author: Parker, J.

text:
    Melvin Stephens, Resp’t, v. Robert Louis Humphryes et al. Edward H. Potter, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Mobtgage—Foeeclosube.
    A purchaser at foreclosure sale will not he relieved on account of defects in title of which he had notice, and in reference to which he made his hid.
    3. Same—Notice.
    Such purchaser is affected with notice of defects in title which were known to the agent who represented him on the sale
    Appeal by purchaser from an order directing him to complete his purchase.

      McMahon & Handley (Dennis McMahon, of counsel), for app It; Smith & White, for resp't.
   Parker, J.

Pursuant to a judgment of foreclosure and sale granted in this action, the referee therein named offered for sale at public auction what purported to be an undivided three-fourths of the premises described in the judgment. Edward H. Potter, through one Chapman, his agent, was the highest bidder at such sale, and the premises were struck down to hirii at the price of $9,550. He paid to the referee immediately ten per cent, of the purchase money, and signed the terms of sale, thereby agreeing to pay the residue of such purchase money on the 6th day of June, 1893, at which time the referee’s deed was to be delivered. Subsequently the purchaser obtained an extension of time within which to complete his purchase on the ground that time was needed to enable him to secure, if possible, a conveyance, which should have the effect to give a good title to the premises. But his efforts, if any were made, apparently proved unavailing, for on the 6th of July he presented to the referee, in writing, certain objections to taking title. With one exception these objections were without merit, and will not be considered. The decree directed a sale of an undivided three-fourths interest in and to the premises therein described, and the objection made was that the mortgagors at the time of the execution and delivery of the mortgage, which was the subject of the foreclosure suit, did not have such an interest in the premises as the judgment decreed should be sold.

The facts upon which that objection was founded are not controverted, and may be briefly stated as follows: In June, 1883, the executrix of Johnson A. Jones began a suit to foreclose two mortgages made by Robert Humphryes in his lifetime, her testator being the mortgagee. Among the parties defendant in that suit were the widow and three children of Robert Humphryes, all of whom were personally served, and thereafter, and on July 17, 1883, appeared therein by attorney. Before the time to answer had expired, Margaret Maria Graff, one of the three children of the deceased mortgagor, died, but the attorney conducting the foreclosure neglected to bring in her heirs as parties defendant, but proceeded to judgment as if she were still living. The premises were sold pursuant to the judgment of foreclosure and sale October 10, 1883, and the property was struck down- in the names of the widow and children of the mortgagor, Humphryes. Subsequently a petition was filed in the name of the widow and three children, and signed by all of them except Margaret Maria Graff, who was then dead, but which fact was not mentioned in the petition, reciting the sale of October 10th, the purchase of the property by the petitioners, that they were entitled to the entire surplus, and praying an order directing the referee to deliver his' deed to them upon their paying to him the amount due the plaintiff, with costs and interest. Such an order was made, in pursuance of which the referee executed and delived his deed to the petitioners. The grantees in the deed then executed and delivered a mortgage, which this suit was brought to foreclose.

It has evidently been the view of the mortgagee that upon sale by the referee under the first foreclosure the title passed to the persons in whose names the property was struck down, four in all,, but, as Margaret Maria Graff did not — as, being dead, she could not — execute the mortgage, that by it there was mortgaged to him the interest of three of the four parties, and in pursuance of such contention it was adjudged that three-fourths of the estate should be sold. But this was error, as Margaret Maria Graff having died before any report of decision was rendered, the entry of judgment as against her was wholly without authority, (Code Civil Proc. § 755), and her estate in the premises sought to be foreclosed was wholly unaffected by the judgment It is apparent, therefore, that Potter, as the purchaser at the foreclosure sale of May 24, 1893,. could not have obtained a three-fourths interest in the estate. But the contention is that this objection is not available to the purchaser, because he had knowledge of the-facts upon which his objection is founded at the time of the sale. It is a well settled rule that a purchaser at a mortgage foreclosure sale will not be relieved on account of apparent defects in the property, or of defects in the title of which he had notice, and in reference to which he made nis bid. Riggs v. Pursell, 66 N. Y., 193 ; Fryer v. Rockfeller, 63 id., 268. Mr. White, one of the attorneys for the plaintiff, and the referee, each made affidavit that at the sale, and before any bid was made, White, in the presence of the agent of the purchasor, who was standing within two or three feet of him at the time, read in a clear, loud voice the following :

“Supreme Court, New York County.

“Melvin Stephens, Pl’ff, agst Robert L. Humphryes et al,. Resp’ts.

“ Notice to Bidders: You will please take notice that the three-fourths interest of Robert L. Humphryes, Dorothy Humphryes and Mary E. Hall in the premises described are advertised for sale under the decree; that the title to the premises comes through a foreclosure suit in 1883 and 1884, entitled Jones v. Humphryes that it was claimed by the last purchaser on August 9th, 1893 ; that by the death of a party, Margaret M. Graff, pending that, action, that the interest of the said Robert L. Humphryes, Dorothy Humphryes and Mary E. Hall in the premises about to be sold is only two-thirds of the fee, instead of three-fourths. • The objection was overruled by the court, on the ground, among others, that the purchaser had notice. We do not state that the purchaser at this sale will not acquire title to more than two-thirds of the fee, but we believe that he will not, as we make this state ment for the protection of bidders as well as the plaintiff.

May 2Ath, 1893. Smith & White,

Plaintiff's Attorneys, 280 Broadway, N. Y"

It will thus be seen that notice was not only given of the facts which constitute the foundation of the purchaser’s objection, but the opinion was expressed that the purchaser would not acquire title to more than two-thirds of the fee. The purchaser, Potter, states in his affidavit “ that he purchased the three-fourths part of the property in good faith, relying entirely upon the referee’s statements made in his said advertisement.” But Chapman, who attended the sale, made the bid in Potter’s name, paid the percentage of purchase money required from him, and signed his name to the memorandum of sale, was his agent, and notice to him at the time of the sale was notice to his principal. Now Chapman, the agent, with the affidavits of White and the referee before him, asserting the reading of the notice, and Chapman’s close proximity to White at the time it was read, does not deny the reading of the notice, nor that he was stationed two or three feet from White at the time. Neither does he say that he did not hear the notice read, but contents himself with the declaration that he purchased in behalf of “ Potter, relying entirely upon the representations made by the said referee and auctioneer, through their advertisements and said terms of sale, that they were selling and said Potter was purchasing an undivided three-fourths part of said premises.” It is apparent, therefore, that the learned judge at special term was required to determine that Potter purchased with full notice of the facts upon which he founds his objection to a completion of the purchase.

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

All concur.


source: Caselaw Access Project

author: Pabkeb, J.

license: Public Domain

text:
    The People, Resp’t, v. Sarah C. Leland, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)
    1. Former adjudication—Criminal action.
    A judgment in a civil action determining a material question involved in a criminal action, is inadmissible in evidence in the latter action.

      %. Same.
    The fact that a question was put to complainant, on cross-examination, as to whether defendant had brought such action, does not open the door for the introduction in evidence of the judgment therein by the prosecution.
    8. Same—Curing admission.
    Instruction that such judgment does not preclude the jury from determining the question on the evidence, does not cure its admission.
    Appeal by defendant from a judgment of the court of general sessions convicting her of larceny in the second degree.

      Howe & Hummel, for app’lt; Delancey Nicoll, Dist. Att’y {Henry B. B. Stapler, Asst. Dist. Att’y, of counsel), for the People.
   Pabkeb, J.

The defendant was convicted of larceny under § 528 of the Penal Code, which provides that: “A person who with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person, * * having in his possession, custody or control as a bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as a public officer or as a person authorized by agreement or by competent authority to hold or take such possession, custody or control, any money, property, evidence of debt or contract, article of value of any nature or thing in action or possession, appropriates the same to his own use or that of any other person other than the true owner or person entitled to the benefit thereof; steals such property and is guilty of larceny.”

The evidence presented by the people tended to establish that the defendant, while an employe of the complainant, acting under her authorization, and with her money, purchased diamond earrings and a diamond crescent pin,, which she delivered to complainant in 1885 or 1886, who took and retained them continuously in her possession until February 14, 1888. On that day complainant fell on the ice, breaking her thigh. Defendant assisted in undressing her, and took the diamonds from her person, and carried them away. Subsequently complainant spoke to the defendant about them, who said she had them, and had taken them for safe-keeping, in which arrangement the complainant at the time acquiesced. Thereafter defendant had made a pair of imitation diamond earrings, strongly resembling the genuine ones; and when complainant demanded the return of tne jewels defendant sent to her the imitation earrings, promising to return the diamond pin later. This she did not do, but retained it and the genuine diamond earrings in her possession. Defendant’s contention was that she was not an employe of the complainant when the diamonds were purchased, but her partner in the conduct of a real-estate and insurance business, and also in keeping a boarding house, which relation she says existed between them from about December, 1884, until October, 1888; that the diamonds were paid for partly with the partnership funds, partly with her own money, and partly with moneys of complainant; that they were purchased in defendant’s name, the receipts being made out to, and the negotiations as well as the payments solely made by her.

The issue most strongly contested during the three days trial was whether there was a partnership from which was derived in part the money which paid for the diamonds. During the time which elapsed between the alleged theft of the diamonds and the trial of the defendant, now the subject of review, a civil action, instituted by this defendant for the avowed purpose of bringing about a dissolution of the partnership, and for an accounting, 'was tried at a special term, Mr. Justice Barrett presiding, resulting in a judgment adjudging that there never was a partnership between complainant and defendant. This judgment' the prosecuting officer offered in evidence, and, against the defendant’s objection and exception, the court received it. Thus was presented to the jury the opinion and judgment of this learned judge upon the very question which they were invited to pass upon, without their having the benefit of knowing upon what evidence his conclusion was founded. This may not be done in a criminal case. Reg. v. Moreau, 11 Q. B., 1028; Starkie, Ev., 10th ed., § 331; Freem. Judg., 4th ed., § 319a, p. 575.

Indeed, the learned counsel for the people does not contend that it was proper evidence on the part of the people, for the purpose of making out the charge alleged in the indictment, but he attempts to justify its admission in evidence on the ground that the defendant’s counsel opened the door for its introduction by an inquiry of the complainant on cross-examination whether defendant had not instituted such a suit in October, 1888. The promptness with which the prosecuting officer followed up the inquiry of defendant’s counsel by introducing the judgment roll, and questioning complainant touching the result of the suit, quite strongly suggests that he was becoming impatient over the delay of defendant’s counsel in opening the door, and was thus led to accept the first movement in that direction as such an opening. Assuming for the present that the inquiry had for its purpose the strengthening of defendant’s position before the jury in respect to the alleged partnership, its utmost effect was to show that then, as now, defendant claimed the existence of the partnership. So far as the inquiry went, it nowhere suggested or permitted an inference that there had or would result therefrom a determination favorable to the defendant. Evidence that she claimed to be a partner in October, 1888, whether shown by testimony that she then commenced a suit to dissolve the parnership or otherwise, did not justify the people in attempting to introduce, nor furnish any legal basis for the introduction of, a judgment found and opinion expressed by a judge of such well-understood learning and experience that it could not have had other than an almost controlling weight with the jury in passing upon the question which it was defendant’s right to have them decide upon the evidence presented at the trial.

Respondent urges the charge of the court prevented it from doing the defendant harm, but we do not so read it. There was but one way open to the court for the correction of the error at that stage of the trial, and that was by an instruction to the jury that they wholly disregard the decision in the civil action. This it did not do. On the contrary, the effect of the charge was to permit, if not require, them to regard it. The court said: “ There was a previous claim asserted on the part of this defendant that she was the partner of this complainant. The result of that action was that the defendant was beaten therein, but that does not at all preclude you from passing upon the question as to whether or not a partnership existed. You are not, in other words, precluded here by that adjudication.”

But the assumption so far indulged in, that the purpose of the defendant’s counsel was to prove an assertion of the claim of partnership in October, 1888, is not, we think, justified by the record. We quote the questions and answers immediately preceding the proof offered by the people, to show how the suit terminated:

Q. How, let us get the dates of these suits she brought. Mrs. Leland brought a suit for a dissolution of the partnership when—■ in what year ? A. 1888. Q. What month ? A. I think it was October. It was not tried, but I think it was October the action commenced. Q. You have not any doubt about that, have you, that it was in October, 1888? The papers show it? A. Yery little. I think it was October, but I did not look over it. Q. T8 the best of your recollection she brought a suit for a dissolution of the co-partnership in October, 1888. A. Yes, sir. Q. You say the detention of this property, or larceny of this property—I use word of the indictment—took place on the 14th of February, 1888, and you commenced a suit to restrain her from using your name in business, when? A. I cannot tell exactly. Q. Wasn’t it in the month of December, 1888? A. Probably. Q. And when did you have her arrested for this larceny ? A. In February, I think. A. February of what year? A. 1888. No, wait a moment, in March, 1889, a year after. Q. You had her arrested for this larceny a year after ? A. Yes, sir.

The purpose of the questions appears to have been to get before the jury the fact that it was long after the defendant refused to give up the diamonds—which was September, 1888, some months after defendant had in the immediate neighborhood commenced the same business as that' conducted by the complainant, and still longer after defendant commenced a suit against complainant—that she first took the necessary steps towards bringing about a criminal prosecution of the defendant; and it was expected, doubtless, that the jury might infer that this prosecution was instituted either for the purpose of revenge, or to bring about a favorable settlement of the other controversies. But, had the evidence been offered for the purpose of showing that defendant, in October, 1888, asserted claim of partnership, it would not have justified, as we have already observed, the introduction in evidence of the decision subsequently made. The error is of such a substantial character that it calls for a reversal of the judgment and the ordering a new trial. All concur.


author: Tbuak, J.

text:
    Sabina Rosenberg, Pl’ff, v. Samuel C. Boehm et al., Def’ts.

      (Supreme Court, Special Term, New York County,

      Filed June 26, 1893.)

    Judgment—Offer.
    Where the indebtedness of the firm is conceded, and the act of the partner served in offering to allow judgment is ratified by the unserved partner, the judgment will not be set aside at the instance of ■ a firm creditor.
    Action by plaintiff to set aside a judgment.

      Ira Leo Bamberger and Franklin Bien, for pl’ff; W. F. Stillings, for def’t Gorman; Felix? E. Levy and B. F. Einstein, for def’t Boehm.
   Tbuak, J.

In Garrison v. Garrison, 67 How. Pr., 271, the defendant, who had been served with a summons, offered to let the plaintiff take judgment against himself and the defendant, who had not been served with summons. This offer was signed by an attorney, who appeared as the attorney for the defendant who had been served. The offer was accepted, and judgment was entered against both defendants. The defendant who had not been served moved to set the judgment aside upon the grounds of irregularity and collusion. In Rich v. Roberts, City Ct. N. Y., 10 N. Y. Supp., 915, the motion to vacate judgment was made by the defendant who had not been served, and who denied any indebtedness. The court said that the judgment was fraudulent. In the case at bar the indebtedness of the defendants is conceded, and the act of one defendant in offering to allow judgment was ratified by the other defendant It was said in Binney v. LeGal, 19 Barb,, 592, that one partner cannot, without the assent of his copartners, make an offer on behalf of himself and his copartners to allow judgment. This is, in effect, saying that with the assent of his copartner he may make such an offer; while in Weed v. Bergstresser, 2 N. Y. Law Bul., 55, it was held that, where copartners are served, an offer to allow judgment is not within the power or authority of one of them unless there is evidence that the other party approved or ratified it. But it was expressly held in Emery v. Emery, 9 How. Pr., 130, that one defendant, a joint debtor, served with process, may, by an offer to allow judgment, bind his co-defendant, not served, as to joint property. See Paton v. Wright, 15 How. Pr., 489. In the case at bar the indebtedness is conceded, and both of the defendants are willing to allow the judgment to stand. I see no reason why it should be set aside at the suit of another creditor of the judgment debtor.

Judgment is ordered for the defendants, with costa


author: Van Brunt, P. J.

text:
    Thomas F. Tobin, as executor of, etc., Mary J. Cocke, Deceased, App’lt, v. Edward C. Kirk et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Conversion—Custodian.
    The negotiations of a draft to an innocent holder for value by a party, in whose custody it was placed to hold and return at a certain time, and the appropriation of the proceeds to his own u*e, amount to a conversion of the draft.
    &. Principal and surety—Subrogation.
    A surety, on payment of his principal’s obligation, becomes subrogated to the rights of the principal in respect thereto.
    Appeal by plaintiff from a judgment sustaining defendant’s demurrer to the complaint.

      A. Walker Otis (T. B. Turley, of counsel), for app’lt; Knevals Perry {J. W. Perry, of counsel), for resp’ts.
   Van Brunt, P. J.

The complaint alleges that in June, 1872, one Thomas H. Cocke and one John S. Hatcher were copartners in business at Memphis, Tenn., under the firm name of J. S. Hatcher & Co.; that in July the Life Association of America agreed to loan to said Cocke $10,000 on a note for that sum made by him and his testatrix was compelled to pay as surety, but be has refused to pay the same. And judgment was thereupon demanded declaring that said life association had a right of action against the defendants Kirk and Tobey for the amount so paid, and that the plaintiff, as executor of said Mary J. Cocke, is entitled to be substituted and subrogated to such rights and remedies; and that the defendants Kirk and Tobey account for the money received by them to the extent that the plaintiff, as executor of Mary J. Cocke, has been compelled to pay by reason of the suretyship of his testatrix as aforesaid, with interest and expenses. To this complaint the defendants demurred, upon the ground that it did not state any cause of action.

There is no doubt upon this state of facts that the action of Tobey and Kirk in disposing, of this draft was a conversion of the same, and they became liable for the damages arising from such conversion. The result of this transaction is that they have stolen the money realized upon the draft in question, and appropriated it to their own use, without the slightest right of authority. Whatever may be-said in regard to the forms which were used to attain the end, it is clear that the whole intention of this transaction was to place it upon such a footing that the association, on the 15th of October, 1872, could be compelled to pay to Thomas H. Cocke the sum which they had agreed to loan him upon his and his wife’s note, taking as security therefor a mortgage upon the real estate of plaintiff’s testatrix. Now, by the illegal and fraudulent acts of Tobey and Kirk, the Life Association of America has been compelled to pay this money to other persons. They have not kept their contract with Cocke, and paid him the money which they agreed to pay him, and the object and inducement which caused the wife of Cocke to become his surety has been entirely defeated; and yet the respondents claim' that there is no remedy for such a wrong. It seems only necessary to state the proposition in order that the answer may come that thieves have no title to stolen property. The plaintiff’s testatrix has been compelled to pay out of her estate the amount of this mortgage, without a dollar of consideration ever having been received in violation of their agreement, and converted to their own use. It seems to be apparent that her estate is entitled to be reimbursed, and that the party who is immediately injured, no matter how many intervening rights might have been called into play to enforce this result. By reason of the fraudulent action of the defendants, the consideration to the plaintiff’s testatrix for the mortgage which she gave to the life association entirely failed, and yet she has been compelled to pay the mortgage. We say “ entirely failed,” because it appears upon the face of the complaint that the consideration for the execution of that mortgage was a loan to be made by the life association to her husband, evidenced by the draft which the life association has been compelled to pay to an innocent holder; and, although the wife’s estate has been compelled to pay the mortgage, the hus: band has received nothing, and the defendants, without a shadow of right, now hold, use, and enjoy the money, the payment of which this mortgage was given to secure. The plaintiff’s testatrix was a surety in this transaction, and whatever rights the life association or her husband might have had to recover the proceeds of the draft in question from the defendants, upon the payment of the mortgage she became in law subrogated thereto. It is too familiar a principle to require the citation of authorities that a surety, upon the payment of the principal’s obligation, becomes subrogated to all the rights of the principal in respect thereto. We think, therefore, that the demurrer • should have been overruled, and that the judgment must be reversed, with costs of the appeal and of the court below, the defendants to have leave to answer upon payment of such costs within twenty days from the entry and notice of the order upon this decision.

All concur.


author: Eollett, J.

text:
    David E. Austin, as Receiver of Taxes, Resp’t, v. Hudson River Telephone Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Corporations—Taxes.
    When a statute, under which a domestic corporation is organized, does not fix its residence, or require that its place of business or of its principal office shall be stated in its articles of association, its residence or domicil is deemed to be where its principal place of business is situated.
    Proceedings were instituted by the receiver of taxes to enforce the payment of the tax imposed upon the defendant. An order was granted imposing a fine upon the company for nonpayment of such tax, and from this order the company appealed.

      John H. Cahill (Henry C. Atwater, of counsel), for app’lt; John Or. U. Meyers, for resp’t.
   Eollett, J.

Between the first Monday of September and the second Monday of the following January, the deputy tax commissioners are required to list, in the city of Hew York, real and personal property for taxation. Consol. Act, § 814. Only persons and corporations who are residents of the city on the second Monday of January in any given year are liable to be assessed on their personalty for that calendar year. Sisters of St. Francis v. Mayor, etc., 51 Hun, 353; 20 St. Rep., 925; affirmed 112 N. Y., 677; 20 St. Rep., 982 ; In re Babcock, 115 N. Y., 450 ; 26 S. Rep., 382. “ All the personal estate of every incorporated company liable to taxation on its capital shall be assessed in the town or ward where the principal office, or place for transacting the financial concerns of the company, shall be ; or if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on.” 1 Rev. Stat., p. 389, § 6. The sole question is, was the corporation a resident of the city of Hew York on the second Monday of January, 1891? The record does not show whether it had been taxed in previous years at Albany or Hew York, and no presumption arises under § 2, chap. 392, Laws 1883, that it resided in either city in 1891. It is insisted in behalf of the city that the statement in the articles of incorporation that “ the principal office of the association shall be in the city of Hew York, state of Hew York,” fixed the residence of the corporation in that city, and that its residence had not been changed prior to the second Monday of January, 1891. When a statute under which a corporation is organized requires that it be stated in the articles of incorporation in what place the principal office for the management of its affairs is to be situated, and the location of its principal office is stated in the articles, the statement is conclusive evidence of the residence of the corporation for the purposes of taxation under the section of the Revised Statutes before quoted. Transportation Co. v. Schen, 19 N. Y., 408; Starch Factory v. Dolloway, 21 id., 449; Miner v. Village of Fredonia, 27 id., 155; Metcalf v. Messenger, 46 Barb., 325; Manufacturing Co. v. Coleman, 44 Hun, 545; 9 St. Rep., 360; Union Steambeat Co. v. City of Buffalo, 82 N. Y., 351. The statute (chap. 265, Laws 1848, repealed by chap. 566, Laws 1890) under which the appellant was incorporated does not require that it shall be stated in the articles of incorporation where the principal office of a corporation organized under that act shall be kept located, nor does it contain any provision on this subject Because the statute does not require the location of the principal office of the corporation to be stated, it is urged in behalf of the appellant that the statement in its articles that its principal office shall be in the city of New York is surplusage, and that the decisions before cited do not control this case, and our attention is called to the following extract from the opinion in the case last cited: “ The general statute prescribing where corporations are to be taxed was framed to meet two classes of cases: First, those which had a principal office, fixed by their certificate, in accordance with the mandate of their charter, or the general law under which they were organized; and, second, those which had no such principal office fixed by their certificate of incorporation, because their charter did not require it. The former was to be taxed in the locality of their principal office; the latter in the 1 place for transacting the financial concerns of the company.’ Thus all possibility of mistake or oversight was prevented. If the company had a principal office, fixed by its certificate, that, and that only, was its residence for purposes of taxation. If it had no principal office so located by its certificate, then it was to be taxed where its financial concerns were transacted.”

This corporation belongs to the second class mentioned in this quotation. If the statement in the article is binding on the corporation, it is also binding on the taxing officers. The location of its principal office not having been fixed pursuant to any statute, it does not seem to us that the statement is binding on the taxing officers of other towns or cities, and that the appellant is taxable “where the operations of such company shall be carried on.” We do not think that a corporation without statutory authority can, by a statement in its articles that its principal office shall be kept in some remote town, escape taxation in the town or ward where its business is carried on. In this connection the language used by Judge Denio in Starch Factory v. Dolloway, 24 N. Y., 454, seems quite pertinent:

“The Western Transportation Company, respecting which a question lately came before us, as to the place where it was to be taxed, was formed under a general act which provided for the incorporation of navigation companies. That species of business could not generally be carried on in a single local jurisdiction, and hence such a company could not be located in any city or town in the manner adopted in respect to manufacturing corporations by requiring its certificate to state the place where its operations should be carried on. If no statement of any locality had been required, the provisions of the revised statutes would have applied to the case, and the assessors would have been obliged to inquire where, in point of fact, its principal financial office had been established.”

Had the sentence contained in Judge Denio’s opinion, which we have italicized, been necessary for the decision of that case, it would be decisive of the one at bar, and the same may be said of the language quoted from the eighty-second of New York. While these decisions are not decisive of the question now presented, yet they are persuasive, and our views accord with those expressed in the two judgments last referred to.

When a statute under which a domestic corporation is organized does not fix its residence, or require that its place of business or of its principal office shall be stated in its articles of association, its residence or domicile is deemed to be where its principal place of business is situated, (Conroe v. Insurance Co., 10 How. Pr., 403; Hubbard v. Insurance Co., 11 id., 149 ; Thorn v. Railroad Co., 26 N. J. Law, 121; Ang. & A. Corp., § 107; Boone Corp., § 33; Dicey, Dom. 7, 110;) and when the residence of such a corporation is not fixed pursuant to statute it may change its principal office or place of business from where it was first established to any place within the state wherein it is actually engaged in carrying on its business pursuant to authority conferred by its charter or by its articles of association. There is no statute in this state forbidding a corporation authorized to carry on its business in several counties from removing its office or place of business from where it was first established to some other county in which it is authorized to transact business, unless the place where its principal office is to be kept is required to be stated in its articles of incorporation; and in some cases corporations which are required to fix their principal business office in their articles may remove their office to other places. In case a business corporation is organized under chapter 567, Laws 1890, the location of its principal place of business must be stated in its articles; but it is provided by the ninth section of the act that such a corporation may change its principal office with the consent of its stockholders owning two-thirds of the capital stock. We think, the evidence being uncontradicted, that this corporation had removed its offices from the city of New York, and had ceased to transact any business therein prior to the second Monday of January, 1891, that it was not a resident of that city, and not taxable therein.

The order should be reversed, and the application denied, with costs.

Van Brunt, P. J., and Parker, X, concur.


author: Yan Brunt, P. J.

text:
    In the Matter of the Estate of Sarah Lawrence Hazard, Deceased.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Judgments—Priority of lien.
    Though several judgments were docketed at different dates, their liens attach to the after acquired property of the debtor simultaneously on the-date of acquisition.
    Application by the American Surety Company of New York for distribution to a number of claimants of the surplus money arising from the foreclosure of mortgages on real estate of Sarah Lawrence Hazard, deceased. The petitioner appeals from- the decree entered on this application.

      John J. Crawford, for app’lt; Lockwood & Mill, for resp’t John E. Caswell; John D. Taylor, for resp’t Le Grand S. Cholwell; Norwood & Coggeshall, for resp’ts Sylvester Y. L’Hommedieu and Eeginald A Lawrence.
   Yan Brunt, P. J.

We might affirm the decree appealed from upon the opinion of Surrogate Eansom in the court below, were it not for the fact that in such opinion he seems to lay too much stress upon adjudications in other states. Such adjudications can throw very little, if .any, light upon the construction of our statutes, as there is almost always some variation in language which may very well change the rule of interpretation. When we consider the language of our statute, we fail to see where there is any provision for, or any evidence of an intention to provide for, a priority of liens of judgments upon after-acquired property. Judgments are a lien upon property, because of the provisions of the statute, and, unless there is, some provision granting priority, none can exist. The provisions of our statute regulating liens of judgments are those contained in §§ 1250 and 1251 of the Code of Civil Procedure. Section 1250 provides that:

“ A judgment required to be docketed, as prescribed in this article, neither affects real property or chattels real, nor is entitled to a preference, until the judgment roll is filed, and the judgment docketed.”

And § 1251 provides that:

“Except as otherwise specially prescribed by law, a judgment hereafter rendered, which is docketed in a county clerk’s office, as prescribed in this article, binds, and is a charge upon, for ten years after filing the judgment roll, and no longer, the real property and chattels real in that county, which the judgment debtor has at the time of so docketing it, or which he acquires at any time afterwards, and within the ten years. ”

Now it is urged upon the part of the appellant that there is no distinction made by the statute between property held at the time and after-acquired property; and that as no different rule is prescribed as to the duration of the lien between property owned at the time of the docketing of the judgment and after-acquired property, such lien being for ten years after the filing of the judgment roll, etc., these words apply to both classes of property; and, if the lien commences in the one case from the time of the filing of the judgment roll, it commences from that time In the other as well. And it is urged that, there being an express declaration that the lien is to continue for ten years, it commences at the time of the filing of the judgment roll and docketing of the judgment in respect to after-acquired property, as well as to that owned at the time. That this construction cannot prevail seems to be manifest when we consider the wording of the statute. The words of the statute are “ binds, and is a charge upon; ” that is, upon filing the judgment roll and docketing the judgment, such judgment at once binds, and is a charge upon, the debtor’s real estate. But it cannot at once bind and be a charge upon what he does not own, and the binding and charging can only take place when the debtor acquires the property; and then the binding and charging of all the judgments must occur simultaneously, because it is the one act of acqusition which then enables the judgments to bind and charge, and not the several acts of filing the judgment rolls and docketing the judgments. It is difficult to see how it is possible for a lien to attach to a thing which does not exist The lien of a judgment attaches to the ownership of the property. As ordinarily expressed, however, it is stated that the judgment binds the property ; but it is clear that it is intended in all such expressions to hold that it is a lien upon the ownership of the property, and that is all The codifiers, in their zeal, by changing the languange, to add confusion to conditions which were plain before, have seen fit to change the language of the Revised Statutes without any avowed intention of making any change in its provisions. In this respect it seems to us that they have infused uncertainty where it did not exist before, as they have frequently succeeded in doing in other instances. The provisions of the Revised Statutes (volume 2, p. 359, § 3) are as follows: “All judgments hereafter rendered in any court of record shall bind, and be a charge upon, the lands, tenements, real estate and chattels real of every person against whom any such judgment shall be rendered which such person may own at the time of docketing such judgment, or which such person shall acquire at any time thereafter, and such real estate and chattels real shall be subject to be sold upon execution to be issued upon such judgment. ’’

Here the language is, “ shall bind, and be a charge upon, lands,” etc., “ which such person may have at the time of docketing such judgment, of which such person shall acquire at any time thereafter ; ” the language indicating futurity in the attaching of the lien, “ shall bind the lands,” etc., “which such person shall acquire at any time thereafter.” Bind when? Clearly when acquired, and not before. The next section (§ 4) provides that, from and after ten years from the time of docketing such judgment, it shall cease to bind, or be a charge upon, any such property, clearly showing that there was no intention or idea that a lien could exist against after-acquired property for any period of ten years, as is claimed from the present provisions of the Code. It seems to us that the whole idea pervading the provisions of the Code-under1 sansideration is that these judgments go into operation- as- against any property which the judgment debtor may hold an acquire-daring ten years from the filing of the judgment-roll, bat until- title is acquired it seems to be clear that no lien can attach. As»already -suggested, it is the acquisition of the title which- enables the-lien -to attach; and the liens of all prior judgments necessarily attach ■at one time, and there can be no priority between them... The -decree should be affirmed, with one bill of costs; to-the- rsspand•ents. All concur.


author: Follett, J.

text:
    Richard Fitzpatrick, v. William D. Tweddle, as Executor of, etc., Thomas B. Tweddle, Deceased.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Negligence—Cokteibutort.
    Where in an action against a dock owner to recover Sor the- value of a horse, harness and cart, alleged to have been lost by reason of. the improper condition of the dock, the condition of the dock and! the danger were obvious, and known to the plaintiff or Ms servant, and the accident was caused by the latter’s miscalculation, his negligence contributes, to the injury.
    •An action was brought to recover damages for the- Ibss of; certain property caused by defendant’s negligence. Upon & judgment dismissing the complaint, the plaintiff moved for a. new trial on a case containing exceptions ordered to be; heard atr general term in the first instance.

      Michael J. Scanlan, for pl’ff; Guggenheimer &■ Untermyav (.Maurice Uniermyer, of counsel), for def’t
   Follett, J.

This action is for the recovery of damages for -the loss of personal property caused, it is alleged, by the- negligence of the defendant On the 10th of December,. 1891-, and for five years previous thereto, the defendant was the owner, as trustee, and in possession, of a dock on the north- side of Bast Forty-eight street, which had a frontage of 100 feet on Bast river, .and extended westerly from the river 188 feet A string piece from eight to ten inches square was fastened along the east edge ■of the dock, to prevent carts from being backed into the river. Campbell & Co. were dealers in broken stone and sand, having a place of business on the south side of Forty-eight street, and 100 feet west of the river. Before the accident, Campbell & Co. had used the dock for the purpose of unloading their material from boats Iving by it. Refuse material had been permitted to accumulate on"the dock covering a space of about sixteen feet in width, and to such an extent that the upper surface of the string piece was but about two inches above the surface of the material which lay against the stringer. This accumulation was at the place where the material of Campbell & Co. was discharged from boats to the carts, for removal to their yard. A derrick for hoisting material from the boats to the carts stood néar the place where the material had accumulated, and the part of the dock^ which was not incumbered by refuse material was not as convenient for the ¡purposes of Campbell & Co., but it might have been used by •them. On the 10th of December, 1891, the plaintiff, through his employes, was engaged with two carts in taking the material from a boat to the yard of Campbell & Co., which work was begun on the day previous. The empty carts were driven on the -dock, and then backed down to its edge, for the purpose of reeeivthe material from the derrick. On this stringer there was a cleat, two feet and four inches long, and about five inches high, which was used for the purpose of fastening vessels to the dock.

At the time of the accident, the driver of one of the plaintiff's-carts backed down towards the edge of the dock, intending that one of the wheels of the cart should strike against the cleat, and so check its motion; hut, by a miscalculation of the driver, the wheel did not strike squarely against the cleat, but passed by one end of it, and the horse, cart and harness went into the river and were lost. The only negligence complained of is that the defendant permitted the refuse material to accumulate against the string piece, so that it did not present a sufficient barrier for the carts. The accident occurred about two o’clock in the afternoon. The driver had been engaged daring all of that day and the day before in unloading the boat. It was testified that the situation of the dock was apparent and the danger obvious. Instead of expending a little labor in removing this refuse material to one side, so as to have uncovered the stringer, which would have presented a sufficient barrrier, the plaintiff’s employes preferred to use the dock in its then condition. At the close of the plaintiff’s evidence, the complaint was dismissed, on the ground that the negligence of the plaintiff’s driver contributed to the accident. This is plainly so. He took the chances of using the dock in the condition in which he found it, and made a miscalculation, by which the plaintiff’s property was lost.

The judgment should be affirmed, with costs.

Yah Brunt, P„ J., and Parker, J., concur.


author: Patterson, J.

text:
    John King McLanahan, App’lt, v. Jordan L. Mott et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Lotteries—Bonds.
    Where a corporation, in order to make an inducement for people to buy its bonds, holds out large prizes to be drawn by chance or determined by lot, and the purpose of the scheme is, not only to determine by lot when the bonds are to he paid, but also to determine certain extraordinary chances to the holders of the fortunate numbers drawn, 16 is a lottery.
    2. Corporations—Powers.
    A corporation, chartered by congress to do business in Hew York, is not; authorized to engage in a lottery.
    Appeal by plaintiff from a judgment of a demurrer to the complaint in an action for an injunction.

      Root & Clarhe (Burton N. Harrison, of counsel), for app’lt/ Turner, MeGlure & Rolston {David McClure, of counsel), for resp’ts.
   Patterson, J.

The appeal in this case is from a judgment directed at special term, sustaining a demurrer, and dismissing the complaint to which it was interposed. The plaintiff is a stockholder in the North River Bridge Company, a corporation organized and existing under an act of the congress of the United States (chapter 669, Acts 1890; 26Stat. 268), and authorized by its charter to construct a bridge and its approaches over the Hudson river, from New York city to New Jersey, and to issue bonds, and secure the same by mortgage on its property, rights and franchise. It is alleged in the complaint that the corporation, assuming to act under the authority conferred upon it by the congress, “ intends and threatens, and is about to issue its bonds, secured by a trust deed, to the amount, not exceeding in the aggregate, one hundred million dollars ; the principal to become due on the 1st day of July, A. D. 2343, and to bear interest at the rate of six per centum per annum, of which two per centum shall be payable on the first day of January, and two per centum on the first day of July, in each year, and the remaining two per centum shall be payable with the principal on July 1st, A. D. 2343 ; the payment of the principal and interest of said bonds to be secured by a first mortgage or deed of trust upon said company’s bridges, approaches, terminals, appurtenances, and works connected therewith, and on said company's property and rights of property, of all kinds and descriptions, now held or that may hereafter be acquired, and upon its franchise to be a corporation, and said bonds to be gradually liquidated, and to that end to be gradually paid off and redeemed on interest days at their maturity value, according to the numbers called in and designated by the trustee, at least one month before each interest day; said bonds to be registered, and in denominations of one hundred dollars, and to be numbered from one to one million, inclusive,” etc.

The general outline of a plan for raising money by putting out a loan being thus stated, the pleader proceeds to set forth certain of its details, and that the corporation, by resolution, adopted the form of a bond which was also approved by a majority of the stockholders of the company; but that the company or its directors have modified the form of the bond as proposed" and adopted, and, instead thereof, propose and threaten to issue a bond containing the following provisions, viz.: “ That this bond is subject to be redeemed before maturity, at its maturity value, in accordance with the provisions of the said mortgage or deed of trust." It is then alleged in the complaint that the clause of the mortgage referred to respecting the redemption of bonds is as follows, viz.: . “Third. A sinking fund shall be created and maintained for the gradual payment or redemption of the bonds hereby secured. It shall consist of, and be maintained by, a payment by the said company to the said trustee, before each interest day, of $400,000, together with an additional sum of money, equal to the semi-annual interest at two per centum on the total number of bonds previously redeemed and canceled, as herein provided; and the said trustee shall, at least one month prior to each interest day, designate by lot as many bonds for redemption at their maturity value as the moneys in said sinking fund on such interest day will suffice to pay, and said bonds, so designated, shall on such interest day be redeemed and paid at their maturity value,” etc. It is further stated in the complaint that the directors and stockholders of the corporation have declared a certain meaning to be attached to the words “at their maturity value,” used in the clause of the mortgage quoted, which meaning is that, for each bond of $100 designated by lot for redemption prior to maturity, there shall be paid the sum of $1,000 ; such fixed maturity value being arrived at by adding to the principal of $100 the items of annual interest at two per cent, from July 1, 1898, for 450 years. It is also averred that the said directors, etc., of the company, *“ Intend and threaten, if it should be necessary or expedient to facilitate the floating of said bonds, to make a supplemental agreement that such as has been stated is the meaning of the words maturity value in the instrument above mentioned; that the plaintiff has remonstrated in vain against this scheme as unlawful, and he insists that it is contrary to public policy, an abuse of the corporate powers of the defendant company, and contrary to the statutes of the state of Hew York, in this, among other things ; that it is in violation of the statutes prohibiting lotteries and lottery schemes.” The relief prayed for is a perpetual injunction, restraining the execution of any deed of trust containing the provision referred to respecting the redemption of bonds “ at their maturity value.”

The right of the plaintiff to maintain this action is not challenged. The demurrer proceeds on the ground only that the complaint does not state facts sufficient to constitute a cause of action, and, on the argument, the whole subject of the legality of the scheme devised by the corporation for raising money has been brought up for judicial consideration. The general inquiry is, does the scheme adopted come under the condemnation of any statute, principle of law, or well-grounded dictate of public policy ? It does not require much analyzing to ascertain that the plan objected to by the plaintiff is one which seeks to unite in a very ingenious manner investment with what is wonderfully like gambling, if it is not gambling pure and simple. There is nothing unlawful in the long term the bonds have to run, although they would be practically irredeemable if all were not to mature until after the expiration of 450 years. But it is perfectly obvious that the redemption feature is the real and only attraction ■connected with the scheme, and that the inducement offered to purchase the bonds is the chance of holding lucky numbers, and receiving, on a determination to be made by lot, $1,000 for $100, possibly in six months or a year, or in one of the earlier semi-an•nual drawings to be made by the mortgage trustee; or, in other words, that the holder of one bond may by mere chance get in six months what would not be realized on another in 450 years. That this scheme is a lottery—that to the mere decision of chance is to be left what bonds shall be retired at the enormous increase contemplated—is as plain as if the loudest proclamation were made of it. It is not at all likely that the whole or any considerable part of an issue of one hundred millions of dollars of bonds, in the denomination of $100 each, bearing interest at four or at. six per cent., and having nearly five centuries to run, and with no other property or security behind it at the date of issue than a-mere mortgage on a franchise, would be marketable without, some special inducement to purchasers; and that has been provided here.

The redemption feature, which holds out the hope to the purchaser of speedily obtaining tenfold for his outlay, and, as it were, by the turn of a wheel or the casting of lots, is the real attraction. It defines the whole plan, stamping it with the character of a lottery, all the real qualities of which it possesses. The element of selecting bonds for redemption is not of itself an objectionable-feature. It is the chance of winning at an early drawing ten times the face value of a bond that constitutes illegality, if there-is any illegality in the scheme. There are various definitions of the word “ lottery ” given i n the books, no one of which includes-each and every known or conceivable scheme that properly may be designated by the term. It would serve no useful purpose to refer to them here. Let it suffice that we are satisfied that the-scheme of redemption of the bonds, adopted by this corporation-constitutes a “ lottery,” in the popular as well as in the technical sense of the term, and that it is apparent that on that feature reliance is placed for finding a market for the bonds.

There is no rigid rule of law independent of legislation, nor do-we know of any requirement of a universal public policy, which absolutely condemns the. plan of this particular corporation for-raising money by the sale of bonds secured by mortgage, although that plan does involve a feature of redemption at enormous increase by chance. Lotteries were once not only tolerated, but were authorized and regulated by law, in many countries and in states of this Union, and they exist and have recognition in at least two of such states to-day. They have been used in times past by civil governments, by ecclesiastical authorities, by academic and charitable institutions, to raise money for many of the most laudable and beneficent objects known among men. But the evils arising from the vice of gambling, of which they are a species, have induced most states to place them under the ban of the law, and to attach heavy penalties to the violation of statutes interdicting them. Such laws exist in the state of New York, and there are on the statute-books of the United States enactments directly affecting the subject. We think the legality of the scheme under consideration must'be determined by legislation affecting it, and the question therefore arises, what law is applicable, that of the state of New York or of the United States? It is earnestly urged in argument that the legality of the device under consideration must be determined by the law of the state of New York, and that, as the statutes of the state relative to lotteries have been explained and interpreted by the courts, it is free from any taint of illegality. We suppose that the claimed application of the law of New York is based upon the circumstances that the company is regarded by the plaintiffs as a domestic corporation. Undoubtedly, being created by the congress for the purpose of carrying out an object respecting which it had the exclusive power to legislate, if it were located in the state of New York alone, it would be a domestic corporation. The Code of Civil Procedure declares it to be so. Section 3343, subd. 18. But this corporation is located in two' states, and therefore, possibly, it may not come under the designation of a domestic corporation.

We do not decide that point, but, even if it were a domestic corporation, it does not follow therefrom that it possesses the same powers that corporations of a like kind chartered or organized by state authority have, or that it is to be regulated or controlled by the laws applicable to them. It derives its powers and faculties from the sovereign creating it, and from no other source, and is bound by whatever limitations, and is subject to whatever disabilities, grow out of the laws of that sovereign. Indeed, it is a familiar precept that every rule of law of the sovereign creating a corporation, and affecting the corporate rights and acts and business, is just as much a part of its being as if written in its charter; hence, in this case, there being legislation of the congress which, by necessary relation, applies to this scheme, we do not consider it would be either desirable or profitable to trace the history of or critically examine the adjudications relating to lotteries in this state. The validity of the provisions of the proposed mortgage is not to be tested by our law, but by the effect to be given to a certain statute of the United States, and by that statute this scheme must be pronounced unlawful.

By § 3894, Bev. St. U. S., it is made a misdemeanor, punishable with fine and imprisonment, for any person to use the mails for the purpose of sending by them a lottery ticket, or of circulating any newspaper, pamphlet, circular, or other publication of any kind containing any advertisement of any lottery or gift, enterprise, or prize scheme depending upon chance; and as this statute has been construed in the case hereafter cited, it is entirely immaterial whether the lottery, etc., is considered elsewhere legal or illegal. This emphatic denunciation of lotteries, it is true, has, taken but the one particular form and direction, but it is, perhaps, the only way in which the congress, with its exclusive power to regulate post offices and the postal service, could effectively and within its competency legislate upon the subject at all. But the necessary result of such an enactment is to bring schemes like that of this corporation under the condemnation of the law. We do not consider it necessary to elaborate the subject. It has been treated at large in the opinion of the court by Mr. Justice Blatchfórd in the Austrian Bond Case. Horner v. U. S., 147 U. S., 449; 13 Sup. Ct. Rep., 409. The language quoted in that case from Judge Blodgett in U. S. v. Zeisler, 30 Fed. Rep., 499, has a singular appropriateness mutatis mutandis, to the case at bar :

“ If these drawings determined only the time when the bonds would be paid, I should say that the mere determining of that time by lot or drawing would not give them the characteristics of a lottery ; but when a city or a government, in order to make an inducement for people to buy their bonds, holds out large' prizes to be drawn by chance or determined by lot in the manner in which prizes are usually determined in even an honestly conducted lottery, it seems to me it comes clearly and distinctly within the inhibiting clause of the statute; * * * and hence it seems to me that the purpose of the scheme was not only to determine by lot when the bonds were to be paid, but. also to determine certain extraordinary chances to the holders of the fortunate numbers drawn. ”

In the present case one of the “ extraordinary chances ” is that of a fortunate holder getting 450 years’ interest, at two per cent, in six months.

The judgment at a special term is ^reversed, and judgment directed overruling the demurrer, and for the relief demanded in the complaint, with costs.

Follett and Parker, JJ., concur.


text:
    Guiseppo Spitalera, an Infant, by Salvatora Spitalera, his guardian ad litem, Resp’t, v. Second Avenue Railroad Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.

    1. Trial—Charge.
    Instruction, which does not present the real issue litigated on the trial, is erroneous.
    2. Same.
    So also is a statement by the trial judge that there is no evidence in support of defendant’s theory, when there is such evidence.
    Appeal by the defendant from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a. new trial made on the minutes.

      Merrill & Rogers (Payson Merrill, of counsel), for app’lt; Kellog, Rose & Smith (Abram J. Rose, of counsel), for app’lt.
   Follett, J.

This action is for the recovery of damages for a personal injury alleged to have been caused by the negligence of the defendant’s employes. The plaintiff is a minor, his age not being disclosed by the record, but, from the age of a playmate who testified on the trial and other circumstances, we infer that he was ten or twelve years of age at the time of the accident, which occurred July 14, 1891. He lived with his parents on the south side of Twelfth street, and east of Second avenue, through which avenue the defendant’s horse railroad extends. The plaintiff testi- ‘ fied that about noon of July 14,1891, he received from his mother five cents with which to pay his car fare to Thirty-second street, where he intended to go to help his uncle. He testified that he and his companion walked from near First avenue along Twelfth street, until they came to Second avenue, which they crossed, and stood on the west sidewalk, and that, when an up-town car on defendant’s line came along, he got onto it; that the conductor ordered him off, and the plaintiff replied, “ I have five cents to pay my fare. Stop, I give you five cents,” and showed him the money. The conductor answered, “ Ho,” pushed him off, and he fell under a down-town car, the forward wheel of which passed over his right foot, so injuring it that amputation of a part of it was necessary. A lad twelve years of age at the date of the trial (April 3, 1893), who was with the plaintiff, testified to substantially the same state of facts, though he did not seem to be quite certain whether the plaintiff crossed to the west side of Second avenue, or stood between the up and down tracks of the road. James Healy, a witness called by the plaintiff, testified that he was riding on the down-town car, and sat on the east end of the second seat from the front one. He said that he heard a scream, and saw the boy come off from the up-town car, and that he fell under the down-town car. Chris Lamont, called for the plaintiff, testified that the boy got onto the up-town car, but that he did not see him fall. He saw him after the accident, this is substantially all of the evidence descriptive of the accident given in behalf of the plaintiff. Hussbaum, the conductor of the down-town car, testified that he heard a scream, saw the boy fall in the street, and his car ran over him, at which time the horses attached to both cars stood face to face, the up-town car not having reached the point where the boy fell. Fay, a passenger on the down-town car, testified to about the same state of facts. Annie Walsch, a witness called by the defendant, testified that she was riding on the down-town car, and that she saw the boys crossing Second avenue, one of whom was knocked down by the horses of the down-town car, and was run over. Marcuse, the conductor of the up-town car, called by the defendant, testified that the accident occurred before his car reached the place where the boy fell, and that when the cars were stopped, the horses stood face to face. He also testified that the boy was not on his car, and did not tender him five cents. Martin, the driver of the up-town car, testified that, before his car reached the place of the accident, the boy had been run over by the down-town car, and that he drove along and stopped his horses near to those drawing the down-town car. This is all of the evidence given by the defendant descriptive of the accident. The issue of fact tendered by the plaintiff was that he boarded the up-town car, tendered his fare, and was wrongfully put off by the conductor. This the defendant denied, and it was asserted in its behalf that the boy did not enter upon either car, but ran in front of the horses of the down-town car, and was knocked down by them. The learned trial judge, in submitting the case to the jury said: “ On the part of the defendant, you have this state of facts presented to you: That this boy was a trespasser on the car; that he was not there for the purpose of getting a ride by paying for it, but that he was there simply for the purpose of stealing it; and that, when that was notified to him, he got off as best he could, and, when he did that, it so happened that he fell under this other car, and was injured by reason of that circumstance. Of course, if he was a trespasser on the car, and if he merely got off by a notification on the part of the conductor, the railroad company would not be responsible; but even if he were a trespasser, and if he were in a dangerous position, and the conductor of the car threw him off in the way in which this boy testifies, under another car, the railroad company would be responsible, because the conductor would not. have any right to eject any person, even a trespasser on the car, from a position of that kind, so as to put him in peril of his life or of his; limb.”

To this instruction the defendant excepted. This instruction did not present the real issué litigated on the trial. The defendant’s witnesses denied that the plaintiff entered upon either car., Its theory of the accident was that the plaintiff, in attempting to cross the street in front of the down town car, was knocked down by the horses. The defendant asked the court to charge:

“ That if they (the jury) find that the boy was not upon either of the cars, but was running across the street, and ran into the horses attached to the down town car, or into the car, they must find a verdict for the defendant.”

The court replied:

“I refuse so to charge. There is no evidence before the jury that would show that he was not on one car or the other.”

This was the final instruction given to the jury, and it was clearly a misdirection. The whole theory of the defendant’s case was that the boy was not on either car, but was knocked down by the horses, and they gave evidence in support of that theory. The statement by the trial judge that there was no such evidence was well calculated to prejudice the defendant’s case. For this error the judgment and the order must be reversed, and a new trial granted, with costs to abide the event.

Van Brunt, P. J., and Parker, J., concur.


author:
Van Brunt, P. J.
      O’Brien, J. (concurring).

text:
    Joseph A. Young, Resp’t, v. Elbert A. Fowler, App’lt.

      Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Summons—Publication.
    An affidavit for an order of publication, which merely alleges that, upon a summons, verified complaint and affidavit, plaintiff obtained a warrant of attachment against defendant on the ground of non-residence, without any averment as to such non-residence, and without showing that there was sufficient proof in such papers as to non-residence, is insufficient.
    2. Same.
    An additional allegation that the defendant is of full age, and cannot be found, with due diligence, within this state, and that the plaintiff would be unable, with due diligence, to make personal summons upon defendant within this state, does not render such affidavit sufficient.
    Appeal by defendant from an order denying a motion to vacate an attachment.
    I. K Miller, for app’lt; B. Scharp, for resp’t.
   Van Brunt, P. J.

The attachment in this, action having been granted in September, 1889, on the 29th of August, 1898, a motion was made to vacate the same, upon the ground that the defendant had never been served in the action and the court had never obtained jurisdiction of the defendant, and upon other grounds, which it is not necessary to mention here. This motion having been denied, from the order thereupon entered this appeal is taken.

It is claimed that the court never acquired jurisdiction, because there were but six publications of the summons, whereas, under the Code as it now exists, seven publications are necessary in order to make complete service ; and, further, because the affidavit on which the order of publication was granted was insufficient. In respect to the first ground, the construction claimed by the defendant might very well be adopted; but, in view of the fact that a different practice has prevailed under this provision of the Code for so long a time, this court should not adopt such a construction unless compelled to do so by the imperative language of the statute; and this hardly seems to be the case.

The point that the affidavit upon which the order of publication was granted was insufficient to confer jurisdiction seems to us to be well taken. The order of publication was based upon the supposed fact that the defendant was a nonresident, and that, therefore the plaintiff had the right to publish the summons as against him. But there was no allegation whatever in the affidavit upon which the order of publication was granted that the defendant was a nonresident. The allegation contained in the affidavit is as follows: “Deponent further says that, upon a summons, verified complaint, and affidavit, he obtained, on the 6th day of September, 1889, a warrant of attachment against the above-named defendant Elbert Fowler, on the ground of his being a nonresident of the state of Hew York, to wit, a resident of the state of Hew Jersey, at Passaic, in said state.1’

But it did not appear before the court what the papers were upon which the attachment was granted, or whether there was any sufficient proof in these papers that the defendant was a nonresident ; and, in the affidavit upon which the order of públication was granted, there is a mere recital of something that had taken place in the action, and no averment whatever in regard to the nonresidence of the defendant. This clearly was insufficient to confer any jurisdiction upon the court.

The additional allegation that the defendant is of full age, and cannot be found with due diligence within this state, and that the plaintiff would be unable with due diligence to make personal service of the summons upon said defendant within this state, did not in any manner supply the defect above mentioned, because this was clearly insufficient to warrant publication, unless such absence from the state was with the intent to defraud creditors or to avoid the service of the summons, and there is no pretense in the papers that such was the fact. It would seem, therefore, that there was no proof whatever by affidavit of the existence of facts justifying the making of the order of publication at the time of the granting of such order. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

O’Brien, J. (concurring).

Unreasonable neglect to proceed is a ground for dismissal of an action. Code Civil Pro., § 822. This section is but expressive of the policy of the law that one should not be permitted to sleep on his rights. Here the attachment was issued in 1889, and since that time plaintiff has done nothing towards perfecting his judgment, though for more than four years he could have done so. This shows gross laches, and, as plaintiff should not be allowed to tie up property indefinitely, I think upon-this, as well as upon the ground assigned by the presiding justice, the attachment should be vacated.


text:
    Maria Miller, Resp’t, v. Ft. Lee Park & Steamboat Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Questions fob jury—Negligence.
    In an action for personal injuries alleged to have been caused by negligence, where the evidence is conflicting upon a material point, the question of defendant’s negligence is for the jury.
    3. Appeal—Harmless ^bror.
    The striking out of competent evidence is not ground for reversing the judgment where testimony to the same general effect is subsequently ad■mttted.
    3. Damages—Future suffering.
    The jury may, upon proper and sufficient evidence, compensate a party for such future pain as they might conclude that she would suffer.
    4. Same.
    The evidence, in this case, was held sufficient to warrant a charge to this effect.
    Appeal by defendant from a judgment in favor of plaintiff.

      Taylor & Parker (.Alfred Taylor, of counsel), for app’lt; Charles Steepler (.Alfred Sleekier, of counsel), for resp’t.
   Parker, J.

The judgment under review awards to the plaintiff damages for injuries sustained while the relation of common carrier existed between her and the defendant, by reason of which it was chargeable in law with the duty of taking all reasonable precautions to secure to her free and safe ingress and egress to and from its boat. The defendant maintains a line of steamboats from the foot of Canal street to Ft. Lee, on the New Jersey shore, having intermediate landings at Twenty-second and Thirty-fourth street. On the 28th day of June, plaintiff was a passenger on one of its steamboats called the Pleasant Yalley. When the boat reached the foot of West Thirty-fourth street it was made fast, and a gang plank about thirteen feet long and three feet nine inches wide was used for a passageway between the steamer and a barge, which were separated from each other by about three feet, and from the barge the passengers passed to the dock. The passengers were informed that all who desired to land at this point could do so. In response to .this information, plaintiff, accompanied by her child, whom she had taken by the hand, proceeded with others to cross the gang plank, and when about midway between the steamboat and the barge she fell over, dragging her child with her, resulting in injuries for which the jury have awarded compensation.

The defendant contended upon the trial, as it does upon this appeal, that it was not negligent in failing to provide at this and other intermediate landings a gang plank with a guard rail. Evidence was presented in its behalf explaining why at its terminal landings gang planks with a guard rail were used, while gang planks without were made to answer the same purpose at the intermediate landings. The reason for this difference was stated to be that there was no convenient place on the steamboat where so large a gang plank as it is necessary to have where such guard rails are used could be carried, and, therefore, it was necessary that such gang planks should be left on the docks ; and as the defendant controlled the docks at its terminal landings, it was enabled to make use of them at such landings, and did, but at the intermediate landings it had no such control, and was, therefore, obliged to make use of gang planks without guard or rail. Its further contention was that, in view of the circumstances mentioned, and the additional fact that it had made use of similar gang planks for a period of over twenty years without an accident previous to the one in question, there was no occasion to apprehend that an accident would occur, and unless it could have been reasonably anticipated that injury would result from the use of such a gang plank, there could not be actionable negligence. It is insisted that, applying the rule that a party will not be chargeable with negligence where the accident is of such a nature that the party had no reason to apprehend that it could occur, and the arrangements were of such a character as experience had up to that time shown to be safe and suitable, and sufficient to meet the requirements of his duty, Loftus’ case, 84 N. Y., 455, the defendant’s motion for a nonsuit should have been granted.

It is unnecessary to determine whether this general rule would operate to protect the defendant if plaintiff predicated its liability solely on the use of a gang plank without a guard, for the plaintiff insisted that, as it was dark, the absence of the guard rail made it the special duty of the defendant to provide that the gang plank should be properly lighted, so that the persons in passing off could see where to step, and that it wholly neglected to do so. Plaintiff testified that when she was in the middle of the gang plank it was very dark, and she undertook to catch hold of the guard rail where none was, and fell over. She further said: “ While I was going off of the boat that night, I was not talking to anybody. I did not see the gang plank when I went on it. I just felt. The people were walking off. I did not see any light with the crowd; there'was too much of a crowd. Did not see any light” William Hipperling testified that he took hold of the little boy by the hand when they were going up the gang plank to the barge; that “it was dark at the time; one man with a lantern, but he was back of the crowd. He was not at the place where the passengers were getting off. .He was on the other side of the passengers. * * * There was no guard or rail on the gang plank. There was no light there at the gang plank. The light that the men had back of the passengers was a lantern ; a small one, about a foot high; it did not throw any light out to the gang plank.” Thomas Gr. Kennedy, a police officer, testified that he was present on the dock, as was his duty, to preserve order, and that it was dark at the time the boat landed.

Indeed, the necessity for light is not controverted, defendant’s contention being that it provided necessary and suitable lights on this occasion, so that, if the plaintiff had looked, she would have had no difficulty in seeing where to step. But, while plaintiff’s evidence in regard to .the absence of light was contradicted, a question for a jury was presented, for the story of the plaintiff and her witnesses might be credited, in which event they would be authorized in finding that defendant failed in the discharge of the duty which it owed to its passengers on this occasion. As under the facts proven the question of contributory negligence was one for the jury, the court rightly denied defendant’s motion to dismiss the complaint.

During the trial, a managing director of the defendant testified : “We have never lost a passenger from these planks in carrying a million and one-half of people.” This evidence was stricken out on motion, defendant excepting. This was error, as the defendant had the right to have evidence of this character considered by the jury when determining whether the company had reason to apprehend an accident from the use of a gang plank without guards. But, while the ruling was erroneous, we think it should not lead to a reversal of the judgment, because the wrong was subsequently righted by the admission of evidence having the same general effect, as a brief reference to the record will show. The same witness testified: “ Q. I understand you to say that this same style of gang plank has been in use 'for twenty years ? A. This same style of gang plank has been in use since the boat was built; has been used day and night; we have never lost a passenger from that style of gangplank of a similar type ; we have made a hundred of them, I presume, on that boat, and that is the first case in twenty-two years.” The captain testified : “We have used that same kind of a gang plank on that steamer to my recollection for thirteen years; we have used it ever since I have been there ; it has been used both-day and night, at all times of the year; I never knew of any other passenger falling off.” Henry Hartnétt, who had been in the employ of the company for about twelve years, testified,: “We used the same gang plank that night that we had always before used. * * * Many thousands of passengers passed over that gang plank; no passenger ever fell off during this time before.”

In charging the jury the court said: “You can award her such sum as will compensate her for such suffering and pain as you may conclude she will suffer in the future, resultant directly from the accident” Defendant’s counsel excepted, and made several requests to charge in relation to that subject, which were refused, and exceptions taken ; thus presenting squarely the question whether the evidence authorized the jury to compensate her for ■■such pain as they should determine she would suffer in the future. The accident occurred June 28, 1891, and the action was tried March 10, 1893, or nearly a year and nine months later, at which time plaintiff testified that the pain which she experienced in her side and arm immediately succeeding the injury continues. She testified: “ I experienced the pain in my side and in my arm. Went to bed that night, and was confined to my bed for three days, under Dr. Wimmer’s care. After he called at my house for three days, I went to liis office. Go there yet. Right after the accident went every day, after the three days; the first part of the time twice a week; then once a week after that up to date. llave felt the pain since that time on the side and wrist. Wrist is still swollen. Never had any pain before that in my wrist, but have pain now there all the time. I never had rheumatism before June 28, 1891. Q. Since that time have you been troubled with it ? (Objected to; objection overruled; exception taken.) A. I do, and suffer great pain, especially when we have a change in the weather.’ ”

George Wimmer, a witness, testified: “ I am a physician. Graduate of Columbia College. Have been practicing as such in the city of New York for a number of years. ' I have known the plaintiff since I have been treating her. My examination showed that she liad sustained quite a large bruise, the size of my hand here, on the side of the ribs under the arm. I attempted to have her make the several motions with the arm, to find she was unable to use it, unable to lift the arm in the customary directions. Every attempt to use the arm caused great pain, and by careful examination I determined there was a partial dislocation of the shoulder. My next examination was the first time she called at my house. 1 found that the bruises were disappearing. She was not able to move her arm. In attempting to move it, it caused much pain. A month after I made another examination. I found her unable to move the arm again, but the pain was constant, but not so severe as at the earlier stage. She always had pain whenever the arm was moved. My next ■examination was probably three or four weeks after the second. I found she was able to perform the movements better, although the arm could not be moved to the limit The pain was always there. My next examination was not within six or seven weeks from the third examination. I found she had not improved very much between that and the last examination. I have not examined the arm since. I have prescribed for her a number of times for the pain she suffered. I prescribed for her every time she came to me. I prescribed internal remedies to remove the pain, nervousness and prostration from which she suffered, which caused insomnia. She was unable to sleep. And I tried external remedies to relieve the inflammation. She has been troubled with insomnia since that time, and I have a number of times prescribed for her. I saw her arm this morning. The examination this morning was merely superficial I noticed it was more swollen than it was; larger than the other one. The arm has been larger since the accident. This swelling of the arm is the. result of the injuries she sustained at that time. She is suffering from rheumatism now. I have traced it to the accident. That is all I find to account for her rheumatism that she suffers from at the present time.”

This evidence was sufficient, under the ruling in Kane v. Railroad Co., 132 N. Y., 160; 43 St. Rep., 494; to justify the court in charging the jury that they might compensate her for such future pain as they might conclude she would suffer. The judgment should be affirmed, with costs.

Follett, J., concurs.

Yak Brunt, P. J. I dissent There is no evidence justifying the submission of the question of future damages to the jury. It was simply allowing them to guess.