text:
    George F. Bolen, App’lt, v. Mary A. Bolen, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Mortgage given to wife as result of settlement of divorce suit— When cancelled.
    The defendant, after having been married less than a year, left the residence of her husband and commenced an action against him for divorce. A settlement and discontinuance of that action was effected by the terms of which the defendant undertook to return to her husband and live with him and perform her duties as his lawful wife. The plaintiff was to be allowed to keep his boy in his house and family as a member thereof. The plaintiff, pursuant to said agreement, executed and delivered to a third person a bond and mortgage for the payment of $8,000 for the use of the defendant, which was assigned to her. The defendant returned to the residence of her husband, but left it as soon as the boy came there to reside, and persisted in her refusal to return and live with the plaintiff as his wife. Thereupon this action was commenced to procure the cancellation and surrender of the bond and mortgage. The complaint was dismissed. Held, error; that the defendant had refused to perform her portion of the agreement and violated the condition upon which she received it; that there was nothing to indicate an intention on the part of plaintiff to make a donation thereof to his wife, or that the discontinuance of the action was the consideration for their execution. Bucklin v. Bucklin, 1 Abb. Ct. of App. Decisions, 242, distinguished.
    Appeal from a judgment entered in favor of defendant on a decision of a justice at special term dismissing the complaint.

      Jas. K. Hill, Wing & Shoudy, for app’lt; Kelley & MacRae, for resp’t.
   Dykman, J.

The plaintiff and defendant were married in August, 1884, and in May, 1885, the defendant took her departure from the residence of her husband and commenced an action against him for the dissolution of the matrimonial bonds between herself and her husband for certain unlawful acts on his part which were charged in the complaint.

A settlement and discontinuance of that action was effected, by the terms of which the defendant undertook to return to her husband and live with him and perform her duties as his lawful wife. The plaintiff was to be allowed to keep his boy, George Bolen in his house and family as a member thereof.

The plaintiff was to and did execute and deliver to a third person a bond and mortgage for the payment of $8,000 for the use of the defendant, which was to be and was assigned to her, and she now holds the same.

The defendant returned to the residence of her husband, but refused to permit the return of the boy, and threatened to leave the plaintiff’s house as soon as the child was brought there to reside, and finally, when he was brought to the house to live, she executed her threat and left her home, and persists in her refusal to return and live with the plaintiff as his wife.

Thereupon this action was commenced to procure the cancellation and surrender of the bond and mortgage. Upon the trial the complaint was dismissed, without costs, and now the plaintiff has appealed from the judgment.

The decision at special term was dictated by the case of Bucklin v. Bucklin (1 Abb. Ct. App. Dec., 242), which was held there to be a controlling authority, but our examination of that case leads us to no such conclusion. On the contrary we find but little similarity between these two cases.

In the case cited, for the purposes of a compromise of a controversy between husband and wife, and to arrest the prosecution of an action commenced by the wife against her husband for a judicial separation and a separate maintenance for herself and her infant daughter, the husband agreed to make provision for the support of his wife and the infant child together separate from himself, and convey a house and lot to the child within six months.

To effectuate such settlement the mortgage involved in that action was executed by the. husband to Vedder Green in trust for the wife and infant daughter, reciting the settlement and its terms, and after providing for the wife and daughter pursuant to the terms of the compromise, the following language was employed: “Now for the purpose of securing the performance by the said William of the aforesaid agreement and covenant on his part to be performed, this indenture witnesseth.” Then one of the provisions of the mortgage was that the husband within six months should convey to the infant daughter real property of the value of $1,000, and that if the conditions were broken and it became necessary to enforce the mortgage, the amount recovered thereon should be for the benefit of the wife and infant daughter.

The husband performed his agreement so far as the wife was concerned until her death, but failed to convey the real property to the daughter, and after the death of her mother she commenced an action to foreclose the mortgage for the sum of $1,000, and the court of appeals held and decided that so far as the mortgage was sought to be enforced it was created to secure to the plaintiff when an infant child, a portion of her father’s property to aid in her maintenance during her infancy, and to furnish her with a small independent estate in real property. And the court further held in accord with a long line of decisions that where the rights of creditors did not intervene, as they did not in that case, it was perfectly lawful for a parent to make such a provision out of his estate for a child or children by present gift, and that an executed gift of that character was as valid and effecual as though based upon a full pecuniary cousideration.

This lengthy abstract of that case has been made to show plainly that it, the decision, was based upon principles that have no application to this action.

This plaintiff never undertook to make any pecuniary provision for his wife and never was under any legal obligation to do so.

She never so far as we know made any claim against him for a separte maintenance or for anything of a pecuniary value. If she had a cause of action against him for an absolute divorce it rested in right only, and was founded upon his misconduct which she might condone and sweep away, and which if forgiven, formed no basis for a money demand.

The settlement was made by the plaintiff to secure the return of his wife and the restoration of his family under one roof, and the mortgage had that consideration and no more, and the condition of its execution was the return of his wife and her continuance at his home, and her performance of her duties there as his lawful wife.

She has refused to perform her portion of that agreement and violated that condition upon which she received the mortgage. There is nothing to indicate an intention on the part of the plaintiff to make a donation of the bond and mortgage to his wife, and nothing to show that the discontinuance of the action was the consideration for their execution. On the contrary it plainly appears that the procurement of the agreement and consent of the wife to the return the boy was the chief inducement to the execution and delivery of the securities, and it would be extremely unjust and plainly inequitable to permit the defendant to retain and enjoy the fruits of a contract which she repudiates and violates and refuses to perform.

The contract between the parties was that the defendant should return to her loyalty and perform the duties of a wife to the plaintiff for all time during her Hfe, and permit his son to remain under his roof and constitute a member of his family, and also discontinue her action which the plaintiff alleges without contradiction was baseless; and for all that, the defendant was to execute the mortgage in question. He has performed and she has not, and without performance she cannot retain the mortgage.

Upon the facts found by the trial judge the plaintiff was entitled to the relief he sought, but it cannot be administered upon this appeal.

The judgment should, tnerefore, be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    John Hayes, App’lt, v. George W. Carr, impleaded, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887)

    Injunction — Restraining collection op judgment—Assignment op JUDGMENT.
    Rabold, one of the defendants in this action, recovered a judgment against the plaintiff for the .costs in an action by the plaintiff against her, which she assigned to the defendant Oarr, her attorney in that action, for his services. At the time of that assignment the assignor was indebted to the plaintiff in a large amount for rent. Meld, that the assignee received the assignment subject to all the equities existing between the original parties, and that those equities should be adjusted by the judgment of the court before he is permitted to institute any proceedings for the collection of his judgment. , That an injunction was properly granted.
    Appeal from an order made at special term vacating an order made ex parte enjoining the enforcement of a judgment for costs.

      A. B. Moore and Samuel J. Crooks, for app’lt; George W. Carr, resp’t, in person.
   Dykman, J.

Catharine E. Rabold, one of the defendants in this action, recovered a judgment against the plaintiff for the costs in an action by the plaintiff against her, which she assigned to the defendant Oarr, her lawyer in that, action, for his services. At the time of that assignment the assignor was indebted to the plaintiff in a large amount for rent.

Such being the situation and relation of the parties, the plaintiff commenced this action to obtain a judgment, against the defendant Rabold for the amount due from her to the plaintiff for rent after the deduction therefrom of the judgment against him, and a restraint of the enforcement of the judgment by the defendant Oarr, the assignee thereof.

A preliminary injunction restraining the enforcement of the judgment during the pendency of this action was procured at its commencement, which was vacated on notice, and from the order of vacation we have this appeal.

The complaint makes a case for the interposition of the court, and it would be quite inequitable to permit tlie enforcement of the judgment by the assignee, while the insolvent assignor remains indebted to the plaintiff in a large amount of money.

The assignee received the assignment subject to all the equities existing between the original parties, and those equities should be adjusted by the judgment of the court before he is permitted to institute any proceedings for the collection of his judgment.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    Emile Taber, App’lt, v. Walter R. Willets et al., as Executors of Stephen Taber, Deceased, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1. Evidence—What admissible under Code Civ. Pro., § 829.
    In an action to recover possession of a bond and mortgage from the-executors, which was claimed by the plaintiff to have been given to her by her husband, the t> stator, the plaintiff was permitted to testify that she had it in October. 1885, and from time to time thereafter, that she had possession of it in February, 1886, at the New York hotel, where they were then living, that Mr. Taber, her husband, used to take the paper to ' settle the matter with Mr. Levitt." This was stricken out as being-within the prohibition of Code Civ. Pro., § 829. Held, error.
    2 Gift—Mortgage passed by delivery.
    The gift of a mortgage, in apprehension of death, or among the living,, may be effected by a simple delivery of the security.
    Appeal from a judgment entered in favor of the defendant’s upon the dismissal of the complaint upon the trial of the action at the Queens county circuit.

      Moore, Low & Wallace, for app’lt; Garretson & Eastman, for resp’ts.
   Barnard, P. J.

The plaintiff is the widow of Stephen Taber, deceased. The defendants are his executors.

In 1873 one Groff gave a bond and mortgage to Annabella Levitt for $4,500, and this mortgage was assigned by a written assignment to the deceased testator

He died in 1886 and this mortgage was found among Lis papers. The widow claims title to the same by gift from her husband. The defendants deny the claim and assert that it was an asset of the deceased Upon the trial the plaintiff was called as a witness in her own behalf, and was sworn. She was asked if ’ she had the possession of the bond and mortgage in her husband’s lifetime and was permitted, under objection as to the competency of evidence, to testify that she had it in October, 1885, and from time to-time thereafter, that she had the possession of it in February, 1886, at the New York hotel, where they were then living. That Mr. Taber used to take the paper to “ settle the matter with Mr. Levitt.”

The evidence given by the plaintiff “as to her possession of the bond and mortgage,” was all stricken out as coming within the prohibition of section 829 of the Code.

The first question presented, therefore, isas to the correctness of this ruling.

The court of appeals have recently been called to pass upon this section in several reported cases. Wadsworth v. Heermans, 85 N. Y., 639; Pinney v. Orth, 88 id., 450; Holcomb v. Holcomb, 95 id., 325; Lewis v. Merritt, 98 id., 209.

In Wadsworth v. Heermans, a claimant for certain bonds against a deceased party was permitted to testify that he bought the bonds of a third party, put them in his safe, and that the deceased in his absence took them out, and that they were not in the name of the deceased.

The court say that while the evidence might inferentially negative a personal transaction with deceased, yet that the fact was an indisputed one, and that an inference may be formed upon such a fact.

In Pinney v. Orth, a defendant was permitted to testify in reply to proof by a clerk of a transaction between a deceased person and the defendant that he was present at no such interview.

• In Holcomb v. Holcomb, the particular evidence received was held improper under this section, but it was reasserted that an indisputed fact could be proved, because the section did not prohibit such evidence, and apart from this section parties generally were witnesses.

In Lewis v. Merritt, the very point presented is decided. The facts are entirely similar, and the only difference between the case there presented and the one in question consisted in a reverse of parties. The executors of a deceased person were plaintiffs, and the claim of title was met by an adverse claim derived from a gift by the deceased. The defendant upon the trial was not permitted to state that he had possession of the subject of the dispute in the life-time of the testator.

The court of appeals held the ruling to be improper, and that the evidence was admissible, “athough such facts also incidentally tended to establish the inference that a personal transaction or communication between the witness and the testator had taken place.”

It did not need á written assignment to make a complete gift if all other requisites to make a gift are proven. “ It is clear upon the authorities cited that choses in action, such as bonds and mortgages and promissory notes, not indorsed, may be well transferred by delivery only as a donatio causa mortis.” The gift of a mortgage, in apprehension of death or among the living, “may be effected by a simple delivery of the security.” Westerlo v. Dewitt, 36 N. Y., 340.

Admitting the possession of the bond and mortgage to have been in the plaintiff after October, 1885, with occasional periods in which her husband had apparent possession of the same, the proof of the gift was sufficient to go to the jury. The parties were married late in 1884. In October, 1888, the wife had this bond and mortgage. That was about the time when the deceased and his wife proposed to exchange the bond and mortgage for a house for Mrs. Taber. He stated to a vendor that the bond and mortgage belonged to his wife, and that the cottage was for her, which would be taken in exchange for it. . There was a change of three cottages, or the house covered by the mortgage which it was proposed to give Mrs. Taber, and in March or April, 1886, she selected the house.

Mr. Taber was then on his death bed, and said that “ he was too feeble to change the paper.” He died in a day or two thereafter.

There is further proof to the effect that some six months before his death the testator said to the plaintiff’s sister that he had given the bond and mortgage to his wife, and that she was to take, therefor a house and lot, and that in the fore part of April, 1886, the deceased proposed to his wife to go out and “settle up that affair of your mortgage.” She refused to permit it on account of his health. Upon this evidence if credited by the jury, a gift may be established to the plaintiff.

If the bond and mortgage was in his actual possession and there be proof that it was delivered to her with the intent to convey and transfer at once the title thereto, and if the subsequent possession of the paper in the husband is explained by reason of his acting for her in transferring her property for land to be taken to her in exchange, all requirements of a valid gift will be furnished The question was one for the jury.

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

Pratt and Dykman, JJ., concur.


text:
    Charles Davis, Resp’t, v. Isabella M. Davis et al., Infants, Impleaded with Another, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Will—Cohstiluctioh'.
    The testator, by Ms will, after all Ms lawful debts were paid, gave all Ms real estate in fee simple to Ms three sons and the survivor and survivors of them in case either died before the testator without issue; and in case either died before Mm leaving issue, the share of such deceased child was to go to such issue. Two of the sons died before the testator, one leaving issue and the other leaving no issue. Held, that the share of the son leaving no issue went to the surviving son; that the share of the other son went to his children.
    Appeal from the final and, interlocutory judgments entered in an action to partition real estate.

      George V. Brower, for resp’t; James R. Steers, Jr., for app’lts.
   Dykman, J.

This is an action for the partition of real property, and the appeal is from the portion of the judgment which prescribes the rights and interests of the parties in the premises involved; it being the contention of the appellants that such rights are erroneously defined by the judgment which should be modified in that respect.

A more comprehensive and intelligent view of the case will be obtained by the introduction of a few facts.

The source of title was Henry Davis, who made and executed his last will and testament on the 6th day of September, 1875. That portion of the will which holds and controls this case reads as follows: “First. After all my lawful debts are paid and discharged, I give and bequeath all my real estate in fee simple to my three sons, Henry Davis, Charles Davis and James Albert' Davis, and the survivor and survivors of them, in case either dies before me without issue; and in case either dies before me leaving issue, the share of such deceased child shall go to such issue.

Henry died while his father lived, in December, 1880, leaving three children, Elizabeth M. Davis, Isabella M. Davis and Henry Davis, defendants and appellants in this action.

James Albert died also while his father lived in February, 1882, and the testator died in July, 1884, leaving the plaintiff in this action Charles Davis, the only survivor of his three sons, to whom the devise was made.

These facts and circumstances exhibit the question presented for our solution by this appeal, and our conclusions are to be written thus :

The primary devise was to the three sons, and then in contemplation of the death of either, provision is made for the devolution of the share of either upon the survivor or survivors, if either died before the testator without issue ; and if either died before the' testator leaving issue, then his share passed to such issue.

When, therefore, Henry died, his share was released to his children, and when James Albert died childless, his share was released to his brother Charles, because "he was the survivor of them, and the limitation is confined to the children of the testator. The devise is to his three sons, “and the survivor and survivors of them,” meaning his child or children left alive.

Henry died before the testator, and therefore never took his share, but it passed to his children as we have seen. James Albert also died before the testator and never took his share under the devise, but we can put no one in his place but a surviving child of the testator. His share was disposed of by the will, and passed to' his brother Charles, one of the three original devisees and the survivor of them.

The judgment appealed from being entered in accordance with these views should be affirmed, with costs.

Pratt, J., concurs, Barnard, P J dissenting


text:
    Sarah Wortman et al., Resp’ts, v Mary A. Robinson, Appl’t; the Bowery Savings Bank and Charles E. H. Robinson, etc., as Executor Def'ts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1 Will—Construction.
    The testator by his will devised and bequeathed to his wife all his estate, real and personal, of which he should die seized or possessed, and wheresoever situate, “ or so much thereof as she may use during her lifetime." He also made an executory devise to the plaintiffs of the residue of the estate remaining unused at the death of the wife. Held, that the gift over was good. That the intention of the testator was to give to his wife so much of his estate as she desired to use during her life, and to give the unused portion to the plaintiffs. That it was beyond the power of the wife to assign the portion of the estate undisposed of at her death.
    3 Pleading—Demurrer—Sumtciency ot complaint.
    The complaint alleged the death of the testator leaving a will, which was set forth, that at the time of his death he had upon deposit in the savings bank, in the name of himself and wife, $3,000, of which he was sole owner. That the bank-book went into the hands of his executor. That afterward the widow died, and that the defendant, Mary A. Robinson, claimed the money then remaining in bank under an assignment. On demurrer, Held, good, that the averment was that the fund belonged to the testator, notwithstanding the form and mode of deposit, and passed to the beneficiaries under his will.
    Appeal from an interlocutory judgment overruling the demurrer to the amended complaint.

      Harrison S. Moore, for resp’ts; John W. Fiske, for appl’t.
   Dykman, J.

The material facts arrayed in the complaint in this action are these: Joseph Robinson died in February, 1884, leaving a last will and testamentj which forms a component part of the complaint, and which will receive more attention later on.

At the time of the death of the testator he had upon deposit in the savings bank in the name of Joseph and Harriet Robinson the sum of $3,000, of which he was the sole owner, and the bank book issued by the savings bank to the testator was found with other bank books and property of the testator and went into the possession of his executor.

Harriet Robinson died in May, 1884, and the money then remained in the bank, and Mary A. Robinson claims the same under an assignment from Harriet Robinson, which the plaintiff’s allege was procured by fraud, force and undue influence.

The action is in equity to obtain a judgment declaring the assignment void, and permitting a recovery against Mary A. Robinson for $600 of the money which she ha.^ drawn from the bank and against the bank for the balance.

The defendant's interposed a demurrer to the complaint which was overruled by the trial court and we now have an appeal from the judgment and the order directing the same.

The allegation of the complaint respecting the money in ■question is that the testator at the time of his death had on deposit in the savings bank in the name of Joseph and Harriet Robinson the sum of about $3,000, of which he was the sole owner, and upon this assumption of the truth of this averment, the fund belonged to the testator not-notwithstanding the form and mode of deposit and passed to the beneficiaries under his will.

No effect can, therefore, be afforded to the assignment of Harriet Robinson for she' had nothing to assign under this view of the complaint.

It will become necessary, therefore, to ascertain the direction given to the money by the will of the testator, and this is the controlling clause: “Second. I devise and bequeath unto my beloved wife, Harriet Robinson, all my estate, real and personal, of which I may die seized or possessed, and wheresoever situate or so much thereof as she may use during her lifetime.”

The third clause creates an executory devise to the plaintiff of the residue of the estate remaining unused at the death of the wife.

The executory devise is dependent upon the failure of the first taker to execute the absolute beneficial power of disposition which was vested in her by the second clause, and the invalidity of such limitation is claimed by the defendants upon the authority of Jackson v Bull (10 Johns.. 19), Van Horne v. Campbell (100 N. Y., 287), and similar cases of the same kind.

Under these authorities it is claimed that the gift over is absolutely void, independent of the question respecting the exercise of the power of disposition, but we cannot co-_ incide with that view.

The language of the will is quite peculiar, and does not give all the estate, but only so much thereof as the wife may use during her fife, and the residue unused at her death is given to the plaintiff.

The intention of the testator is thus plainly evinced to give his wife so much of his estate as she desires to use during her fife, and give the unused, portion to the plaintiffs, and our conclusion is that such testamentary intention may be perpetuated even at common law, independently of the question of the effect of the provisions of our Revised Statutes affecting the question.

Under this view it was beyond the power of the wife to assign to the appellant the undisposed portion of this fund and the complaint states a good cause of action in favor of the plaintiffs.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Per Curiam.

text:
    Cornelius C. Lent, Resp’t, v. Isaac T. Montross, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    ' Receiver—Co-partnership—Dissolution—Agreement.
    By the agreement of co-partnership between the parties hereto it was-provided upon dissolution thereof V either party may make in writing an offer of the price at which he will buy the interest of the other or sell to the other his own interest at the same price.” Held, that the defendant having failed to exercise the option, cannot invoke the agreement to defeat a suit brought to wind up the partnership in the ordinary way.
    Appeal from an order appointing a receiver of the assets of a co partnership pending its dissolution.
    The seventh section of the articles of copartnership was as follows: Upon the dissolution of said co-partnership, if both parties shall be living and in health and mental faculties suitable for the transaction of business, either party may make in writing an offer to the other of the price at which he will buy the interest of the other, or sell to the other his own interest at the same price; and such other party shall within twenty days thereafter signify his election whether he will buy or sell at such price, and if he shall fail to do so by notice in writing within that time, the party making such offer may within twenty day after the expiration of the time herein limited to such other party to accept such offer, buy or sell at his own election according to his said offer.

      Eugene B. Travis, for app’lt; Calvin Frost, for resp’t.
   Per Curiam.

It is not necessary to determine whether, after the expiration of five years, the agreement about making an offer in case of dissolution, was binding, as we construe that to be a mere option, open to either of the parties when dissolution took place.

The words are, “either party may make an offer.” If the word “may” is to read as “must,” who shall determine which party shall make the offer ? It was open to the defendant to make the offer as soon as he received notice of the intent of the plaintiff to dissolve, when, if the clause was binding, he might have compelled the plaintiff to elect-whether to buy or sell his interest.

But defendant failing to exercise the option, we cannot see how he can invoke the agreement to defeat the suit.

Each has an equal right, and it is equally the duty of each to exercise the option, faihng in which, the partnership must be wound up in the ordinary way.

We think the appointment of a receiver was proper, and that the order must be affirmed, with costs.


author: Barnard, P. J. Pratt, J.

text:
    Daniel Ritchie, App’lt, v. Allen Taylor, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1. Attorney—Lien—Effect of release of parties.
    The plaintiff herein was sued in the city court of Yonkers and judgment was recovered against him. An appeal was taken to the county court and the judgment was affirmed. Upon this appeal to the county court plaintiff gave an undertaking, signed by two sureties. The plaintiff being finally unsuccessful tie sureties were compelled to pay the judgment. The sureties then sued plaintiff to recover the amount so paid as his sureties. Plaintiff obtained an order opening a default in the first mentioned action, which order was afterward vacated, and the sureties were allowed to take judgment. As a part of this order the sureties and the defendant herein, who was plaintiff’s attorney, were ordered to give a general release to the plaintiff and another. Held, that the release did not operate upon a claim which the defendant herein had against the plaintiff for services in the defense of the action in which the undertaking on appeal was given.
    '3. Same—When not called upon to advance money to pay costs.
    An attorney who conducted an action made a mistake and appealed from the order instead of the judgment. He obtained leave to discontinue and appeal from the judgment on payment of the costs. His client failed to provide the money to pay costs. Held, that the attorney, not having received any money for his services in the case, was not called upon to advance the money to pay the costs. Pratt, J.
    Appeal from a judgment entered upon the verdict in favor of defendant, and from an order denying a motion for a new trial,

      William Riley, for app’lt; Allen Taylor, resp’t, in person.
   Barnard, P. J.

The facts, so far as material to the point presented by this appeal, are not intricate.

The plaintiff was sued, in connection with one Weir, as partners." Ritchie denied the partnership. The suit was tried in the city court of Yonkers and the plaintiff was proven to have been a partner and judgment was recovered against him.

An appeal was taken to the county court and the judgment affirmed. This judgment was again appealed from to the general term of the supreme court.

Upon this appeal to the county court Ritchie gave an undertaking, signed by John B. Odell and John J. Littlebrandt.

The plaintiff was finally unsuccessful and the sureties were compelled to pay the judgment.

They then sued Richtie to recover the amount so paid as his surety.

Then Richtie obtained an order opening the default for which the appeal was dismissed in the supreme court, and permitting him to print the papers and have the appeal heard.

Bitchie failed to print again, and the order opening the default was vacated, and Odell and Littlebrandt were permitted to take judgment.

As part of this order, Odell Littlebrandt, and Taylor, the defendant in this action, who was his attorney, was ordered to give a general release to Bitchie, and to one McFoll, who had indemnified Odell and Littlebrandt against loss on this undertaking on appeal. It is thus manifest that the only object of this release was to discharge the sureties on appeal, their surety and their attorney in the action.

The question of compensation between Bitchie and Taylor, as attorney and client in other matters than those involved in the action on the undertaking was not presented, and under the case was not within the provisions of the order requiring the release.

The action was only brought to recover money paid as surety and the costs of the action in which this recovery was sought.

There was no error therefore in holding that the release did not operate upon a claim which Allen Taylor had against Bitchie for services in the defense of the action in which the undertaking on appeal was given.

This is the only question presented.

The case shows a conflict of fact, but that is settled by the jury.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs.

Pratt, J.

The only error committed in the course of the litigation of Wier against Bitchie, for which defendant was clearly responsible, was in appealing from the order of affirmance made by the county court.

That appeal should have been from the subsequent judgment, instead of from the order.

The error was promptly discovered, and the appeal withdrawn, but as the costs were not paid upon withdrawal, the respondent in that appeal disregarded the withdrawal, and dismissed the appeal, with sixty-four dollars costs against the present plaintiff.

The circuit judge left the question to the jury whether defendant’s liability extended to the whole liability, sixty-four dollars, or should be limited to twenty dollars, the amount for which the appeal might have been dismissed when the error was discovered.

We think this ruling was correct. Defendant notified plaintiff of the error and of the need to upon withdrawal. Plaintiff refused and failed to supply the necesssry money.

In view of the fact that defendant had tried the cause in the city court and conducted the appeal in the county court up to that time without being paid anything on account of his services, which are shown to be worth from seventy-five dollars to one hundred dollars, we do riot think it his duty to advance the twenty dollars required to obviate the effects of his mistake.

Not having been paid anything on account of his services, we think he was within his right to call upon the client to advance the money.

And the charge of the circuit judge that the jury might allow the larger or the smaller sum was as favorable as the-plaintiff had a right to expect.

The undisputed evidence is to the effect that defendant’s services were worth the sum of $175. By the verdict of the jury his claim for that amount was extinguished.

We do not find any legal ground in the testimony for mulcting him in that sum. But the plaintiff suffered much in the litigation, the defendant was to some extent responsible, and the decision of the jury that he should receive no pay was not unnatural.

The defendant does not appeal, and the judgment must be-affirmed, with costs.


text:
    Lemuel Weil, Resp’t, v. Louis Levenson, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1. Pleading—When complaint sufficient.
    The complaint stated that the plaintiff was a judgment-creditor of one. Rosenberg, having an execution in the sheriff’s hands; that the judgment, debtor for the purpose of defrauding his creditors permitted his son and the defendant impleaded herein to recover judgments which were'prior in lien to the plaintiff’s judgment, both upon the real and personal estate. It also contains an averment that the said judgment-debtor assigned all his property to pay his debts to'the assignor which assignment (if not fraudulent), was prior in right to plaintiff’s judgment, and that the said assignment was void for fraud. Held, the complaint was sufficient as a matter of pleading.
    S. Same—Injunction—Affidavit.
    The affidavit in support of the application for an injunction beyond alleging the insolvency of the defendant alleged only that certain personal-property after the sale thereof by the sheriff, under the said executions, was bid in by each of the judgment-creditors and that they had not removed the same from the possession of the judgment-debtor. Held, there was no ground for an injunction against the sheriff’s paying over the proceeds of the sale. That the price paid for the goods at the sale was of no-importance. That the non-removal of the goods was not fraud in fact.
    Ap-peal from an order made by the Hon. Willard Bartlett, one of the justices of this court, enjoining and restraining the defendants from receiving any of the funds in, the hands of the sheriff of Queens county, which may have been collected under an execution issued to said sheriff, upon a judgment recovered by the defendant, Louis Levenson, against the defendant, Meyer Rosenberg, pending an action to set aside the judgment.
    The action is brought by the plaintiff against the defendant, impleaded with others, to set aside the judgment recovered by this defendant on the 27th day of August, 1886, for the sum of $2,611.79, and which judgment was entered in the office of the clerk of the city and county of New York, on the said 27th day of August, 1886, a transcript of which was afterwards filed and docketed in the county clerk’s office of Queens county, and an execution upon which judgment was duly issued to the sheriff of said Queens county.

      William Doll, for app’lt; Blumenstiel & Hirsch, for resp’t.
   Barnard, P. J.

The complaint as a matter of pleading is sufficient. It states that the plaintiff is a judgment creditor of Meyer Rosenberg, having an execution in the sheriff’s hands. That the judgment debtor for the purpose of defrauding his creditors, permitted his son, Louis Rosenberg, to recover a judgment for $1,541.22, and Louis Levenson, to recover a judgment for $2,611.79. Both these judgments were prior in lien to the plaintiff’s judgment, both upon real and personal estate. The complaint also contains an averment that the judgment debtor assigned all his prop • erty to pay his debts of the assignor, which assignment was prior in right to' plaintiff’s judgment apparently, but by reason of a fraudulent intent to defraud his creditor, the assignment is also void. No facts other than the one contained in the statement that the Rosenberg and Levenson judgments rest upon fictitious claims, are set forth in the complaint. None are stated in the affidavit in support of the application for an injunction, beyond the alleged insolvency of Levenson, and that certain personal property after the sale thereof by the sheriff, under the Rosenberg and Leveson execution, was bid in by each of the judgment creditors, and that they had not removed the same from the possession of the judgment debtor.

The case is made very clear by the opposing affidavits. The debts of Louis Rosenberg were for money lent by him to his father. The judgment was consequently based upon a good debt. The debt included in the Levenson judgment was also for lent money.

The real estate of the debtor was sold under the Levenson judgment, and brought enough to pay all the debts of the assignor. Assuming the debts to be good, an averment that the personal property was sold too cheaply, has no importance.

The sale was public and biddings open to all. If the debt was good, it was of no importance whether the property purchased by the judgment creditor was at once taken away.

' It is no fraud in fact, but a subsequent judgment creditor could levy upon it because of an inference based upon the fact that there was no actual change of possession. Upon the facts of the case, therefore, the injunction was not well supported, and the order should be reversed with costs and disbursements.

Pratt and Dykman, JJ., concur.


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    Charles B. Gilman and Caroline R. Garczynski, App’lts, v. George F. Gillman et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Taxes and assessments—Presumption of regularity—Hot reviewed on a MOTION.
    Every presumption is in favor of the regular and valid administration and execution of the laws of taxation, and on a mere motion the court will not review or reverse the determination of the hoard of assessors in fixing the amount of arrearages in the way of taxes and assessments which ought to he laid and collected from any land.
    Appeal from an order denying injunction and granting leave to file supplemental answer.

      Raphael J. Moses, Jr., for Garczynski, app’lt; Jay Candler & Brush, for resp’t Healy; Almet F. Jenks, for registrar, resp’t.
   Dykman, J.

The principal object of the plaintiffs in this action is the procurement of a sale or partition of certain real property in the city of Brooklyn, but subsidiary relief is also sought against the defendant, A. Augustus Healy, who has become a purchaser of the premises at a sale thereof for unpaid taxes and assessments made by the defendant Jackson as registrar of arrears of the city of Brooklyn.

Subsequent to the commencement of the action a motion was made on behalf of the plaintiff Garczynski for an order restraining the registrar of arrears from executing and delivering to the defendant A. Augustus Healy any deed of conveyance for the premises in pursuance of his purchase from that officer. That motion was denied, and the plaintiff has appealed from the order of denial.

On or about the fourth day of December, 1886, and subsequent to the decision of the motion, the registrar of arrears executed and delivered to the defendant A. Augustus Healy a deed of conveyance for the premises so purchased by him, and he thereupon made a motion for leave to serve a supplemental answer in the action setting up that fact, to the end that his proof thereof might be legitimately made upon the trial of the action. The motion was granted, and the plaintiff: Garczynski also appeals from that order.

There is plainly no merit in either appeal.

If the sale of the premises vested no right or title in the purchaser, the fact will be so found and determined upon the trial of the action, and no sufficient reason exists for arresting the operation of the laws of taxation in the city of Brooklyn when every presumption is in favor of their regular and valid administration and execution.

Nay, more, in view of the finality imparted to the determination of the board of assessors in fixing the amounts of arrearages in the way of taxes and assessments which ought in fairness and justice to be laid and charged against and collected from any land, it would be exceedingly unwise, upon the decision of a mere motion to review or reverse such determination.

Yet these remarks are not intended to indicate any doubt' of the regularity and legality of the taxes and assessments in question, for our views are quite to the contrary, but we only intend to hold now that a decision of that question is not necessary to sustain the order from which the appeal is taken.

The allowance of the supplemental pleading setting up, the deed subsequently delivered was obviously a wise exercise of discretionary power. The purchaser at the tax sale was thus placed in a position to introduce proof to establish his legal rights, whatever they are, and place before the court the facts which will enable it to administer justice to all the parties.

Both orders should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


author: Pratt, J.

text:
    Isaac B. Potter and George F. Alexander, Resp’ts, v. The New York Infant Asylum, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1. Corporations—President can employ counsel where corporation INTERESTED.
    In an action for the value of certain legal services rendered by the plaintiffs to the defendant, the defense was that they were not employed by resolution of the board of managers, nor by any person possessing authority under such resolution to bind the defendant corporation pursuant to the charter thereof. It was shown that plaintiffs were employed by the president of the corporation, who in fact controlled the litigations of defendant. Held, that the president of a corporation has a general authority to employ counsel to assist in legal proceedings where the corporation is interested.

      2. Same—When corporation liable for unauthorzed acts of agents ULTRA VIRES.
    The work oí the plaintiffs was highly meritorious. Its performance required many months; various officers of defendant's had actual notice that plaintiffs were engaged in legal work for the corporation under supervision of their president, and did not concern themselves as to the conditions of the employment. Held, that when, upon the request of an agent of a corporation, money has been loaned, goods supplied, or services performed, and the corporation has received the benefit, to hold it absolved from liability because the agent went beyond the letter of his power would be to encourage fraud. In such a case the plea of ultra vires will not be allowed to prevail.
    Appeal from a judgment entered upon the report of a referee in favor of plaintiffs.

      Clark Bell, for app’lt; C. F. Potter, for resp’ts.
   Pratt, J.

The plaintiffs recovered, before the referee, $516 for legal services performed by them in certain proceedings instituted m behalf of defendants to restrain the board of supervisors of Westchester county from leying a tax upon property of the infant asylum.

The performance of the service was abundantly proved, and the value as found by referee is expressly conceded not i to be against the weight of evidence or excessive.

I The ground upon which the defendants’ liability is congested, is that plaintiffs were not employed by resolution of the board of managers, nor by any person possessing authority under any such resolution to bind the defendant corporation; special reference being had to a clause in the charter which recites that five managers shall constitute a quorum of the board for the transaction of ordinary business, but that no contract shall be made involving an expenditure of more than $500 without the presence of a majority of the managers.

The services were performed upon the request of the president of the corporation. He was an attorney at law, and although it is not proved that any express authority therefor was given him by the board of managers, he in fact controlled the litigations of defendants.

These were shown to be numerous. As they occupied the time of the president “night and day” he found occasion to obtain the aid of many lawyers. In no case does it appear that the board of managers were consulted in advance of employment It would appear that in most cases the action of the president was ratified by paying for the services; in one instance, not until legal proceedings were begun for collection.

In the present case the services continued several months under the general supervision of the president.

■ Plaintiff prepared the complaint in the action whiph the president signed as attorney for the asylum. One of the plaintiffs prepared the brief for the argument at special term, and opened the discussion there.

Upon the hearing an affidavit was used in defendant’s behalf, which recited that one of the plaintiffs was counsel for the asylum.

The printed argument at general term; prepared by one of the plaintiffs, was followed by the reversal of the adverse ruling at special term, and the property of the asylum was exempted from taxation.

The annual tax had been about $900 a year, and the exemption is still enjoyed.

That the president of a corporation has a general authority to employ counsel to assist in legal proceedings where the corporation is interested, is well established. Insurance Co. v. Oakley, 9 Paige Ch., 496.

So as to a cashier. Bank v. Bank, 10 Wall., 604.

In Root v. Olcott, the court say the power is indispensable for the protection of corporations, and that its abuse can be easily remedied by the removal of the indiscreet officer.

Irrespective of the power of the president to employ counsel, .the recovery below may be sustained upon other grounds.

The work of the plaintiffs was highly meritorious. Its performance required many months; various officers of defendants had actual notice that plaintiffs were engaged in legal work for the corporation, under the supervision of their president. It does not appear that they concerned themselves as to any of the conditions of the employment.

The conduct of defendants can be explained in two ways. Either they had confidence in the discretion and good judgment of their president, and were willing to abide by his acts, or they confided in their supposed inability to contract liabilities without a formal resolution of the board, and were willing plaintiff’s services should continue to the benefit of defendants, without any corresponding liability.

In either case, good morals require that the laborer should receive his hire.

Nor do we find any difficulty from the restriction in the charter, of defendants’ power to contract.

An infant is not bound by his contracts, yet if he purchase necessaries he is bound to respond, not for the price he has agreed to pay, but for the price the goods are reasonably worth; the price he ought to pay irrespective of any agreement. In other words, the infant, not liable upon contracts made by himself, is Hable upon contracts made for him by the law.

So a corporation which has enjoyed the benefit of a contract cannot escape such responsibility as the law implies: from acceptance and enjoyment of its benefits by pleading irregularity in the making.

_ Even when the contract is one the corporation had no right to make, after it is executed and the benefits received, it is held that to hold the plea of ultra vires to, prevail would be to encourage fraud. Co. v. Roach, 97 N. Y., 381; Co. v. Barlow, 63 id., 70.

When, upon the request of an agent of a corporation, money has been loaned, goods supplied, or services performed, and the corporation has received the benefit, to-hold it absolved from liability because the agent went beyond the letter of his power, would be, in the language of the cases, to encourage fraud.

As well remarked by Brady, J, in Root v. Olcott, an abuse of the agent’s power can be speedily remedied by removal of the indiscreet officer. And if the liability is restricted to a quantum meruit, no injustice can be done to the corporation.

It follows that the judgment appealed from should be affirmed with costs.

Barnard, P. J., and Dykman, J., concur.


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    People ex rel. Emily J. Small, App’lt, v. George W. Robinson et al., Commissioners of Highways of the Town of Brookhaven, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1. Highways—Opening of, through an orchard—Laws 1873, chap. 773, 1 Rev. Stat. ¡ 514, § 57.
    Chapter 773 of Laws 1873 have so amended 1 Rev. Stat., 514, § 57, that a road can be opened through an orchard without the consent of the-owner. The commissioners of highways must make the certificate as to the necessity of the road and their decision must-be affirmed by the county judge and his order be confirmed by the general term of the supreme, court as provided for in Laws 1873
    2. Same—Jury not necessary.
    There is no provision for a jury to pass upon the necessity of said road, and none is necessary
    Appeal from a judgment confirming an order foj the opening of a highway.

      Thomas S. Mount, for relator; Wilmot M. Smith, for com’rs.
   Barnard, P. J.

No jury was needed as preliminary to the opening of the road in question.

It passed through an orchard of more than four years-growth and by the Revised Statutes such a road could not be opened under the general laws without the consent of the owner. 1 R. S., 514, section 57.

This section was so amended by chapter 773 Laws of 1873 that a road which was prohibited under this section could be laid out without such consent. The commissioners were to certify that the public interest would be greatly promoted, and upon the certificate and upon a notice to the owner or occupant, to have a hearing before the county judge. If the judge affirmed the decision of the commissioners they were directed to present the order of the county judge to the general term of the supreme court of the department in which the land was situated, again upon notice and “if said court shall confirm the said order it shall then be the duty of the said commissioners to proceed and lay out the road as in other cases.”

Ho jury is called for and none is provided for.

By section 58 a jury was provided for in other cases and that section has been repeatedly amended, but there is no reason to believe that the legislature by the use of the general words in all cases where roads are laid out without the consent of the owner it shall be done upon the certificate of necessity by a jury.

These words only refer to those cases where the commissioners have power to lay out roads under the Revised-Statutes.

The certificate of necessity is reached in a different way when the road passes through gardens, orchards, buildings and fixtures, and the use of the words “as in other cases” was not intended to call for a jury but for the laying out of a road through buildings and fixtures and orchards as in ordinary cases.

The point taken in respect to the service of the notice of hearing before a jury is not sufficient to call for a reversal. The notice of hearing before the county judge was properly served.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs.


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    The Rector, Churchwardens and Vestrymen of St. Mark’s Church, in the Town of Newcastle, Appl’ts, v. Charles G. Teed, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9,1887.)

    Contract—Consideration—What sufficient—Who can enforce.
    One Wright, who was the sole heir-at-law of a certain testator filed objections to the will of said testator when it was offered for probate by the defendant, who was the executor named in said will. The said defendant made a written agreement to pay the plaintiff herein, a certain amount in consideration of the said Wright’s withdrawing his objections to the probate of the will. Held, that the agreement was based upon a good consideration between the parties thereto. That it could be enforced by the plaintiff for whose benefit it was made.

      Appeal from a judgment rendered by Dykman, J., without a jury.
    The action was brought upon a written promise or undertaking to pay to the plaintiff $500.
    The defense was that the undertaking was without consideration and void.
    The facts were undisputed and were found by the court as follows:
    The defendant was the executor of the will of Lewis T. Wright, who died in or about 1875, and as such executor he propounded said will for probate before the surrogate of Westchester county.
    Plaintiff is a religious corporation duly organized and existing under the laws of New York, and is the payee in the written undertaking or promise, sued upon in this action.
    Thomas Wright, the only brother, heir-at-law and next of kin of said testator, had filed objections to the probate of said will. The legatees under said will were near relatives of the defendant, and for their sake, defendant was anxious that the contest should be withdrawn and the will .admitted to probate. Thomas Wright was a churchwarden of the plaintiff and he insisted that the testator had agreed to give $500 to the plaintiff. On April 14, 1875, the said contest respecting Lewis Wright’s will was on trial before the surrogate of Westchester county, the parties being present with their counsel; the defendant desired that the contest be withdrawn, and a compromise was arranged by which Thomas Wright agreed to withdraw his opposition to the probate of the will upon condition that the defendant would pay to the plaintiff $500, in the manner, at the time, on the condition and for the purpose expressed in the obligation sued upon; to this the defendant agreed and immediately executed and delivered his written obligation upon which this suit wss brought. Thereupon Thomas Wright withdrew his opposition, the will was immediately admitted to probate and letters testamentary thereon were issued to defendant. The written undertaking of defendant passed and delivered to the plaintiff, who now owns and holds it. Thomas Wright died September 20, 1882, and no agreement or instrument of any kind had been executed by the legatees of Lewis Wright to bind them to the performance of said agreement instead of the defendant.

      Edwards & Odell, for app’lt; Close & Robertson, for resp’t.
   Barnard, P. J.

The question so often made of a privity of contract between the promisor and the promisee is absent from this case. The promise is made by the defendant to the plaintiff. Even if the promise had been made to Wright for the benefit of the plaintiff, an action would lie upon the promise, if founded upon a good consideration between the parties to the promise. Todd v. Weber et al., Executors, 95 N. Y., 181.

This case shows a promise made directly to the plaintiff upon a consideration moving from Wright to Teed. Wright was the sole heir-at-law and next of kin of Lewis Wright, his brother. This brother had made a will giving legacies to a greater extent than could be paid out of the assets of the estate. The heir-at-law filed objections to the will, and among them that his deceased brother had agreed to give the church $500 to keep the burial grounds of the church in order. Teed was the executor of the will and offered it for probate. The parties benefited by the will were some of these relatives of the deceased. Under this state of facts the executor and proponent of the will made a compromise. The consideration was good. If the promise had been made by the legatee to the contestant, the consideration would have been good. Palmer v. North, 35 Barb., 282.

This would stand upon the value of the withdrawal of the objection to the probate.

If Wright, the contestant, could furnish a good consideration to the legatees, he could to a person who stood in the relation of executor and personally made a promise to Wright, based upon the same consideration.

The judgment should, therefore, be reversed, and a new trial granted, costs to abide event.

Dykman, J., not sitting.

Pratt, J., concurs in following opinion:

Pratt, J.

It does not appear that Thomas Wright owed any debt or duty, or was under any obligation to the plaintiffs.

So that had the promise been made to Wright for plaintiff’s benefit, the case would fall directly within the language of Allen, J., in 69 N. Y., 283: “ To give a third party, who may derive a benefit from a promise, an action, there must be * * * some privity between the promisee and the party to be benefited.” But in the case at bar the promise was made directly to the plaintiffs.

The fact that the consideration moved from Wright is not important. Take the case where A. lends money and receives a bond payable to B.; can it be doubted that B. can enforce the security.

Wright was next of kin and heir-at-law. He, therefore, had abundant motive to desire to defeat probate of the will, and the withdrawal of the objections was an adequate consideration which moved from him to defendant. It is not needful to the validity of the ■ contract that the consideration should be beneficial to defendant. Yet we think his commissions as executor supply an abundant consideration, which may also be said of the benefit to his relatives, the legatees.

It follows that the plaintiffs were entitled to recover, and. the judgment in favor of defendants should be reversed and new trial ordered, with costs to abide the event.


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    Wallace Mayo, Resp’t, v. Sallie M. Davidge et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Practice—Counterclaim:—When demurrable under Code Civil Pro., §501.
    It is essential to a counterclaim that it exist in the hands of the defendants who set it up at the time of the commencement of the action. If it did not, it will he struck out on demurrer, under Code Civ. Pro., § 501. The rights of the parties become fixed according to the facts which existed. when the plaintiff commenced his action.
    Appeal from an interlocutory judgment sustaining plaintiff’s demurrer to a counterclaim interposed by the defendants.

      F. Cantine, for app’lts; H. S. Snow, for resp’t.
   Barnard, P. J.

The complaint is one for the foreclosure of a mortgage made by Sallie M. Davidge and her husband for $2,000. A judgment for a deficiency is asked against both the wife and the husband, and the loan, so far as disclosed by the complaint, was made to them jointly.

They answer, and, among other defenses, aver a loan, made by the husband to the plaintiff a balance due thereon, an assignment of that balance to Longuemon and a re-assignment of the same by him to the defendants Davidge and husband.

The answer does not contain an averment that the assignment was made or that the defendants above named obtained the title thereto before the commencement of this action. ”

A demurrer was interposed to the counterclaim thus pleaded.

By section 501 of the Code the character of a counter-is established. In any action on contract “any other cause of action on contract existing at the commencement of the action.”

By section 495 it is made a cause for demurrer to a counterclaim that it is not of the character specified in section 501.

It is, therefore, essential to a counterclaim that it exist in the hands of the defendants who set it up at the time of the commencement of the action.

The rights of the parties become fixed according to the facts which existed when the plaintiff commenced his action.

This is accordance with the rules of pleading as they have always existed.

It is never proper for a party defendant to buy a defense or a counterclaim after he is sued.

Insolvency was never a reason why the rule of pleading should vary. All parties are under the same rules of pleading. It cannot be assumed that the wife, under the allegtions of the complaint, is not liable for the deficiency, and that the husband is alone liable so as to prevent the counterclaim on behalf the husband.

The husband does not own the same; his former title passed from him and the re-assignment was taken to the wife and husband.

Their right to set it up does not exist because it was acquired after suit brought.

Judgment affirmed, with costs.

Pratt and Dykman, JJ , concur.


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    Yonkers Society for the Prevention of Cruelty to Children v. The City of Yonkers.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887)

    Municipal corporation—Yonkers (city of)—Cruelty to children— Society for prevention of, entitled to fines—Laws 1876, chap. 122—Laws 1881, chap. 184.
    The plaintiff prosecuted certain cases for the violation of laws relating to or affecting children, which resulted in the accused persons being fined. The judge of the city court of Yonkers paid the money received from said fines into the city treasury. He'd, that while the said judge is required to pay the money so collected into the city treasury, by chapter 184, Laws 1881, that the money is not given to the city, but by Laws 1876, chapter 122, is given to the plaintiff, and that they were entitled to recover it in an action for money had and received against the city.
    A case agreed upon and submitted under Code Civil Procedure, sections 1279, 1280 and 1281.

      Matt. H. Ellis, for pl’ff; Joseph F. Daly, for deft.
   Barnard, P. J.

The plaintiff is an incorporated society under chapter 130, Laws of 1875, with power to make complaints for the violation of law “ relating to or affecting children.”

Under this power the society made the complaints, and the accused persons were convicted and fined. The fines were paid by the court into the treasury of the city of Yonkers. By section 5, of chapter 122, Laws of 1876, it is provided as follows:

“All fines, penalties and forfeitures imposed and collected in any county in this state under the provisions of this and of every act passed, and which may be passed, relating to or affecting children in every case where the prosecution shall be instituted or conducted by a society incorporated pursuant to the provisions of chapter 130 of the Laws of 1875, being “An act entitled an act for the incorporation of societies for the prevention of cruelty to children,” shall, except when otherwise provided, inure to such society in aid of the purposes for which it was incorporated.

Under this section it is clear that the plaintiff is entitled to the fines unless the legislature “have otherwise provided.” By the charter of the city of Yonkers, chapter 184, Laws' of 1881, it is made the duty of the city judge of Yonkers to pay all fines imposed and collected by him into the city treasury. Section 10.

The claim under this provision is that the legislature intended to give the fines in question to the city. There is no necessary conflict between the acts.

The fines may be paid into the city treasury and still inure to the society for the protection of children. The charter simply does not permit the city judge to pay the fines to the plaintiff society. He is required to pay all" fines over, with a report of the subject of the fine " for what received.” The money is not given to the city in terms, and by the law of 1876 it is so given to the children’s society.

The portion of the fines whieh inure to the plaintiff reach .the city treasury, and an action for money had and received will lie. The defendant has no right to hold the same as against the plaintiff. Bank of the Commonwealth v. Mayor, 43 N. Y., 184.

The fine for selling strong drink to a child belongs to the plaintiff. The offense is'one “relating to children.” The offense is created to protect children, and a license to sell intoxicating liquors is no protection from it, because of the tender age of the child.

The society was intended to protect them from wrongs like this.

There should be judgment for the plaintiff upon the submitted case, with costs.

Dykmann and Pratt, JJ., concur.


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    Matthew J. McCarragher, an Infant by Stephen McCarragher, his Guardian, ad litem, Resp’t, v. William H. H. Rogers, Appl’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Negligence—Master and servant—Evidence—What admissible.
    In an action to recover damages for injuries received while operating a printing press belonging to the defendant, which injury was alleged to have happened by reason of the defendant’s negligence in furnishing a defective machine; Held, that it was competent to show that the same machine had exhibited the same defect resulting in a similar injury at a time long previous to the occurence of the injury in suit.
    Appeal from a judgment entered at the Kings county circuit on the verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial.

      Robertson & Harmon, for appl’t; Baldwin F. Strauss, for resp’t.
   Pratt, J.

The rules require that a case shall state the evidence in narrative form and that only the exceptions to be reviewed shall be presented.

It is evident that the parties have given an exact transcript of the stenographer’s minutes thus imposing upon the court the labor of reading a large amount of unnecessary matter which ought not to be in the case.

This method of settling a case cannot be too severely criticised as it shows either ignorance of the practice or a willful disregard of the rules established for the convenient and orderly disposition of the business of the general term.

The questions raised by this appeal are few and simple. The case was submitted to the jury under an unexceptionable charge and the verdict cannot be said to be excessive in amount under the evidence.

The first exception relied upon by the defendant of at folio 164, where proof of a similar injury by the same machine to another person was offered in evidence and received under objection.

The object of this proof was to show that the machine was defective for so long a time prior to the accident to the plaintiff that the defendant might be presumed to know of its defective character. In this view we think the evidence was proper. Loftus v. Union Ferry Co., 84 N. Y., 455.

The question did not call for the particulars of another transaction and they were not given, but simply to show that this same machine had exhibited the same defect resulting in a similar injury at a time long previous to the occasion under investigation and about which there was no dispute.

It is not material now to discuss the question whether a nonsuit might not properly have been granted at the close of plaintiff’s case as the plaintiff, if the case proceeds, has a right to insist upon any proof supplied during the trial to sustain the denial of a nonsuit, and there was abundant ■evidence before the close of the trial to warrant a submission of the case to the jury.

As the case stood, the jury might infer that the machine was in a defective and unsafe condition and not properly fastened and secured in its place.

It is true that two witnesses expressed the opinion that "the press was safer with open slats to allow the table to be lifted out of its position, but this was not controlling and "the jury had a right to disregard their testimony.

The table fell or tipped out of its place and the plaintiff’s leg thereby became entangled in the place where it was injured, and the evidence of the defendant’s expert showed that in such way the injury might have occurred.

This evidence, taken in connection with the other circumstances, was amply sufficient to take the case out of the rule laid down in Losee v. Buchanan (51 N. Y., 476).

The question as to the contributory negligence of the plaintiff was properly submitted to the jury.

The rule as to a master’s liability was clearly stated in the charge and as favorably to the defendant as the facts warranted.

We have examined the other exceptions taken, but find no error sufficient to warrant a reversal of the judgment.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


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    Joshua Hitchcock, Appl’t, v. The Brooklyn City Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Negligence — What pbima facie evidence of—Nonsuit — Stbeet cabs.
    In an action for damages for injuries received in alighting from one of defendant’s street cars: Held, that when an accident is occasioned in such a manner and from such cause, as to show that something was wrong with the car, proof of the accident and the means and cause of it is sufficient to put the carrier upon his proof, and a non-suit is improper.
    Appeal from a judgment in favor of defendant entered on a non-suit.

      Charles J. Patterson, for app’lt; Morris & Pearsall, for resp’t.
   Barnard, P. J.

The testimony is very brief, and as the complaint was dismissed, every fact must be deemed proved, which was testified to by the plaintiff.. He was. then a passenger in defendant’s cars. When he got to the point where he was to leave the car, he stood up, turned around in his seat so as to signal the conductor to stop.

He faded to attract the notice of the conductor, and the car went by the place where he wanted to get off, and when he was carried to the middle of the block beyond, he got on the step and waited for the car to stop.

The car was one of those which had a step along each side; was an open car, with seats across.

The conductor gave no signal to stop, but stood with his Read down, looking across the street. When the plaintiff was carried considerably past his station, and'while the car was in motion, he stepped off. The right foot was caught in some projection in the step, which did not show itself until the plaintiff attempted to get off.

Before that his foot was firm on the step, and the obstruc • tion was in the hollow of his foot, and when the plaintiff attempted to lift his foot, the obstruction caught in the front part of the heel of the boot, and then, with the foot fast, he was thrown down and injured.

The plaintiff was an active man of more than ordinary ability,” and was in the habit of using cars and leaving them while they were in motion. There was proof tending to show that cars like the one in question had a bolt fastening two pieces of the step.

The head of the bolt up on the upper side, and the nut which fastened it was below. These bolts, after a car was much used, projected further above the step than when new, and the nut was drawn tighter to bring it down again.

There was no proof that any such state of facts existed at the time of the accident, but rather the contrary.

A witness called by plaintiff examined the car the next •day and found no fault.

When an accident is occasioned in such a manner and from such a cause as to show that something was wrong with the car, proof of the accident and the means and cause ■of it is sufficient to put the carrier upon his proof.

If the car had been in order, no projection sufficient to •catch and hold the passenger fast would exist.

If the jury credit the testimony, they may find neglect from the accident itself and its surroundings. Hart v. Hudson River Bridge Co., 80 N. Y., 622.

The non-suit was, therefore, improper, and a new trial ■should be granted, with costs to abide event.

Pratt and Dykman, JJ., concur.


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    John Boardman, Resp’t, v. Walston H. Brown et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

      1. Master and servant—Duty of master—Liability of master.
    The servant takes the ordinary risks of the employment, but the master is bound to furnish" capable fellow-workmen and safe and suitable machinery and appliances for the purpose of the employment. If the machinery is unsuitable or dangerous, the master is liable for an accident occasioned thereby, even if the negligence of a fellow-workman occasioned the same.
    2. Same—Dangerous machines.
    The fact that a dangerous machine could be safely worked by careful men, does not remove the liability from the master if an injury occurs.
    Appeal from a judgment entered on a verdict of a jury in favor of the plaintiff at the Westchester circuit, and from an order denying a motion for a new trial on the judge’s minutes.

      E. T. Lovatt, for app’lts; W. B. Davidson, for resp’t; Isaac N. Mills, counsel for resp’t.
   Barnard, P. J.

This case was properly sent to the jury. The general rules which govern the relation of master and servant, in respect to the circumstances surrounding the accident, are well settled.

The servant takes the ordinary risks of the employment, but the master is bound to furnish capable fellow-workmen and safe and suitable machinery and appliances for the purpose of the employment, and that if the machinery is unsuitable or dangerous, the master is liable for an accident occasioned thereby, even if the negligence of a fellow-workman occasioned the same.

The fact that a dangerous machine could be safely worked by a careful man, did not remove the liability from the master. Stringham v. Stewart, 100 N. Y., 516.

The evidence in this case discloses that the defendants were contractors in the excavation of a tunnel for the new aqueduct for New York. The shaft had been sunk to the bottom of the proposed tunnel 385 feet from the surface.

The tunnel was extended both ways from the shaft; and the material all came up the shaft.

The men went down and came up in the same way.

The defendant had provided a bucket which was let down from the surface, and four or five men rode in the bucket at once.

Some twenty feet above the bucket there was what is termed a follower, being cross pieces of timber which descended with the bucket, as this follower was confined in a frame or groove on the sides of the shaft. The bucket was not attached firmly to the follower, but was so made that if the follower for any reason failed to descend by its own weight, the bucket would continue, because the rope which went through the follower moved independently through an aperture in the follower. If the follower descended, the purpose of it was to confine the sway of the bucket to a sway of twenty feet, instead of the possible sway from a depth of over three hundred feet.

On the occasion in question the follower got caught, did not follow, and, after the bucket left it, which should have supported it, it fell and detached the bucket from the swivel support by breaking the rope.

Four persons were killed at once, and the plaintiff was permanently injured.

The appliance was neither reasonably safe or prudent.

The follower should have been attached to the bucket in some way so that when the follower stopped the car would stop. This would give notice at the top of the shaft to stop lowering the bucket and the attachments until the obstruction was removed.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    Seth E. Elligood, Resp’t, v. Gyula De Festetics, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Pleading—What a sufficient averment of fraud — Code Civ. Pro., § 549—Order of arrest.
    From the complaint it appeared that the defendant sold to the plaintiff §600 worth of goods to he delivered in the future and received the money for the same. The complaint avers that when the defendant received the money he did not intend to deliver the property as he agreed to do and intended to defraud the plaintiff out of the money, and well knew that he would not deliver the same. Held, that the complaint averred a fraud under Code Civ. Pro., § 549. And that an order of arrest was properly granted.
    Appeal from an order of arrest granted in favor of plaintiff upon the complaint and affidavit of plaintiff.

      Smith Lent, for resp’t; Samuel Watson, for app’lt.
   Barnard, P. J.

The complaint contains a sufficient allegation of facts which' prove, • if true, that the debt was fraudulently contracted.

The defendant, from the complaint, sold to the plaintiff $600 worth of goods to be delivered in the future, and received the money for the same. When he received the money, the complaint avers, that he did not intend to deliver the property as he agreed to do and intended to defraud the plaintiff out of the money and well knew that he would not deliver the same.

Applying the usual rule of pleading which receives a statement of facts and not of the evidence of facts, the complaint avers a fraud under section 549 of the Code. The defendant received the plaintiff’s money under a promise which he never intended to keep and which he made for the sole purpose of getting the money.

The affidavit sets forth the evidence of the facts and from the peculiar nature of the same, it is manifest that the complaint could not be more specific in the averments of fraud.

The defendant was about to start a new business. The plaintiff was to be his agent to sell the manufactured article. He was to take the same at a price and sell for an advanced price. The defendant applied to the plaintiff stating that he was about ready to commence manufacture but that he needed a machine for making tile, which was the article to be manufactured, and to enable him to get it he asked the plaintiff to let him have $600 and that he would then be able to furnish him, plaintiff, with $600 worth of tile, in six weeks.

The money was under these circumstances advanced. No washing machine was bought. No tile were made and the money was retained by the defendant.

If the jury from these facts find an intention to obtain the money on a false promise intentionally made, for the purpose of getting it, the action will be proven.

The order should therefore be affirmed with costs and disbursements.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    Joseph Annin, Resp’t, v. George Wren and William C. Wren, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887).

    1. Patents of one employed to invent belong to employee.
    The special service of .inventing, under a special employment to invent, gives the master the servant’s inventions which result from that service.
    2. Same—Jtjbisdiction of state coubt.
    While W. 0. Wren was drawing a salary for his services in inventing wheelbarrows and trucks for the plaintiff, he secretly made application for letters patent on an invention in trucks, and assigned the rights to the letters to George Wren, who knew plaintiff’s rights and the circumstances on which they were based. George obtained the letters in his own name, and this suit was brought to compel him to assign the same to plaintiff. Held, that the state court had jurisdiction to adjudge the matter of the plaintiff's right to this invention; that it was a question of title to a patent under a contract; that the United States courts had no jurisdiction merely by reason of the subject-matter.
    Appeal from a judgment requiring defendant, George Wren, to assign to plaintiff certain letters patent issued on application of defendant, W. C. Wren, covering an invention which equitably belonged to the plaintiff, on the ground that they had been thus disposed of with intent to cheat and defraud plaintiff out of his equitable rights.

      Isaac S. Gatlin, for app’lts; John L. Hill, for resp’t.
   Barnard, P. J.

The proof returned with the case shows that the plaintiff, in 1883 and subsequently, was engaged in the manufacture of iron trucks ana wheelbarrows of sheet iron with iron handles.

This business he had commenced in 1881, and there had been an interval of cessation on account of his ill health. He had expended about $1,000 in developing improvements in them so as to make them of commercial value. In February, 1883, he employed the defendant George Wren at a weekly salary of eighteen dollars, “to apply himself personally to the development of this business,” “to develop the truck and wheelbarrow business, they went under that name with us.”

In the early part of the employment the defendant George Wren was employed upon the wheelbarrows. After being thus employed about a fortnight, he went to developing trucks. Wren and the plaintiff were in constant consultation about the business. Wren was a skillful draughtsman and he made drawings of the proposed improvements. Patterns were made of iron therefrom, so as to manufacture the wheelbarrows and trucks. The design was to get patents for the improvement and engage outside capital in the enterprise, and the patents were expressly to be in the name of the plaintiff.

Considering the relation of the parties and the nature of the employment, it would equitably follow that the patents should belong to the plaintiff, if any were obtained as the result of the joint development of the parties.

The plaintiff was in the business of manufacture, and he employed the defendant George Wren to aid him in devising improvements so as to aid the business. It would be most unreasonable for the employee, under these circumstances, to patent the improvements, and thus destroy the right of the plaintiff to use the result of his and Wren’s invention.

The agreement but carries out what would be the result without it, from the evidence. The defendant George Wren says that the truck inventions were separate and outside of the arrangement. The finding is against this claim, and this accords with the probabilities resulting from the employment. The plaintiff’s business included both, and the subsequent conversation in respect to additional compensation in respect to the truck, from the profits of their sale, has no relevancy to the question as to the title to the patents. In 1884 George Wren made application for a patent for truck improvements and assigned the same to the defendant William C. Wren, who obtained a patent therefor in his own name. This patent equitably belongs to the plaintiff. It was the result of investigation under the employment, and by the agreement belonged to the plaintiff. Burr v. De La Verne, 102 N. Y., 415; 2 N. Y. State Rep., 414.

The assignment to the defendant William C. Wren by his brother was made with the intent to deprive the plaintiff of his title thereto under the agreement. The case is voluminous and an examination of the evidence shows abundant evidence to support this finding.

It was taken with full knowledge of plaintiff’s claim, and could have had no object beyond removing the title from the-defendant, William Wren.

The point is not sustained which questions the authority of this court to pass upon the question presented.

While the validity of an infringement of a patent is not within the jurisdiction of the state courts, questions of title to a patent under contracts, have frequently been entertained. Dewitt v Elmira Co., 66 N. Y., 459; Continental Store Service Co. v. Clark, 100 id., 365.

The judgment should therefore be affirmed, with costs.

Pratt and Dykman, J concur.

Pratt, J.

This is a suit to compel defendant, George Wren, to assign certain letters patent for an invention In hand trucks, issued to him as assignee of W. C. Wren (the alleged inventor, who made application for patent and assigned the right to the letters to said George, his brother). Plaintiff alleges that the invention became his property as the result of a contract, by which W. 0. Wren entered his employment for the special and limited service of inventing wheelbarrows and trucks. The learned trial judge found the special employment and service, and that the invention was perfected during the service; he adjudged that plaintiff was the owner of the property in the invention as the result of an understanding—a part of the contract of employment of or service—that he should be the owner of all inventions made by W. 0. Wren while in the service.

We think this conclusion was clearly right on the merits, Plaintiff had been striving to invent wheelbarrows and hand trucks since 1880. W. C. Wren had assisted him in inventing a wheelbarrow. Overtaken by sickness, he had to give up his plans until about the beginning of 1883, when he resumed his efforts to invent wheelbarrows and trucks, with the purpose of manufacturing and selling them to the trade, provided he succeeded in inventing something that would sell. He had not yet succeeded in perfecting anything.

This work of inventing was the matter in hand in February, 1883. Both parties so understood it. This work of inventing was what plaintiff called “ developing the wheelbarrow business,” that being a phrase covering the work of inventing both wheelbarrows and trucks. This was also clearly understood by both the contracting parties. The invention was perfected during that service. W. C. Wren well knew that Annin expected and believed that his invenventions would be Annin’s property, and knowingly suffered him to remain in that belief, and on that understanding drew and appropriated his salary at eighteen dollars per week, from about the middle of February, 1883, to the end of that year.

About election of 1883, they had a dispute whether or not the "truck invention was Annin’s property, and about some other matters. They submitted it to arbitrators who awarded that all the inventions belonged to Annin. This award covered the truck invention as part of the dispute. Defendant George Wren assisted W. C. Wren in all this and never intimated any personal interest in the truck invention. W. C. Wren accepted and professed acquiesence in this award and induced Annin to rely on his acquiesence, and while relying thereon continued to pay him his salary. But meantime, after the award and acquiesence, while drawing the salary and professing faithful service, W. 0. Wren secretly made application for letters patent and assigned the rights to the letters to George, who all the while well knew Annin’s rights and the circumstances on which they were based. George then obtained the letters in his own name.

The special service of inventing, under a special employment to invent, gives the master the servant’s invention which results from that service. Simond’s Manuel of Patent [Law Ed., 1883], pp. 203, 204. This is also the principle of that part of the decision of Burr v. De La Vergne (102 N. Y., 415; 2 N. Y. State Rep., 414), which relates to the inventions made by De La Vergne alone. The same is true of Annin v. Binney (9 Am. Rep., 10; 107 Mass., 94). Rone of the patent cases are inconsistent with the principle above indicated. Even in Hopgood v. Hewett (11 Fed. Rep., 422; lately affirmed 119 U. S. Rep.) Judge Gresham excepts the case of a special employment to invent. The special service of inventing is the entire scope of the employment. There is no room left within the employment for inventing on his own hook. The servant has no right to think or invent for himself on this particular subject matter in hand. He must get out of such a relation before he can claim the product of his work under such an employment. He cannot carry off both his salary and the only valuable product of his work under such an employment leaving his master with his useless models, the results of his uselessly spent money on tools, machinery, time, labor of self and employees, with only a license or shop right which is not assignable or useful in any way save to himself. Such a resMt would necessarily defeat the whole purpose of the contract and the contracting parties. The cases resulting in mere license were those of general employment; at all events they were not special employments for the limited services of inventing. Plaintiff was so careful to confine this man to this particular work that he made special arrangements with him when he did anything else.

There is no ground for doubting the jurisdiction of this court to adjudge this matter of Annin’s right to this invention as a piece of property wrongfully diverted from him to George Wren, on the theory of a violation of trust relations, and obligations, Hat Sweat Co. v. Reinoehl, 102 N. Y., 167; 1 N. Y. State Rep. 340; S. S. Co. v. Clark, 100 N. Y., 365. See, also, 47 N. Y., 444, 662; 66 id., 459; 1 Am. Rep., 10, 552; 107 Mass., 94; 28 Wis., 594.

_ The federal courts have held that they have no jurisdiction in such cases unless by reason of the citizenship of parties. 99 U. S., 547; 10 How., 99; 20 id., 56; 16 Otto, 613; 1 Clif. 288, 1 Holeness, 317; 4 Blatch. 63; 6 id., 356; id., 565.

The judgment was confined to the power indicated by~ Cont. S. S. Co. v. Clark, 100 N. Y., 335.

The judgment should be affirmed with costs.


text:
    William B. Olmsted, Resp’t, v. The Rochester and Pittsburg R. R. Company et al., App’lts.

      Supreme Court, General Term, Second Department,

      Filed May 9, 1887).

    1. Receiver of railroad—Insolvency proceedings—Debts.
    Where the invalidity of a mortgage given by a certain railroad, consisted' in the fact that more stock was issued than the aggregate stock of the company, the company having obtained the money could not destroy the debt. The debt remained as an unsecured debt, and was properly considered as-such in proceedings for the appointment of a receiver of the corporation as being insolvent.
    3. Same—Evidence of principal office.
    Where the articles of merger of certain railway companies declared that the principal office of Che corporation “ shall be in the city of New York;" the corporation reported to the railroad commissioners that the general office of the company was in New York, and the transfer and stock books, and the accounts of all receipts and disbursements were kept there, and the directors were elected in that office styled in the certificate, the office of the company." ■ Meld, conclusive evidence that the principal business-office of the company was in New York city.
    3. Same—Who competent to act.
    A strong feeling in favor of the action constitutes no objection to a receiver.
    Appeal from an order appointing a receiver of a railroad.

      Hascal, Clark & Vanderpoel, for resp’t; Foster & Wentworth and Wm. B. Davenport, for app’lts.
   Barnard, P. J.

The point taken by the appellant that-the papers do not show insolvency in the defendant’s company, is not well supported by the evidence.

This company is a consolidated company, made up of different corporations, having their situs in different states. Parts of the road are situated in New York and parts of it-in the state of Pennsylvania.

The consolidated company executed a mortgage upon the - road, and that was foreclosed in the state of New York. That judgment resulted in a sale, and the purchaser has entered into possession of the road.

There was a deficiency of over a million of dollars. The-courts of Pennsylvania have decided that this mortgage was. invalid as to that part of the road which is in the state of Pennsylvania.

The Yew York judgment is pending an appeal, and undetermined. It is claimed that if the appellant succeeds, the road is not insolvent, because such a decision will destroy the mortgage debt. It will not do so necessarily, if the judgment in Yew York is reversed and the mortgage held invalid. The invalidity consists in the fact that more stock was issued than the aggregate stock of the company which formed the whole. A company which obtains money by loan could not destroy the debt in that way.

The debt will remain as an unsecured debt. The papers show, therefore, a clear case of insolvency.

The next objection raised by the appellant seems also to-be ill founded. By chapter 373, Laws of 1883, applications for a receiver of an insolvent corporation shall be made to the judicial district in which the principal business office of the company is located at the commencement of the action, or in a county adjoining such district.

The principal place of business is fully proved to have-been in the county of Yew York.

_ By the articles of merger it is declared that “ the principal office ” of the corporation “ shall be in the city of Yew York.” The laws of the consolidated company provide for meetings of stockholders “ at the principal business office of the company in the city of Yew York.”

The corporation reports to the railroad commissioners that the “general office of the company is in Yew York.” The book of transfer, all the stock books, and the accounts of all receipts and disbursements were kept in the Yew York office.

_ The directors were elected in that office, styled in the certificate “the office of the company.”

It appears that there is an office in Rochester where the operation of the road is conducted.

The evidence in favor of the Yew York office being the principal business office of the company seems to be conclusive. The certificate which fixes Yew York as being the place of the principal office, also designates the other offices to be subject thereto—one in Pennsylvania and one in Rochester. The words are: “It shall also have an office in the city of Rochester and one in Brookville, state of Pennsylvania.”

Assuming a principal office in Yew York, there is nothing to justify a change therefrom, disclosed by the papers. It ’ was the same place at the commencement of the action where it had been before.

An objection to the person who is appointed receiver by the order is proper to be considered on this appeal.

The papers are not addressed to the personality of a receiver, and no opportunity has been given to the receiver appointed to meet any charges against him.

The objection suggested is merely that he is too hostile to the corporation and too strong a partisan of the plaintiff’s claim. A receiver must rest on the facts of his case, and a strong feeling in favor of the action constitutes no objection to a receiver.

The order should be affirmed, with costs ..and disbursements.

Dykman, J., concurs; Pratt, J., not sitting.