasonable compensation, but he is called upon to invoke the aid of the court with due diligence, and great and unreasonable delay and laches on his part in asserting his rights should be at least as fatal to his claim as to that of any ordinary suitor. The claim of Mr. Wheeler became due and payable when his relation as attorney for the plaintiff ceased to exist. (Mygatt v. Wilcox, 45 N. Y., 306; Adams v. Fort Plain Bank, 23 How., 45; S. C., 36 N. Y., 255.) The proceedings of Mr. Wheeler to enforce his claim do not constitute an action, and are not within the literal operation of the statute of limitations. But in the enforcing of remedies of this character, depending upon the equitable powers of the court, and, ito,a certain extent, upon its discretion, it will in general be governed by the analogy of the statute of limitations, and certainly ought not to encourage the extraordinary laches which has been manifested in this case.

Order appealed from reversed, with costs and disbursements to respondent.

Present — Barnard, P. J., and Taloott, J. Pratt, J., not sitting.

Order reversed, with costs and disbursements.


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    JOHN LEONARD, Appellant, v. THOMAS REYNOLDS and THE CITY OF BROOKLYN, Impleaded, etc., Respondents.

      Mechanic's Men — cannot be enforced against public property of municipal corporations.

    Property held by a municipal corporation for specific public uses, is held in trust for government purposes, and cannot be taken by an individual for the satisfaction of his private claim, under color of general laws, intended to secure the application of the property of a debtor to the satisfaction of the claims of creditors.
    Appeal from an order of the Special Term, sustaining a demurrer to the complaint.

      James Troy, for the appellant.
    . Jno. H. Knaebel and William T. De Witt, for the respondents.
   Talcott, J.:

The plaintiff was a sub-contractor, under Thomas Reynolds, for labor and materials furnished in the erection of a certain “ fire bell tower,” in the city of Brooklyn, for the erection of which the city had contracted with Reynolds. The proceeding is under the mechanics’ lien law. The complaint avers that the tower in question is owned and held and used by the city for public purposes. The complaint seeks to establish and enforce a lien on said bell tower. The city of Brooklyn demurred to the complaint. The demurrer was sustained at the Special Term, and this appeal is from the order sustaining the demurrer.' The property held by a municipality which is a branch of the government, for specific public uses, is held in trust for governmental purposes, and cannot be permitted to be taken by an individual for the satisfaction of his private claim, without interfering with the discharge of the d.uties of the government, and the performance of its public functions. Such interference cannot be permited under color of general laws, intended to secure tlie application of tbe property of a debtor to the satisfaction of the claims of creditors. (Denio, J., in Darlington v. The Mayor, 31 N. Y., 164.) And the precise case of an attempt to subject property held by a city for a specific public use to tbe operation of a mechanics’ lien law, was denied in the case of Brinckerhoff v. The Board of Education, which arose in the New York Common Pleas (37 How. Pr., 499), and the decision was afterward affirmed under the title of Poillon v. The Mayor (47 N. Y., 666).

The order of the Special Term sustaining the demurrer is affirmed.

Present— Barnard, P. J., Talcott and Pratt, JJ.

Order sustaining demurrer affirmed, with costs.