author: Pryor, J.

text:
    Cyrus Clark, App’lt, v. Proctor H. Andrews et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Assignment for creditors—Fraud.
    A combination between the assignor and a preferred creditor to reserve to the assignor the benefit of a portion of the assigned property or its proceeds is fatal to the validity of the assignment.

      2. Same.
    A secret agreement by a debtor at the time of borrowing money, that the lender should have it back under any circumstances, carried out by a preference of such creditor, will render a general assignment void.
    3. Same—Wages.
    ' Moneys earned by an employee and not collected, but turned into the business of the employer, cease to be wages, and are pot entitled to a preference as such under the statute.
    Appeal from judgment on the decision of the court without a jury. _ _
    _ _ Action by an execution creditor to set aside an assignment for the benefit of creditors.
    The facts sufficiently appear in the opinion.

      Eldon Bisbee, for appl't; George B, Carrington and Uriah W. Tompkins, for resp'ts.
   Pryor, J.

We fully share the anxiety avowed by the learned trial judge to annul this assignment; but we are more fortunate than he in assuring ourselves of sufficient legal ground for the. gratification of our common desire.

On the rendition of the verdict in favor of the plaintiff, the defendant-assignor’s counsel asked and obtained a stay of twenty clays, ostensibly for the purpose of an appeal or new trial But neither was an appeal taken nor a new trial moved. Pending the stay, plaintiff’s counsel was lulled into security.and inaction by .assurances from the attorney of defendant that his means were abundant, and his purpose sincere to pay the debt. Instead, however, of discharging the verdict, four days before the-expiratian of the stay the debtor made an assignment by which, in fact, every penny of his property was appropriated to the benefit of a single creditor; avowing as the motive of the assignment the laudable desire to distribute his assets for the equal satisfaction of all his creditors. It is a question whether’, without more, the assignment be not invalidated. Jaques v. Greenwood, 12 Abb., 234 (Common Pleas); Clark v. Taylor, 37 Hun, 312.

And who was it to whom the debtor thus devoted his entire estate to the deprivation of all other creditors ? A woman whom he represented to be an employee, but whom neighbors regarded as his wife and called by his name; who purchased part of the property at the assignee’s sale, and with whom, shortly after, the assignor resumed business in apparently as good a plight as before the assignment.

And what was the pretended debt thus preferred, in effect, to the exclusion of all other creditors ?

A claim for wages during the entire service of the alleged employee, a period of three years, not a penny of which, though payable weekly, had she ever received or even requested, and the amount of which was the exact sum that in the assignment the assignor stated to be the actual value of his assets ; namely, $750.

Considering the facts of the case, which we only sketch in outline, and bearing in mind the intimate and confidential relations of the assignor to the favored creditor, is it possible to resist the conclusion of a combination between them to reserve to the assignor the benefit of the assigned property or its proceeds, in fraud of the other creditors ? That alone would suffice for the condemnation of the assignment. Elias v. Farley, 3 Keyes, 398; Berry v. Riley, 2 Barb., 307; Grover v. Wakeman, 11 Wend., 187 ; Haydock v. Coope, 53 N.Y., 68.

True, the assignor and his favored friend protest the innocence of their acts and intentions; but of what avail is the disclaimer in view of the glaring contradictions in their testimony ? The assignor swears that while he and the woman whom he prefers were living together, he lodged and boarded her; but this she indignantly denies, and declares that she lodged and boarded him, and he subsequently admitted the incorrectness of his statement. In the answer and in his testimony he says he made preferential provision for the claim of Underhill & Clinch, because they lent him the money in an emergency; while in his schedule he swears that the debt was for merchandise bought. He testifies that he allowed Mrs. Irwin no more for wages because “she did not ask it” and because “she wanted to be a little lenient; ” and then he swears that he had no talk with her in advance about the assignment, and she says that she did not know of it until made. In the assignment he swears that the amount due Mrs. Irwin for wages was $750 ; in his schedule he swears that it was only $644; a reduction obviously made to leave a margin of assets for the costs and expenses of the trust, at the hazard, otherwise, of exposing the assignment to defeat Ho wonder the learned trial judge declared that the testimony of the assignor -was “ of such a nature that but little reliance could be placed upon it.”

The learned trial judge concluded that the evidence created nothing more than a vehement suspicion of fraud in the assignment ; but with us it is persuasive of fraud beyond a rational doubt. Fraud in such a transaction is seldom shown by direct and positive testimony; but circumstantial evidence suffices to prove the fact if it appear the more probable inference.

But in our judgment the transaction of the assignment is vitiated by other infirmities still more clearly fatal to its validity.

In subordination to the provision for Mrs. Irwin, Underhill '& Clinch were preferred to the amount of $150. We have already adverted to the assignor’s contradictory stories of this alleged indebtedness. But, be it valid or otherwise, the assignor testifies that when he borrowed the money of Underhill & Clinch, ho promised them that they should have it again in any event. “I preferred them because I had borrowed money of them, and was bound to pay them; they helped me on a pinch. Payment was not quite due. That was borrowed money, and I consider that sacred. I promised that they should have their money under any circumstancesmeaning, beyond question, that in the event of insolvency he would secure their claim in preference to less “ sacred ” obligations.

In National Park Bank v. Whitmore, 40 Hun, 499, 502; 2 St. Rep., 87, the general term of the supreme court in this depart-meat condemned an assignment because of a promise by a debtor to protect his creditors, if necessary, by a preferential provision ; ruling that “ a debtor will not be permitted at or before the time the debt is created, by a secret, tacit agreement or understanding-with one or more of his creditors to make an arrangement in reference to his property by which their debts shall in case of emergency be preferred under any and all circumstances.'’ Andr the same point was adjudicated by Gresham, J., of the United States circuit court, in Smith v. Craft, 11 Biss., 340. Plainly these authorities apply to the case at bar, and avail to avoid the-assignment in controversy.

But the assignment is bad for a still more decisive reason.

It is extremely questionable whether Mrs. Irwin, in securing-whose alleged wages the entire estate is absorbed, was an “ employee ” in the sense of the act of 1886. She associated with the assignor upon terms of equality, if not of ascendancy; she went and came of her own volition; making excursions to Florida without so much as asking leave of her alleged employer; he expressly disclaimed all command of her: “ I was not her boss; she was not under my control; she could go if she wanted to; ” she put money in the business, and she presided over their domestic establishment. Observing the evident object of the statute, namely, the protection of needy dependents, was this woman within its beneficent policy ? Lang v. Simmons, 64 Wis., 525.

Assuming, however, that Mm. Irwin, so situated, may still demand. the protection of the statute, we confidently affirm that her claim was not for money due as wages or salary.

The statute prescribes that “ the wages or salaries actually owing to the employees of the assignor at the time of the execution of the assignment, shall be preferred before any other debt.”

Now, for the entire term of her so-called employment, three-years, this preferred creditor never drew a penny of her so-called wages or salary. “ I have never drawn any of my salary; I let it go into the store, because I wanted to increase the business instead of drawing my salary; I had my wages turned into the business.”

Here, in legal effect, was a loan of the money due for wages or salary; and her claim upon the assignor was for money lent. The effect of the transaction is precisely the same as if she had drawn the money and then returned it to him, namely, to convert, the claim for wages into a debt for money lent Jerome v. Morgan, 13 Daly, 225 ; Spencer v. Hodgman, 33 St. Rep., 33 ; Freeman v. Brittin, 2 Harr. (N. J.), 206; Payne v. Gardiner, 29 N. Y., 167-168.

Thus on the false pretense of a debt due to Mrs. Irwin for wages or salary, the assignor wrested every dollar of his property from the grasp of other creditors; and as the inevitable effect of upholding the assignment would be to hinder, delay and defraud those creditors, it is necessarily void. Coleman v. Burr, 93 N. Y., 17, 31; Manning v. Beck, 54 Hun, 102 ; 26 St. Rep., 483; First Nat. Bank v. Bard, 59 Hun, 529 ; 37 St. Rep., 275; Stafford v. Merrill 62 Hun, 144; 41 St. Rep., 230; Beatty v. Soman, 6 St. Rep., 669 ; Matter of McCollum, 10 Daly, 72.

Judgment reversed and a new trial ordered, costs to abide event.

Daly, Ch. J., and Bischoff, J., concur


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    Charles J. Hartman, Resp’t, v. The Morning Journal Association, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. New trial—Surprise
    A defendant in an action for libel cannot claim to be surprised by evidence as to the falsity of a statement in one of the articles complained of, .vliere it has alleged that such article was true in each and every particular, and thus tendered the issue of the truthfulness of such statement.
    3. Same—Newly discovered evidence.
    The testimony of a witness known to the defendant before the trial and whom he could not find to subpoena is not newly discovered evidence.
    Appeal from an order made at special term denying defendant’s motion for a new trial upon the ground of newly discovered evidence.

      John B. Dos Bassos, for def’t; Louis J. Grant, for resp’t.
   Bookstaver, J.

In the view we take of this case, it is no necessary to determine whether Beers v. Root, 9 Johns., 264, is now the law of this State. The motion was made under § 1002 of the Code of Civil Procedure for matters outside the record. The principal grounds for such motions have • been generally regarded as three, to wit, newly discovered evidence, surprise and misconduct of the jury. The latter ground is not raised by the moving papers, as no misconduct is charged. It must therefore rest upon surprise or newly discovered evidence. We do not think it can be successfully based upon the ground of surprise, for in the complaint and accompanying schedules it was expressly set forth that the plaintiff had been libelled by the statement in one of the articles published in defendant’s paper as follows: “ Mr. Hartman claims that he has not had a cent out of it; there is a stack of his I. O. U’s in the office a foot high where he has taken the money collected and put it in his pocket, and put an L O. 17. in its place.” The seventh paragraph of the answer in substance alleged that the schedules attached to the complaint and marked A, B and 0, in the latter of which this is contained, are and each of them was, at the time of the publication of the same, true in each and every particular. The defendant itself, therefore, tendered the issue of the truthfulness of this statement when it served its answer, and it should have anticipated that the plaintiff upon the trial would have given testimony as to so grave a charge, and had there been an intention to justify it, it ought to have prepared its testimony in order to do so. The papers show conclusively that the statement in regard to this matter was obtained by one of defendant’s reporters from one of the very persons whom it is now claimed has only just been secured as a witness; but it knew from the beginning of the action that he and the other witnesses now produced would be needed; the defendant by its reporters or others must have been in communication with James, otherwise-known as Boyce, at the time that the alleged libel was prepared, and it was their duty to have known his whereabouts at all timesafterwards and to have kept him within reach, or if through any inadvertance this was not done, then they ought when the case was called for trial, to have stated their inability to procure their witnesses and asked an adjournment for that purpose, instead of which the action was on the day calendar for October 1st and each succeeding day until the 9th of that month, when the trial began and defendant’s counsel answered “ ready ” each day, and made no request whatever for an adjournment for any cause, nor did he make such request after the trial was commenced and during its continuance.

For the reasons before stated it cannot be successfully urged that the matter was newly discovered evidence. The testimony of a witness known to the defendant before the trial and whom he could not find to subpoena, is not newly discovered evidence. Ranous v. Trageser, 1 W. Dig., 25; Hernstein v. Fleming, id. 401; Chamberlain v. Lindsay, 1 Hun, 231. The evidence in question must, we think, or ought to have been, known to the defendant’s officers before, the trial; they ought to have been prepared to have produced the witnesses to give it. Such evidence is not newly discovered. Hooker v. Terpening, 29 St. Rep., 818. It is not sufficient to say that they did not know that one of the witnesses upon whom they relied was going under an assumed name; they knew him personally, derived a large portion of their information from him, and it was their duty to have known where the author of such grave charges could be had when needed; Or, as before said, if they lost track of him, then they should have applied for an adjournment It appears to us that the defendant, voluntarily took the hazard of a trial without witnesses which it knew of and should have had, and after being defeated, it would be putting a premium upon litigation to grant a new trial on the-grounds urged.

The order should, therefore, be affirmed, with costs.

Bischoff, J., concurs.


author: Pryor,

text:
    Joseph J. Kittel, Resp’t, v. Thomas J. Callahan, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Partnership—Guaranty—Evidence.
    Declarations of a partner are not evidence of authority to give a guaranty in the name of the firm,
    2. Same—Ratification—Statute of frauds.
    A paroi assent by the other partner to abide by the guaranty is a ratification of the part ier’s act, and is not void under the statute of frauds, as by the adoption of the signature in that manner the signature becomes-that of the assenting partner and the guaranty his contract.
    S. Triad—Motion to dismiss.
    A refusal to dismiss is not error where the motion is made in behalf of two or more defendants jointly, if the ruling is correct as to one of them.

      Appeal from judgment on trial by referee.
    Action on a guaranty against appellant and one Gartlan, constituting the firm of Callahan & Gartlan. The guaranty was for the accommodation of the maker of a note, and was endorsed, on the note in the firm name by Gartlan. Judgment went against both defendants, but Callahan alone appeals. Defense, that the guaranty did not bind Callahan, because, to the knowledge of plaintiff, beyond the scope of the partnership business.

      William Settle, for app’lt; John A. Straley, for resp’t.
   Pryor,

Technical objections are interposed to a review of the judgment; but as we are of opinion that it is unimpeachable on the merits, we prefer to entertain the appeal.

The power of a partner, implied in the contract of partnership, is limited to transactions within the scope of the partnership business. It results, therefore, that one partner has no authority, merely by virtue of the partnership relation, to bind the firm by a contract of surety or guaranty for the accommodation of a stranger. He has no right to be generous at the expense of his associates. Laverty v. Burr, 1 Wend., 529; Stall v. Catskill Bank, 18 id., 466; Fielden v. Lahens, 2 Abb. Ct. App. Dec., Ill; 3 Kent, 47.

Involved in this principle is the further proposition that where-the fact that the firm name is endorsed or signed by a partner for • accommodation, or by way of surety or guaranty, is apparent upon the face of the paper, or implied in the circumstances of the transaction, or actually known to him who would avail himself of such guaranty, surety or endorsement, the contract cannot without: more be enforced against the firm, Bank of Tennessee v. Saffarrans., 3 Humph., 597; and in such case it devolves upon the plaintiff to rebut the presumption of want of authority by showing the express or implied assent of the other partners to the use of the firm name. Hendrie v. Berkowitz, 37 Cal., 113; N. Y. F. Ins. Co. v. Bennett, 5 Conn., 577; Foot v. Sabin, 19 Johns., 155; Rust v. Hauselt, 41 Super. Ct., 467; Rolston v. Click, 1 Stew., 526.

Proof of previous authority is, of course, sufficient to fix the firm with liability ; and since subsequent ratification is -equivalent to prior command, after assent is equally effectual to bind the firm. Butler v. Stocking, 8 N. Y., 408; Duncan v. Lowndes, 3 Camp., 478; Sweetser v. French, 2 Cush., 309.

In the case at bar the plaintiff is conclusively presumed to have had notice that the guaranty was beyond the scope of the partnership business; but he relies upon proof of previous authorization as well as subsequent ratification of the guaranty by the defendant. Was the proof sufficient?

Counsel for respondent assumes that Gartlan’s admissions are evidence óf his authority; but the rule is familiar that an agent, and a partner in relation to his copartner is but an agent, cannot establish his authority by his own mere declarations. The argument to the contrary revolves in a vicious circle ; he is a partner because he says so, and what he says is conclusive because he is a partner. Precarious, indeed, would be the fortunes of a firm if the power of a member to bind it were commensurate not with his real authority, but with the possibilities of his claim of power.

The case exhibits no evidence of authority in Gartlan to give the guaranty in behalf of the firm.

As to ratification, however, the proof is sufficient to show an adoption and confirmation by defendant of the act of his copartner. Butler v. Stocking, 8 N. Y., 408; Commercial Bank v. Warren, 15 id., 577.

But, appellant contends that his paroi assent to abide' the guaranty is a promise to pay the debt of another, and so is void within the statute of frauds because not in writing, and because without apparent consideration. The answer is, that upon the adoption of the firm signature by Callahan, it became his signature and the guaranty his contract; and that the guaranty imports “ value received ” on its face.

The referee, therefore, committed no error in refusing to dismiss the complaint; but if otherwise, the error is not available; because the motion and the exception to its denial were in behalf of Callahan and Gartlan jointly; whereas, in any event, Gartlan was bound by the guaranty no matter how absolutely without authority. Fielden v. Lahens, supra. There should have been a several motion and exception in behalf of defendant Callahan. Bosley v. Nat. Mach. Co., 123 N. Y., 550; 34 St. Rep., 277; Murray v. Usher, 117 N. Y., 542; 27 St. Rep., 928; Markham v. Washburn, 18 Suppl., 355; 45 St. Rep., 683.

The rule enunciated by the authorities just cited disposes of the only plausible point upon the admission of evidence, namely, the introduction of statements of Gartlan in the absence of Callahan to affect him; a several objection and exception should have been taken by Callahan.

Judgment affirmed, with costs.

Bookstayer, J., concurs.


author: Dwight, P. J.

text:
    Gertrude Dean, by Guardian, Resp’t, v. Miners Raplee, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Kape—Evidence.
    In an action to recover damages for a series of indecent assaults, with rape, alleged to have heen committed on plaintiff during a period of eighteen months, where no outcry or complaint was made at the times of the commission of the offenses charged, it is not error to reject evidence 'of declarations of plaintiff made more than three jyars thereafter and after she had been living for that period with friends in another state.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury at the Wyoming circuit, and from an order of the Brie special term denying the defendant’s motion for a new trial on a case and exceptions.

      I. Sam Johnson, for app’lt; J. L. Woodworth, for resp’t.
   Dwight, P. J.

The action was to recover damages for aseries of indecent assaults, with rape, alleged to have been committed upon the person of the plaintiff, during a period of about eighteen months while she, a girl of fourteen and fifteen years of age, was living in the family of the defendant. His house and farm buildings were just across the highway from the home of her grandmother and aunt, with whom she had lived until she went to the defendant’s. The acts of rape, as testified to by the plaintiff, were most of them committed in one or another of the defendant’s barns, which were in plain sight and easy hearing distance from the defendant’s house and that of the plaintiff’s grandmother; but there was no outcry at the time, and no complaint either to the defendant’s wife or to her own relatives during the continuance of the outrages, except that, after what she describes as the third violation of her person, she told her aunt that the defendant had kissed her, and, possibly, that he had taken some other slight liberties with her person. Certain it is that the disclosure was not so full or so serious as that her relatives hesitated to permit her to return after a few days to the defendant’s house, and resume the same relations as before.

It would have been quite competent and material for the plaintiff to show, if she could, that she did disclose to the fullest extent, and bitterly complain of the alleged abuses immediately or at the earliest opportunity after their perpetration. To that extent in a case of actions for rape, whether civil or criminal, an exception is made to the general rule against hearsay testimony. So gross is the outrage, and so shocking to the sensibilities of a virtuous woman, that it is expected the innocent victim will make quick complaint of the wrong to which she has been subjected. But the same rule which admits the evidence of such immediate disclosure and complaint, as positively excludes evidence of that which is unnecessarily remote. People v. O'Sullivan, 104 N. Y., 486; 5 St. Rep., 702; Baccio v. People, 41 N. Y., 265. In the first of these cases the opinion of Judge Earl covers the whole ground, and demonstrates very clearly the rule in both its bearings, and the reason of it. He quotes from Hale’s Pleas of the Crown (Vol. 1, p. 632) the saying: “ The complainant must make fresh discovery and pursuit of the offense and the offender, otherwise it carries a presumption that her suit is but malicious and feigned.” He examines many cases, and concludes: It will be seen from these authorities that the very reason upon which the rule is based for the reception of such evidence requires that the disclosure should be recent, tfnd made at the first suitable opportunity.” In that case the delay to make the disclosure was about eleven months, and, after considering the causes which might operate to excuse delay, and the circumstances of that case, the court held that the delay of eleven months was so great and so unjustifiable, that as a matter of law the disclosure should have been excluded as evidence, and that it was, therefore, error to receive it

In this case no disclosure of the facts now testified to by the plaintiff, nor of anything of the kind, was made until after more than three years after the last of the alleged outrages in question. In the meantime the plaintiff had become nineteen years of age and upwards, she had been three years continuously living with friends in another state, removed from the influence or fear of the defendant, and no circumstances are shown as existing during that time which can so excuse the delay as to render the fact of disclosure after that time admissible in evidence in her own behalf. Not that delay for any length of time to make the disclosure would be conclusive against the truth of the charge, but that it is only disclosure made at the earliest suitable opportunity of which evidence will be received in confirmation of the charge.

Under the doctrine so strongly enforced in the case of O’Sullivan, supra, and supported by the cases there cited, we can have no doubt that the court erred in this case in overruling the defendant’s objection to evidence of a declaration of the plaintiff made more than three years after the wrong complained of, and only shortly before her action was commenced.

And for .that error the judgment and order herein should be reversed.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event

Macomber and Lewis, JJ., concur. .


author: Lewis, J.

text:
    The People ex rel. The Delaware, Lackawanna & Western Railroad Co., App’lt, v. Alexander Reed et al., Assessors, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Taxes—-Railroads—Leased road.
    A domestic railroad corporation leased its road for the term of its corporate existence to defendant, a foreign corporation, by a lease which provided that the lessee should pay the taxes and assessments on the leased property. Held, that said property was properly assessed to defendant, and not to the lessor or as non-resident lands.

      %. Same—Basis op assessment.
    ■ The referee to whom the question of value was submitted took as the basis the rentals received by the lessor, which he divided by the length óf the leased road, capitalized the amount so obtained and made proper deductions for the cost of equipment, improvements, etc. Held, that the method of arriving at the value of the property was correct.
    Appeal from a final order and judgment entered upon the decision of the supreme court at special term, in the county of Livingston, September 12, 1891, dismissing upon the merits a writ of certiorari, issued upon the motion of the relator to review an assessment of the real property occupied by the relator in the town of York, Livingston county, New York.
    The appeal also brings up for review several intermediate orders.

      Charles J. Bissell, for app’lt; J. B. Adams, for resp’ts.
   Lewis, J.

This is a proceeding by the relator to review, an assessment of so much of the railroad known as the Delaware, Lackawanna & Western Railroad Company as is situated in the town of York, county of Livingstom

The assessment sought to be reviewed was for the year 1890; the assessed valuation being $174,960.

It was duly referred to a referee to take evidence and report to the court with his opinion, first, as to the actual value of the real property assessed to the relator in the town of York, and, second, as to whether the relator’s property was assessed at a higher proportionate valuation than the other real and personal property in the town of York, and. if so, whether the relator has sustained injury by reason of such unequal assessment.

Upon the report of the referee the issues were brought to trial at a special term of the supreme court in the city of Rochester, and the court having thereafter duly made and filed its written decision-thereon, dated June 29, 1891, wherein it was found as facts that the actual value of the real property which was occupied by the • relator in the town of York in 'the months of June and July, 1890, was the sum of $624,482, and that such property was not assessed at a higher proportionate valuation than the other real and personal property in the town for that year, it was adjudged that the writ of certiorari be dismissed.

The relator appealed to this court and alleges as the grounds of error, first, that the assessment directly and personally to the relator was without jurisdiction and the assessment is void.

The New York, Lackawanna & Western Railway Company is a corporation organized under the laws of the state of New York. It constructed and equipped the railroad in question, which extends from the city of Binghamton to the city of Buffalo, and when constructed and equipped the entire road, including the real estate, superstructures, locomotives, rolling-stock, franchises, and in short everything pertaining.to a fully equipped and furnished railroad, was leased by said corporation to the relator, by a written lease dated October 2,1882 for the full term of the corporate existence of the lessor, and during the full term of any and all renewals of the corporate franchise that might at any time thereafter be made.

The relator agreed to operate and manage the road during the life of the lease, and pay to the lessor certain rentals therein provided for, and, in addition thereto, the relator agreed to pay and discharge during the life of -the lease all taxes and assessments levied or imposed upon the leased property. The relator took possession of the leased property, and it thereupon became a part of its great system of railroads, and at the date of the assessment complained of, the relator was in the full possession of the entire road including the portion thereof in the town of York.

The New York, Lackawanna & Western Railway was evidently organized for the purpose of constructing and equipping the road, with the expectation and intention when that was accomplished of executing the lease mentioned.

The relator contends that as the New York, Lackawanna & Western Railway is a domestic corporation organized under the laws of this state, and the owner of the road, the assessment should have been made against that company and not against the relator, a corporation organized under the laws of the state of Pennsylvania, and operating the railroad solely by virtue of a lease thereof, and contends that the relator was in no sense a resident either of the town of York, or the state of New York, and that the assessors had no jurisdiction to assess this property directly to it and thereby create and charge it with a personal liability for tile payment of the tax.

If both companies were residents of the town of York at the time the assessment was made, it was proper to assess either; if the owner did not reside in the town, and the occupant did, the assessment should have been to the occupant; if neither of them resided in the town, the property should have been assessed as non-resident lands. Stewart v. Crysler, 100 N. Y., 382. The relator contends that the New York, Lackawanna & Western Railway, being the owner of the road in question, was for the purposes of taxation a resident of each town and county through which the road passes; and we are referred to the case of the Buffalo & State Line R. R. Co. v. Supervisors of Erie County, 48 N. Y., 93, as an authority holding that doctrine.

. That rule, however, applies only in cases where the corporation is by its agents occupying and operating the road, as stated by Earl, Commissioner, in 48 N. Y., 104. “ A corporation for many purposes lives, moves and has its being in its agents and wherever they are in possession of its real estate, carrying on its corporate business, it may be supposed to exist and reside without departing from the legal precedents or violating the spirit or letter of the law.” The New York, Lackawanna & Western Railroad Company’s principal place of business was in the year 1890, and still is, the city of Binghamton, New York.

It was not at that time operating the road; had no agents in the town of York, and therefore, under the rule above referred to, was not a resident of that town.

The relator was through its servants and agents at the time the assessment was made carrying on its corporate business in that town, and was in the possession of the property assessed.

If its being a foreign corporation precludes it from being a resident of the town of York, then the property should have been assessed as non-resident lands.

While it is true the relator was incorporated under the law's of the state of Pennsylvaina, it was operating the railroad in question located in this state.

While a natural person can reside in but one place at a time, it is, as we have seen, different with a corporation.

It may for some purposes exist and be a resident in different places at the same time, as stated by Earl, J., in 48 N. Y., supra. “ While corporations in their general aspect are mere ideal existences, without body or soul, yet they will be considered inhabitants, residents, citizens when the general spirit and purpose of the law require it.”

The relator to all intents and purposes, so far as the management and control of the property and franchises of the railroad, was a resident owner and occupant of the property assessed.

It was in the same sense and for the same reasons a resident of the town of York that the New York company would have been a resident of that town had it been then operating the road.

Where the owner does not reside in the county in which the land assessed is situated, the same mode of assessment is pursued without regard to whether he be a resident of this or of some other state.

We think the relator should be held for the purposes of taxation to have been a resident of the town of York, and that the assessment was properly made.

To hold otherwise would lead to great embarrassments in the collection of taxes for the support of the government

If, under the circumstances, the property of the company in the town of York must be assessed as non-resident property, it would practically result in the authorities being unable to collect the taxes.

Giving the construction we have to the statute works no injustice to the relator, for whether the property be assessed to it or to the Hew York, Lackawanna & Western Bailway, the relator must ultimately pay any and all taxes lawfully assessed upon the property in question.

The second point made by the appellant is that the finding of the court upon the question of the value of the relator’s real property in the town of York was based upon erroneous considerations, and that the finding docs not represent the true value of the relator’s real property.

The hearing before the referee took a very wide range; the testimony taken was very voluminous.

It was derived almost entirely from witnesses called by the relator.

After being put into narrative form and evidently much condensed, it covers more than 400 printed pages.

. With a view of establishing that the assessment was unequal, the relator called witnesses to testify as to the value of a very large proportion of the farms in the town of York; the quality of their soil, the kind and condition of the improvements, were in great detail .investigated.

Many citizens were called and subjected to searching examinations as to their personal property, including their securities, their household furniture, etc., with a view of showing what proportion of personal property in the town had been assessed.

The taking of the testimony before the referee extended over a period of seventeen months

After taking this large mass of testimony, the referee adopted a very simple and obviously correct method of arriving at the value of the property in question.

The property assessed formed a part of a great railroad.

To assess the portion of it passing through the town of York, consisting of a narrow strip of land, with its ties, rails, bridges, depots, etc., ignoring the fact that it formed a part and portion of the entire system of a great railroad, would have been very absurd.

Had the assessments through the entire length of the road been made upon that theory, the assessed valuations of the property would aggregate but a nominal sum and would result in the road, which as a whole is worth many millions of dollars, practically escaping taxation.

Inquiries as to the value of the land for farming purposes afford very little, if any, assistance in the inquiry. .

There are many embarrassments and difficulties in applying the usual and familiar rules of assessing property to railroads.

Railroad property is of a somewhat anomalous character.

The courts have approved in assessing railroad property of resorting to the method of estimating its value by its earning capacity, and the situation of the road in question is exceedingly favorable for the adoption of this rule.

The road is owned by the New York, Lackawanna & Western Company.

It is .occupied by the relator, the owner receiving rents for the use of the property.

The lease secured to it a permanent rental without any probability of decrease in the rent in the future, but a strong probability of an increase.

Under such conditions the rentals would seem to furnish a satisfactory criterion for fixing values,

The referee ascertained from." the reports to the board of railroad commissioners the rentals the owner had been receiving for the period of four years next preceding the year 1890, and found that they amounted during that period, annually, to the sum of $1,470,000, and from the same source learned that for the year ending June 80, 1890, it received $1,487,333.33.

By dividing that sum by the length of the leased road he found the average rental represented by each mile, which sum he capitalized at six per cent, and after making proper deductions for the cost of equipping the road, the value of wharfage, cattle and coal yards, coal trestles and the amount of bonds and mortgages for terminal improvements, he reported that in his opinion the portion of the road in the town of York was-worth $624,482.

The special term adopted his conclusions as the, most feasible and satisfactory meanh of arriving at the value of the property. * There was much more testimony taken, bearing as we think very remotely upon the questions under investigation.

There was sufficient evidence to sustain the findings. If, as contended by the relator, the referee was not required to make special findings of fact, that he did so does not concern the relator.

The very onerous and important duties performed by the referee were for the purpose of aiding the court in deciding the questions before it.

The court was not bound to adopt the findings of fact made by the referee.

We have examined the exceptions to the admission and rejection of evidence argued in the appellant’s brief. Had a jury been the tribunal passing upon the questions, the exceptions might be worthy of some consideration. But considering the nature of the inquiry and that the evidence was taken for the information of the trial court, and not finding that any evidence was rejected which, was material to the subject under investigation, we find nothing in the exceptions calling for a rehearing of the matter.

The judgment and order appealed from should be affirmed, . with costs.

Dwight, P. J., and Macomber, J., concur. ,


text:
    The People, Resp’ts, v. James Hughes, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Extortion—Penal Code, § 553.
    A threat to injure and destroy the business of a person unless a sum of money is paid, is a threat to do an injury to property within the meaning of the statute.

      (People v. Barondess, 45 St. Rep., 248, followed.)
    3. Jury—Challenge.
    Each juror was sworn as he was accepted. A short time after one had been sworn, and after defendant had exhausted his peremptory challenges, counsel for the People requested permission to peremptorily challenge him, stating that he had just learned matters leading him to suppose that the juror was not satisfactory. Permission to do so was grantee, notwithstanding an objection that this could only he done by permission of the court, and in its discretion, which could not he exercised unless some other ■case is made than the oral statement of counsel. No claim is made that the juror selected in his place was not competent and proper, or that defendant’s rights were injured otherwise than that such juror was improperly discharged. Held, that no error was committed.
    Appeal by the defendant James Hughes from the judgment of the supreme court, entered on a conviction after indictment for extortion, on the 9th day of June, 1891.

      John Van Voorhis, for appl’t; William F. Cogswell, for the People.
   Lewis, J.

The defendant was convicted at a court of oyer and terminer held in Monroe county, upon an indictment charging him with having feloniously and extorsively obtained from Levi Adler and others, doing business as manufacturers of, and wholesale ■dealers in clothing in the city of Rochester, with their consent, the sum of $1,000.00, such consent being induced by the wrongful use of fear on the part of the defendant, induced by a threat made by the defendant to the said firm to do an unlawful injury to their property, that is to say, to injure and destroy the business of them, the said Levi Adler and others, doing business as aforesaid, and to prevent and hinder them from carrying on the same, contrary to the form of the statute, etc.

The defendant was sentenced to imprisonment in the Monroe county pententiary for the term of one year. The principal question litigated upon the trial and argued upon this appeal was whether the injury to the business of the said Levi Adler and others was, within the meaning of the statute, an injury to their property. Since the argument of this case in this court, this precise question has been decided adversely to the defendant’s contention by the court of appeals in the case of The People v. Joseph Barondess, 45 St. Rep., 248. The commission of the crime by the defendant was so clearly proven as to leave no manner of doubt as to his guilt, and unless errors were committed upon the trial entitling him to a new trial, the judgment must be affirmed. A very large proportion of the defendant’s very numerous exceptions were taken upon the assumption of his counsel that the organization known as The Knights of Labor (of which organization the defendant was at the time of the commission of the offense charged against him master workman), in. some way had the right to interfere in the business of the firm of L. Adler Brothers & Company, and dictate as to whom they should employ in the prosecution of their business.

Believing, as we do, that this claim has no foundation in justice or in law, the exceptions of the defendant having reference-to that question are, we think, without merit. The only exception which merits discussion is one taken by the defendant to the ruling of the court allowing the prosecution to exercise a peremptory challenge to the juror William Bosenbauer. The practice was adopted, in empaneling the jury, of examining each juror as he was called, and if found competent, and he was not peremptorily challenged, he was then sworn, and took his place in the jury box.

Mr. Bosenbauer was called, was challenged and examined. The challenge was overruled by the court, and he was thereupon sworn as juror number eleven of the panel. Three other jurors were then called respectively and challenged, and the challenges-were sustained by the court.

Another juror was then called; he was challenged; it was not sustained, and he was thereupon challenged peremptorily by the defendant. The exercise of this challenge exhausted all of the defendant’s peremptory challenges. The People had not then used all of their peremptory challenges, and thereupon, and before any other jurors were -called, Mr. Baines, counsel for the People, stated to the court that he desired to interpose a peremptory challenge to one of the jurors who had been sworn and passed into the box, stating as a reason that matters had come to his-knowledge since th'e juror was sworn leading him to believe that the juror was not satisfactory. “ Counsel for the defendant objected upon the ground that after a juror had been sworn he cannot be challenged peremptorily, except by the permission of the court, and in the discretion of the court, and that that discretion ought not to be exercised, and cannot be exercised, unless some case is made other than the oral statement of counsel. It cannot be exercised upon the bare statement that counsel has learned something, without stating what he has-learned. Counsel also objected that the request was not made until after the defendant had exhausted his peremptory challenges. The court stated that Mr. Baines might exercise his right of challenge. Mr. Baines, counsel for the People, then challenged William Bosenbauer, who had been sworn in as juror number eleven. Defendant’s counsel excepted to the ruling of the court permitting the juror William Bosenbauer to be challenged peremptorily. This juror then left the panel.” Several other jurors were thereafter called, and a sufficient number-of jurors were obtained to complete the panel, and the trial proceeded. It is not suggested that the juror who took the place of Mr. Bosenbauer was not in all respects a competent and proper person to act as a juror, and it is not claimed that the defendant’s rights were injured by Mr. Bosenbauer’s being excused, otherwise than that he was improperly discharged, and that it was the defendant’s right to have him sit as one of the panel. It is provided by § 684 of the Code of Criminal Procedure that, “ neither a departure from the form or mode prescribed by this Code in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid unless it have actually prejudiced the defendant or tend to his prejudice in respect to a substantial right.”

Section 542 is as follows: “ After hearing the appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” Had the information reached the district attorney a few minutes earlier, and before Mr. Bosenbauer was sworn as a juror, he could have challenged him peremptorily without giving any reason for exercising the challenge. Section 371 reads: “ Challenge, when taken. A challenge must be taken when the juror appears and before he is sworn; but ■ the court may, in its discretion, for good cause, set aside a juror at any time before evidence is given in the action.”

Had the practice of not swearing the jurors until their number was complete been adopted, the information would have been received by the district attorney before Mr. Bosenbauer was sworn as a juror. It has been held in states where the practice is not regulated by statute, but where the rule obtains that the right to challenge is lost after the juror is accepted but not sworn, or where he has been sworn and entered the box, that the court may, in its discretion, for good cause shown, remove a juror, or cause him to stand aside after he has been accepted. It is stated in a note to § 269, Thompson & Merrian on Juries, as the doctrine of authorities there referred to, that “ there is no necessity or right that a prisoner shall be tried by particular jurymen until he has been given in charge to the jury.” But his right to select from the whole panel cannot be arbitrarily abridged by the court. The practice in this state is regulated by statute. The right to a peremptory challenge is, by § 371, lost when the jury is sworn, unless thé party desiring to use the challenge can show cause why he should be permitted so to do. And if, in the exercise of its discretion, the court allows the challenge, it sets the juror aside. It is provided by § 372 of the Code of Criminal Procedure, that when a juror is peremptorily challenged the court must exclude him. He is excluded by the court in both cases, but in the latter -case the court has no discretion.

It appears from the record that Mr. Baines’ application followed very soon after the juror Bosenbauer was sworn, and before any adjournment of the court had been had. It frequently occurs that information comes to counsel engaged in the trial of causes, after the juror is accepted, that for some reason he is disqualified to sit. Had the information been received before Rosenbauer was sworn, he would have been peremptorily challenged.

The defendant’s counsel did not question the power of the court to allow a peremptory challenge for cause, but insisted that the court should not exercise its discretion unless the plaintiff’s-counsel stated under oath the matters which had come to his knowledge leading him to think the juror should not sit Attorneys are sworn officers of the court, charged by the law with grave duties and responsibilities in the trial of causes. Courts are accustomed to act upon their unsworn statements while engaged in the trial of actions. It very rarely occurs that they are misled by such statements; quite as rarely as they are when they act upon sworn statements. The law has provided means in both cases by which the court can punish a person who intentionally makes an untruthful statement with a view of misleading the court.

Counsel for the defendant assumed by the form of his objection that it was within the discretion of the court to permit the peremptory challenge in case the People’s counsel would in some-manner, other than by his oral statement, show the facts which had come to his knowledge. He thereby conceded that the court could grant the request for cause.

The request was for permission to use a peremptory challenge. The nature of the challenge contemplated that no reason need be given for its use. It might well have been very prejudicial to the People’s case, or to the defendant’s case, to have had the facts stated in the presence of the jury. As the defendant’s counsel conceded that for cause the court had power to grant the request, the court decided to act upon the unsworn statement of one of its officers, and exercise its discretion and grant the prosecuting attorney’s request. The defendant’s counsel having assumed that to be the rule by which the court should be guided, he should be estopped from thereafter insisting upon a contrary rule. Lewis v. N. Y., L. E. & W. R. R. Co., 123 N. Y., 496; 34 St. Rep., 373.

The requést of the district attorney was for permission to exercise a challenge which at the time without the consent of the-court he had no right to use.

The question presented to the court was as to the propriety of allowing the request.

The court concluded that it was good cause for allowing the request that the information had come to the prosecuting attorney just after the juror had been sworn and before the panel was complete, and it not appearing that the rights of the defendant would in any way be injured thereby, the request was granted. "We do not see that any substantial right of the defendant was prejudiced, thereby. It was held in the case of the People v. Tweed, reported in 13 Abb., N. S., 371, that “the court had power to allow a juror to be peremptorily challenged after he had been sworn in.” Tweed was on trial for falsely auditing claims against the county of New York. After eleven jurors had been empanelled, counsel for the prosecution stated to the court that they had received information relating to one of the jurors, who had been accepted and sworn, which justified them in applying to the court for leave to interpose a peremptory challenge. John Graham and William Fullerton were heard in opposition on the question of power to grant leave at this stage of the proceedings. “ Davis, J., after reserving the question for consideration, held that the challenge might be allowed in the sound discretion of the court j that the court could exercise such discretion without requiring the counsel publicly to disclose their reasons for interposing it, the court being itself satisfied that substantial- reasons existed rendering it improper that the juror proposed to be challenged should be allowed to sit in the case, and that the challenge might be so allowed at any time before the actual commencement of the trial, the People not having exhausted their challenges.” We have not been able to find that this ruling was reviewed upon appeal. While, in the case referred to, Justice Davis stated the court itself was satisfied that substantial reasons existed, we do not see that that distinguishes it from the case at bar, for, as in this case, no reason was stated. The facts in that case are singularly like the facts of this case.

We find nothing in the defendant’s exceptions calling for a reversal of the judgment.

Judgment should be affirmed.

Dwight, P. J., and Macomber, J., concur.


text:
    The Commercial National Bank of Peoria, Ill., App’lt, v. Edmund K. Taylor, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Joint debtors—Release of fart.
    The action was brought against defendant and his copartners to recover the balance of the proceeds of grain sold for plaintiff which they had converted to their own use. This defendant’s answer set up that after the commencement of the action plaintiff, for a, valuable consideration, released other the partners. The release contained a clause that'nothing therein contained should be construed as releasing any right of action against this-defendant. Held, that such release did not operate to release this defendant, and that a nonsuit was improperly granted „
    Appeal from an order granting a nonsuit and from a judgment entered thereon in the clerk’s office of the county of Erie, on the 26th day of May, 1891.

      Adelbert Moot, for app’lt; Porter Norton, for resp’t.
   Lewis, J.

The plaintiff is a national bank carrying on business in Peoria, Illinois. This action was brought against the respondent Edmund K. Taylor, Henry E. Taylor and James H, Miles as copartners to recover $1,058.72, the balance of the proceeds of a quantity of grain which the defendants sold for the plaintiff as agents, they agreeing to pay over the proceeds when received, whichethey neglected to do and fraudulently misapplied the proceeds to their own use. The form of action was for the conversion of the money, and the plaintiff demanded judgment for the sum mentioned. Edmund K. Taylor answered alleging that the acts out of which the indebtedness arose were participated in by the defendants Henry E. Taylor and James H. Miles jointly with him, with full knowledge of the commission of the acts which the plaintiff claims and charges in this complaint were a fraudulent misapplication of the plaintiff’s money, and further alleged that after the commencement of the action the plaintiff for a valuable consideration executed and delivered to each of the defendants, Henry E. Taylor and James H. Miles, a deed of release, under seal, from the cause of action set up in the complaint.

The plaintiff’s evidence established a complete cause of action against the defendants for the amount of the claim mentioned. And it further appeared that the defendants were indebted to the plaintiff for other causes of action against them as copartners, amounting to the sum of upward of $80,000. The execution and delivery of the release mentioned in the defendant’s answer were proven, and by its terms it appeared that the plaintiff had duly released the defendants Henry E. Taylor and James H. Miles from all claims upon them of every name and nature. The ■release contained the clause that “ nothing herein contained shall be in any manner construed as releasing or impairing any right of action or right to take any proceeding now existing in favor of said bank against said Edmund K. Taylor on account of his connection with said copartnership.” The copartnership of the defendants had been prior to the execution and delivery of the release dissolved. The plaintiff’s cause of action was never paid or satisfied by the defendants, and still exists, unless the defendant Edmund K. Taylor is released therefrom by. virtue of the terms and conditions of the release aforesaid. Edmund K. Taylor did not personally participate in the transactions out of which the cause of action accrued; the same were conducted by the defendant Henry E. Taylor while the firm was in existence. At the close of the evidence the court held and decided that the -cause of action set forth in the complaint being a cause of action sounding in tort, the release of the defendants Henry E. Taylor and James H. Miles operated to release the defendant Edmund K. Taylor, notwithstanding the reservations attempted to be made in said release of the cause of action in the complaint set forth as against the defendant Edmund K. Taylor, and that, therefore, the plaintiff was not entitled to further maintain the action, and nonsuited the plaintiff, and ruled that the plaintiff was not entitled to go to the jury becauses of such releases, to which ruling the plaintiff duly excepted.

Under the common law these releases undoubtedly would have been fatal to a recovery, and unless § 1942 of the Code of Civil Procedure authorized the plaintiff to release the defendants Henry E. Taylor and Miles, and still retain its cause of action against the defendant Edmund K. Taylor, the nonsuit was correct. The whole paper must be considered together to arrive at the intention of the parties. The plaintiff clearly did not intend to release its entire cause of action. The agreementin effectwas that it would not farther prosecute the released parties. It Was for'their benefit only. Section 1942 provides that a joint debtor may make a separate composition with his creditors ; that such a composition discharges the debtor making it and him only. Such release does not impair the creditor’s right of action against any other joint debtor or his right to take any proceeding against the latter unless an intent to release or exonerate him appears affirmatively upon the face thereof. These defendants were joint debtors. They owed the debt jointly. They were jointly liable to pay it. It was contracted by them as co-partners. Plaintiff could have waived the tort and brought its action upon contract. It is not apparent how the character of the indebtedness was altered or changed by the action being in form in tort. It was, notwithstanding the form of the action, still a claim against the defendants arising out of a partnership transaction. The money in their hands was the property of their principal. The essential nature and character of the cause of action, nor the relationship of the parties towards each other, was extinguished or destroyed by treating it as a wrong, by instituting an action for conversion. “ The relation of debtor and creditor may arise by direct agreement, or breach of duty between the parties. The legal acceptation of a debt is a sum of money due by certain and express agreement. It is a precise sum not dependent upon any further calculation to ascertain it A debt is properly opposed to unliquidated damages and liability for use in the sense of an inchoate or contingent debt”. American and English Encyclopedia of Law, vol. 5, pp. 143, 150 and 180. The liability of a person who obtained money from another by reason of false and fraudulent representations in the sale of a patent right was held a debt within the meaning of that word as used in the homestead exemption statute. Warner v. Cammack, 37 Iowa, 642. It is stated in the opinion of the court: “ We hold that it was a debt, and that is because the plaintiff in the action might have waived the tort and brought his action for money paid to the use of the defendant therein. Wherever a party has derived a pecuniary advantage from a wrong done by him, and it is competent for the person suing thereon to waive the tort and maintain his action upon the promise implied by the law, there the obligation to pay is a debt, and this regardless of the form of action in which that obligation is sought to be enforced. * * '* The converse of the proposition just stated must also be true, that wherever a wrong is done resulting in no pecuniary advantage to the wrong doer, and where the action must be in tort and sound only in damages, there the obligation to pay is not a debt until ascertained by judgment.” The amount of the plaintiff’s claim was certain and fixed. It was $1,058.72, no more nor no less. Its amount was not.affected by the form of the action. In cases where the damages are uncertain and unliquidated, determinable only by the verdict of a jury or judgment of a court, a different rule prevails. Such claims cannot be divided nor determined before judgment. No apportionment of responsibility between the wrong doers can be had. Each must be wholly responsible for all. Satisfaction by one is a satisfaction for all. If a creditor in such cases accepts payment of a sum of money it cannot be then known whether he has not received payment in full of his claim, or what in law is deemed an equivalent.

But where the amount of the claim is definite and is known, and the settlement of one is not for the whole claim, but for only part, a different rule prevails. It was held in Fitzgerald v. Smith, 1 Ind., 310, that where the wrong consisted in the conversion of two certain specific items of property, it was competent to settle with one on his returning one of the articles taken and proceed afterwards against the other. In McCrillis v. Hawes, 38 Maine, 566, one hundred sticks of pine timber had been converted by the defendant and one Lewis as partners. Lewis was the principal actor and jointly liable with the defendant for the conversion. Lewis settled with the plaintiff and paid sixty dollars for his half •of the damage claimed, and was thereupon released in full by the plaintiff from all further liability to him on account of the cause ■of action.

The court held, notwithstanding the settlement made with Lewis, as it did not appear that the settlement was for the whole trespass, but was expressly limited to a compensation for one-half of the property taken, that an action could be maintained against the joint trespasser to recover for the balance of the property. Matthews v. Chicopee Manufacturing Company, 3 Robertson, 712, was a case of a release of one of several tort feasors with a reservation of the liability against the other. Chief Justice Robertson held that the release was not a bar to the recovery against the one not released. To the same effect is Ellis v. Esson, 50 Wis., 138.

The defendant Edmund K. Taylor did not personally participate in the fraud, and hence no difficulty arises under the doctrine of contribution. Should he be compelled to pay more than his just proportion of the debt, he can compel contribution from his co-debtors. Code Civ. Proa, § 1944; Cooley on Torts, 144.

If these views are correct, it follows that it was error to nonsuit the plaintiff.

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

Dwight, P. J., and Macomber, J., concur.


text:
    Catherine S. Seifert, App’lt, v. Richard Caverly, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Appeal—Discretionary order of county court.
    PlaintiS’s complaint was twice dismissed by default, and such defaults opened on motion. On the case being again reached she failed to appear, and the complaint was again dismissed, and a motion to reopen denied by the county court, in which th i action was pending. Held, that the motion was one addressed to the discre'ion of the county court, and its decision could not be reviewed by this court.
    Appeal from an order of the county court of Erie county-, dated January 29, 1892, denying the plaintiff’s motion to open a default judgment, entered on the 25tn day of September, 1891, dismissing the complaint, with costs.

      A. C. De Witt, for app’lt; Charles E. Forsyth, for resp’t.
   Lewis, J.

This action has suffered many vicissitudes and calamities.

It was commenced in the month of December, 1888, in the Erie county court; when it was reached upon the calendar, the plaintiff failed to appear, and the complaint was dismissed and judgment for costs was entered against the plaintiff. Upon motion, the default was opened, the cause was again placed upon the calendar, .and the complaint was dismissed a second time. Again, a motion to open the default was made and granted, but terms being imposed, the plaintiff appealed to this court from so much of the -order as imposed terms, and that pant of the order was reversed because of an error in the service of the notice of trial; intermediate the granting of the last mentioned order and the decision of the appeal, the case was again put upon the calendar, and a day fixed for its trial by consent of the - plaintiff. She failed to appear at the time fixed, and her complaint was again dismissed and judgment entered for costs.

A motion was made by plaintiff to open the default and set aside the judgment The motion was denied by the county court, and this appeal was taken.

The record shows that plaintiff’s counsel has been very active in efforts to prevent the case from being tried, but has been exceedingly unfortunate in being present in court when the case was reached from time to time.

The last dismissal was entirely regular. The plaintiff’s reasons for not being present in court were submitted to the county court, and were deemed insufficient, and the motion was denied.

It was a motion addressed to the discretion of that court, and we cannot review its decision. Myers v. Riley, 86 Hun, 20; Prior v. Prior, 41 id., 613; 5 St. Rep., 249.

The county court being an independent tribunal, this court cannot interfere with the exercise of its discretionary powers. Stebbins v. Cowles, 30 Hun, 523; Wollung v. Aiken, 25 St. Rep., 445.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.


author: Macomber, J.

text:
    Sophia Regina Goetz, Pl’ff, v. Edward H. Ballou, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    W ill—Construction.
    Plaintiff's father by his will devised certain lands to her, “ to be used and enjoyed by her during the term of her natural life, and from and immediately after her decease, I give and devise the same to her heirs and assigns forever.” Similar devises were made to two other daughters, except that as to one the final devise was to ‘ her heirs or their assigns.” The residuary clause gave a life estate to the wife, and after her death “ to my above named three daughters and their heirs and assigns forever, to be divided equally between them, share and share alike.” Held, that the use of the word “assigns "in the devise to plaintiff amounted to a grant of power to dispose of the remainder, and the devise was an absolute gift to her, notwithstanding the apparent words of limitation as to life.

      Submission of a controversy upon admitted facts under § 1279 of the Code of Civil Procedure.

      George Clinton and James Gerard Smith, for pl’ff; De Voe P. Hodson, for def’t.
   Macomber, J.

This controversy arises over the will of Louis Goetz, which bears date the 22d day of April, 1871, and which was admitted to probate on the 4th day of September, 1872, and duly recorded.

The portion of the will, the construction of which is sought by this submission, is contained in the third section thereof, and. is as follows:

“ Section 3. I give and devise to my daughter, Sophia Regina, lot number 188, containing ten acres, also lots numbers 189 and 197 and 202, containing together 70 99-100 acres, also, westerly half of lot number 205, containing 16 10-100 acres. All of these lots are of the Ebenezer lands in the town of West Seneca, to be used and enjoyed by her during the term of her natural life, and from and immediately after her decease, I give and devise the same to her heirs and assigns forever.”

On September 10, 1891, the plaintiff, who is unmarried and under the usual vows of nuns of the Catholic Church, entered into a written contract with the defendant, whereby she agreed to convey, by good and sufficient deed, a part of the premises mentioned in this, the third subdivision of the will. She is now shown to be ready to complete her part of the agreement and has tendered a proper conveyance of the lands. The defendant is equally desirous of- completing the contract on his part, providing the conveyance, which he is entitled to under the agreement, would give him an unimpeachable title ; but he claims that the plaintiff’s interest in the lands is limited, under this section of, the will, and that she has no interest therein beyond a life estate, and consequently he denies her power to convey any title thereto beyond her life interest, and that, consequently, he is not obliged to fulfill his part of the agreement.

The question is whether or not the testator intended by his will to give to the plaintiff the fee, or at least the power of disposing of the fee, or only a life estate in the lands described in the third provision of the will. In our judgment much aid is afforded "by an inspection of other portions of the will in arriving at a safe conclusion upon this question, which is to be reached by ascertaining the intention of the testator as disclosed by his will. By the first section of the will, other lands situated in the same town were given by the testator to his daughter Agnes, now Mrs. ICrell, “ to be used and enjoyed by her during the term of her natural life, and from and immediately after her decease, I give the same to her heirs or their assigns forever.” By the second section, the testator devised to his daughter Louise other lands in the same township, “ to be used and enjoyed by her during the term of her natural life, and from and immediately after her decease, I give and devise the same to her heirs and assigns forever.”

The residuary clause of the will gave a life estate to the wife, "to be. used and enjoyed by her during her-natural life, and from and immediately after her decease, I give and devise the same to my above named three daughters and their heirs and assigns forever, to be divided equally between them, share and share alike.”

It will be provision of will in respect to the plaintiff was the same as it was in respect to the testator’s daughter Louise, while in the devise by him to his daughter Agnes the gift was not “ to her heirs and assigns,” but to “ her heirs or their assigns.”

It seems to us- that the use of the word “ assigns ” in the devise to the plaintiff amounts to a grant of a power to dispose of the remainder. The expression “ to her heirs and assigns forever ” must be construed as an absolute gift to her, notwithstanding the apparent words of limitation as to life contained in the preceding part of this section of the will. Campbell v. Beaumont, 91 N. Y., 465.

Judgment ordered for the plaintiff on the submission,

Dwight, P. J., and Lewis, J., concur.


text:
    Richard Foran, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Negligence—Contributory—Railroad crossing.
    Plaintiff was injured while attempting to cross defendant’s track at a crossing with a load of dirt weighing two tons. At the time plaintiff started to cross the view was obscured by smoke which settled upon the tracks, from tugs on the river or a neighboring brewery. Held, that plaintiff was guilty of contributory negligence in not waiting for the smoke to pass off before attempting to cross.

      (Heaney v. Long Island R. R. Co., 112 N. Y., 122; 20 St. Rep., 296, followed.)
    Appeal by the defendant, the New York Central & Hudson River E. E. Co., from a judgment entered in Erie county, on the 12th day of November, 1891, in favor of the plaintiff, upon a verdict of $5,000, and also from an order of the special term, bearing date November 11, 1891, denying the defendant’s motion for a new trial made on a case and exceptions.

      Charles A. Pooley, for app’lt; Edward L. Jellinick, for resp’t.
   Macomber, J.

The plaintiff was quite seriously injured in a collision with a locomotive operated by the defendant, while crossing the defendant’s tracks on Breckenridge street at Black Rock, in the city of Buffalo, on June 13, 1889.

He was at that time a teamster engaged in drawing dirt with a wagon and a team of horses, and was passing along Breckenridge street, which crosses the defendant’s tracks at right angles, with a load of dirt which weighed about two tons. A considerable grade is shown in this street from Niagara street to within a short distance of the railway tracks, but manifestly it was not such a grade that would prevent a driver, even with such a heavy load, to have complete management and control of his horses. Breckenridge street was substantially level in the approaches to the tracks, and there was even a slight rise for a few feet in going upon the first track.

There was evidence from which the jury could have intelligently found that the train was moving into the city of Buffalo, at this point, at a speed of thirty miles an hour, but the rapidity of the movement of the train plays no important part in this appeal, as it seems to us, because the learned justice at the trial ruled that such rate of speed was not unlawful. It is claimed by the learned counsel for the plaintiff, that, as his client came down the descending grade, he was unable to detect -the approaching train which was coming from the north, by reason of natural and. artificial obstructions which obscured his view. It is shown, however, that there was a space between the building upon the corner, which well might be claimed to obstruct a driver’s view to a certain extent, of a clear twenty-two feet to the first or easternmost track of the defendant. There is evidence to the effect that a tree overhung the fence at a little distance from the corner, and some of the witnesses say that the limbs of such tree obscured the sight for six to eight or ten feet. Assuming this evidence to be reliable and to have been believed by the jury, there yet remained a space of at least fourteen feet where the driver could have seen clearly the approach of the train for a distance which would have enabled him, with the exercise of any reasonable care, to protect himself and his property from collision. It is, however, claimed in behalf of the plaintiff, that in this space either of twenty-two feet or of fourteen feet, the vision of the plaintiff was obscured by reason of a sudden “ gush ” of smoke which came upon the ground and prevented the plaintiff from seeing the approach of the train. If this smoke in truth came upon the tracks in the manner described by the plaintiff, it was no fault of the defendant, because no claim is made that it came from any locomotive or works of the defendant, but, on the contrary, that it came from the tugs in the river or from a neighboring brewery.

It seems to us, from the whole of the evidence, that the plaintiff received his injuries through the careless, not to say reckless, effort which he made in passing upon the tracks of the defendant while this smoke obscured his vision. The first track which was approached by the driver was the easternmost track, and it was the second track upon which the train was approaching.

The plaintiff himself testified that he could not see on account of the smoke, and that what prevented his seeing the train was the trees and smoke. He further said, “ When I got within twelve or fourteen feet of the track it was the smoke that obstructed my view; an heavy gush of smoke; plenty of light, enough if it were not for the smoke; no question except for the smoke ; this smoke was so dense I could not see the malt house a hundred yards away; I could see probably 25 or 30 yards, and that was the case when I was coming down before I got to the track; this smoke came down all of a sudden; I could not see more than twenty yards ; I could see towards the canal where I was going; I could not see along the track, the smoke was so dense; it was quite black smoke, and that was so just before I struck the track.” ' He testifies further upon this subject, and also to the effect that after he discovered the approach of the train, which was about 100 or 150 yards to the north, he thought he would be able to get across the tracks before the train got there, and so urged up his team and made the effort, in which he failed. Upon the case, as the testimony of the plaintiff himself has left it, it seems to us that under the authority of Heaney v. Long Island Ry. Co., 112 N. Y., 122; 20 St. Rep., 296, there can be no recovery by him in this action. In the case cited it was stated in the opinion of the court, in substance, that where smoke obscured the approach of a train, it was the duty of a passer-by to wait until the smoke had lifted, so that he could see that it was safe for him to make the crossing.

It follows that the judgment and order should be reversed, and ■a new trial granted.

Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., concurs; Lewis, J., not sitting.


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    John A. Van Ingen, Resp’t, v. Conrad Herold, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Beference—Long account.
    The complaint was for an indebtedness for goods sold and on two promissory notes. The answer contained no denial, but pleaded an accord and satisfaction-by the transfer to plaintiff of accounts against various persons. A bill of particulars showed that the claim for goods sold was for a balance of an account between the parties. The affidavit for an order of reference stated only that the bill of particulars had been served, showing the items of a long account alleged in the complaint; that the answer sets up facts requiring the examination of the account stated therein and books and documents. Held, that an order of reference should not have been granted; that the trial would not require the examination of a long account, as such account was not put in issue by the answer.
    Appeal by the defendant, Conrad Herold, from an order .of the Monroe special term, dated January 27, 1892, and entered in Monroe county February 1, 1892, directing a reference of the issues raised by the pleadings,

      Juan Powers, for app’lt; William Butler Crittenden, for resp’t.
   Macomber, J.

The first cause of action stated in the complaint is for an'indebtedness owing by the defendant to the plaintiff, in the sum of $1,065,30, for coal sold and delivered. The second cause of action is upon a promissory note in the sum of, $500. The third cause of action is upon a promissory note in the sum of $100. The demand for relief covers the amounts claimed to be due and unpaid for the whole of the three causes of action, namely, for the sum of $1,665.30, besides interest.

The answer has no denial of any allegation contained in the complaint, hut it sets up the affirmative defense that for all o£ the causes of action stated in the complaint, and for all indebtedness owing by the defendant to the plaintiff, the defendant turned out to the latter, by way of accord and satisfaction, accounts against sundry persons, amounting to a sum sufficient to pay for the whole of the indebtedness, which accounts were received by the plaintiff upon the agreement, as is alleged, that the same should be in full satisfaction of the indebtedness set forth in the complaint. Nevertheless, the defendant made a, demand for a bill of particulars of the first cause of action, which was accordingly served, covering twelve pages of printed matter, footing up $22,685.14 in all, thus showing that the amount claimed, namely, $1,065.30, was only a balance of such account remaining unpaid.

After the service of such bill of particulars, the plaintiff made a motion for a compulsory reference, and the same was granted, and from the order entered thereon this appeal was taken.

We are of the opinion that the order was inadvertently granted. The moving affidavit failed to conform to § 1013 of the Code of Civil Procedure, which provides that a compulsory reference may be had “where the trial will require the examination of a long account on either side,” etc. The moving affidavit used at the special term failed to show that the trial would require the examination of a long account. It was silent upon that subject, except that it was alleged that “ a bill of particulars has been served on demand of defendant, stating items of a long account alleged in the complaint In deponent’s judgment, no difficult question of law will require to be decided. The answer sets up facts requiring the examination of the account stated therein, and books and documents, and in deponent’s opinion it is a case necessary to be referred”

Yet it is apparent, from an examination of the pleadings, that the trial will not require the examination of a long account, because that account is not put.in issue by the answer. This seems to us to be an insurmountable obstacle to the motion which was made, and upon this ground we think that the order should be reversed.

An additional point is made by the counsel for the defendant, that the moving affidavit was not made by the party, but by the attorney, and no reason was assigned for the omission to have the same' made by the plaintiff. This point was not raised at the special term, and had it.been it doubtless would have been regarded as sufficient to defeat the motion upon the papers as then presented. The order appealed from should be reversed.

Order appealed from reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Dwight, P. J., and Lewis, J., concur.


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    John Rorbach, App’lt, v. Lloyd W. Crossett, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Landlord and tenant—Holding over.
    The mere leaving of fixtures and worthless articles on the premises cannot be construed as an intention of retaining possession or a continuance of the tenancy.
    2. Same—Termination op tenancy.
    One who, by holding over at the termination of a lease for a term of years, becomes a tenant from year to year, may quit the premises at the end of any year without further notice.
    Appeal by the plaintiff from, a judgment rendered in Livingston county October 19, 1891, in favor of the defendant, and from an order denying "plaintiff’s motion to set aside the verdict and fór a new trial made upon the judge’s minutes.

      John Rorbach (John R. Strang, of counsel), for app’lt; Hubbard & Coyne, for resp’t.
   Macomber, J.

This action was brought to recover for one year’s rent and interest claimed to be due from the defendant, a tenant, to the plaintiff as his landlord. The complaint in substance shows that on or about February 1, 1881, by an instrument in writing, made and executed in duplicate, the plaintiff leased to the defendant certain premises for the term of three years from April 1, 1881; that the defendant entered under said lease April 1,1881, and from that time, and with the acquiescence of the plaintiff, and without any other lease or agreement, except as hereinafter stated, continued in the possession of said premises until April 1, 1891; and that by reason of such continuance of possession the sum of $400, with interest thereon from April 1, 1891, became due to plaintiff, and for which he demanded judgment. The exception above referred to was a clause in the original lease for an increase of rent upon the happening of a certain event, which really did happen; and on or about March 31,1887, the plaintiff agreed with the defendant, at his request, to erase said contingent clause, and did so erase it from the written lease, which was thereupon struck out of the duplicate copy of the same, The defendant in his answer. denies that he continued in the possession of the premises as stated in the complaint, or that he was still in possession thereof on April 1, 1891; or that he was in possession of the same, or any part thereof, after March 31, 1890; that on March 31, 1887, the lease set out in the complaint was renewed for the full term; and that on March 31, 1890, he fully and absolutely vacated said premises, and surrendered the same to the plaintiff; and denies that any rent was due to the plaintiff after March 31, 1890.

While the answer does not specifically deny the allegation of the complaint, that the lease was originally made in duplicate, still there was some disparity in the testimony of the principal witnesses at the trial in this regard; but as this question is of small importance in determining the liability of the defendant there is no injustice to either party in assuming that it was so made; and assuming that the defendant possessed a copy of the original lease, his claim that the transaction of March 81, 1887, in which the clause above referred to was stricken out, was a renewal of the former' lease for the same period, and that consequently his term expired April 1, 1890, is so contrary to the weight of evidence on the trial, and is so absolutely denied by the plaintiff, that in this particular there is not sufficient ground upon which to. uphold the defendant’s position. The - defendant further claims that whether a tenant for three years under the renewal or a tenant from year to year, by reason of holding over, still, his tenancy expired April 1, 1890, without further notice. This is likewise denied by the learned counsel for the appellant, who, in an elaborate brief, points out the marked distinction in the determination of a tenancy for years, and one from year to year, and gives abundant authorities to prove that, as the rule was anciently held to be, the latter tenancy is terminable by either party upon six months notice; and that by reason of the defendant holding over he became a tenant from year to year. But he does not rely solely upon the determination of this question in his favor to substantiate his claim, for that doctrine has been repudiated in recent cases, but further alleges, that by reason of having left remaining in. the store numerous articles of value, the plaintiff thereby retained possession of the same.

These two points, namely, the one relating to six months notice and the other to the tenant’s failure to remove his effects from the demised premises, are the only important question in this appeal. To take them up in the inverse order in which they were propounded, and of their importance, there seems no lack of proof that the goods so left over by the defendant were very nearly worthless. The mere leaving of fixtures and worthless articles on the premises cannot be construed as an intention of retaining possession, or a continuance of the tenancy. The plaintiff in his testimony makes a large display of the things left, but the defendant says, by the day upon which he vacated the store he had removed everything of value, and told the plaintiff that he had got through with the store and tendered him the keys. That the jury were justified in finding for the defendant upon this issue admits of no doubt. Taking into consideration the value of the property left, and the intention on the .part of the defendant, as expressed by word of mouth, which was properly submitted to the jury, it is evident that the defendant has complied with all the requirements of the rule, that unless the tenant make a full and absolute surrender he continues liable for the rent for the ensuing year. Haynes v. Aldrich, 45 St. Rep., 243.

Having disposed of the question of the property remaining upon the premises, and having found that the defendant did all in his power, except to give notice of his intention to vacate the premises, the determination of this appeal is brought down to the question whether any notice was necessary or not, and if so, what notice; and whether the defendant did all that was necessary to notify his landlord of his intention to vacate the premises.

Thé primary inquiry under this head is, what is the relation between landlord and tenant from year to year in respect to the duration of the term, or the cessation of the tenant’s liability to pay rent? When the termination of the lease is fixed and defined, or when the term is for one year, of course no notice to quit is necessary. Section 107, McAdam Landlord and Tenant. It has-been held that in the case of a lease from month to month, where the tenant held over and the tenant had vacated the premises at the end of a subsequent month, and given the agent of the landlord notice of the fact, and left the keys with him, that the tenant was no longer liable for the rent of the premises. Ludington v. Garlock, 29 St. Rep., 600. This is precisely analogous to the case before this'court in all respects, differing only in the fact that this case involves a tenancy from year to year instead of from month to month. It has been held that it is not necessary, for the purpose of instituting summary proceedings to recover possession of the premises, for the landlord to giv;e the tenant notice to leave. Inasmuch as the rights and duties of landlord and tenant are reciprocal, it is only just to assume that the converse is true as regards the notice necessary from the tenant to his landlord. Park v. Castle, 19 How. Pr., 29. Our conclusion, therefore, is that the tenant in this case had the right to quit the premises at the end of any year after the 81st day of March, without further notice. Ia Reeder v. Sayre, 70 N. Y., 180, the court held that the only object of such a notice, or of a notice in such a case, is to inform the-landlord that the relation of landlord and tenant was to cease, in order that the landlord thereafter would be at liberty to re-possess-the premises and to lease them to another.

If the law requires any notice it has prescribed no form for it. But it has been shown that on the 29th of March, 1890, defendant went to plaintiff’s house “ to make plaintiff a tender of the keys and surrender of the property,” and in fact he then delivered them. The plaintiff at that time refused to accept the keys, and in the evening of the same day, upon the plaintiff’s again refusing to accept them, the defendant left the keys with the plaintiff. This was an unequivocal act denoting an intention on the part of' the tenant to vacate the premises on the expiration of the yearly holding.

It follows, therefore, that the judgment and order appealed from, should be affirmed.

Dwight, P. J., and Lewis, J., concur.