text:
    FRANK ABBOTT, Respondent, v. HUGH J. JEWETT, as Receiver of the Erie Railway Company, Appellant.

      Action against a receiver — when it cannot be maintained after his discha/rge— 1874, chap. 430 —power of the court to substitute one defendant for another sole defendant.

    The plaintiff brought this action in March, 1880, against the defendant, as receiver of the Erie Railway Company, to recover for services rendered to him from December 1, 1875, to January 81, 1877. More than sixty days prior to the commencement of this action all the property and franchises of the old company had been sold, and the purchasers had, pursuant to chapter 430 of 1874, formed a new corporation and the defendant had been discharged from his receivership. By these facts the plaintiff was, ruder section 3 of chapter 440 of 1876 prevented from maintaining the action against the receiver, but the new company was thereby subjected to the same liability as had formerly existed against him.

      Held, that it was proper to allow the plaintiff to amend the summons and complaint by striking out tbe name of the defendant and substituting that of the new corporation, although issues had been joined in the action and sent to a referee for trial, but that as the reference had been ordered by consent that order should be vacated.

      Appeal from an order made by a justice of tbe Supreme Court, granting to tbe plaintiff leave to amend the summons and complaint by striking out the name of the sole defendant and inserting in place thereof the name of the New York, Lake Erie and Western Railroad Company, and to serve an amended summons and complaint in that form.

      Lewis E Oarr, for the appellant.

      T. J. & J. W. Lyon, for the respondent.
   Gilbert, J.:

This action was brought originally against Jewett, as receiver of the Erie Railway Company, for work, labor and services rendered to the defendant as receiver from the 1st of December, 1875, to the 31st-of January, 1877. The action'was commenced in March, 1880. In April, 1878, the property and franchises of said railway company were sold pursuant to a decree of the Supreme Court, and the purchasers thereof, pursuant to chapter 430 of the Laws of 1874, and the acts amendatory thereof, organized a new corporation under the name of the New York, Lake Erie and Western Railroad Company. The last named corporation took possession of said property and franchises on or about June 1, 1878, and. since that time has managed and operated said railroad.

The said defendant was discharged from his receivership more than sixty days before the commencement of this action. By section 3 of chapter 446 of the Laws of 1876, which is an act to amend said act of 1874, it is provided that no suit or proceeding .shall be commenced against said receiver (unless founded on willful misconduct or fraud in his trust), except such as shall be commenced before the expiration of sixty days from the time of the discharge of such receiver; but it is further provided that after the expiration of said sixty days, the corporation that shall own or ■operate said railroad shall be liable in any action that may be commenced against such company, and founded qn any act or omission of such receiver (for which he may not as aforesaid be sued), and to the same extent as said receiver, but for this act, would bp or remain liable, or to the same extent that said corporation would be, had it done or omitted the acts complained of against such receiver.” The action against the receiver having become barred by reason of the provisions of this section, leave was given to the plaintiff upon motion to amend his complaint by striking out the name of the receiver as defendant, and substituting therefor the name of the corporation formed by the proceedings and reorganization referred to. The sole question is, whether the court had the power to grant that amendment. We think it had. No objection to the amendment can be taken on the ground that it changes the claim of the plaintiff. The cause of action remains the same. The effect of the statute of 1876, was to devolve the liability which is sought to be enforced from the receiver to the new corporation. There can be no doubt but that if the receiver had been discharged before the formation of the new corporation, his liability to the plaintiff would have devolved upon the Erie Railway Company, or that an amendment substituting the latter corporation in place of the receiver as defendant would have‘been allowable. (Code of Civil Pro., § 723; Tighe v. Pope, 16 Hun, 180, and cases cited.) The New York, Lake Erie and Western Railroad is merely the successor of the former .corporation, and thediability of the receiver has devolved upon them.

An executor of a deceased person may be substituted as defendant in an action to recover a debt due from the deceased, and I see no reason why a corporation which has succeeded to the liability of a former corporation which has become defunct, should not be placed in the same category. Indeed, section 756 of the Code of Civil Procedure provides that in case of the devolution of liability the court may direct the person upon whom the liability has devolved to be substituted in the action. The mode of substitution is not prescribed; but I see no objection to its being done by amendment. No objection to that course was taken in the court below, and the form of the proceeding is quite immaterial. (Knickerbocker Life Ins. Co. v. Nelson, 78 N. Y., 149.) It appears that the action against the receiver was referred by consent. That consent should not bind the new corporation. The order must be modified by vacating the order of reference, and as so modified it must be affirmed with ten dollars costs and disbursements.

Barnakd, P. J., and Dykman, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    SILAS D. GIFFORD, Respondent, v. THE TOWN OF WHITE PLAINS, Appellant.

      Principal and agent — Estoppel — when a town is estopped from denying the authority of its agent, as to an act within the appa/i'ent scope of its powers.

    Ob May 31, 1877, tlie board of town officers, under tbe authority conferred by chapter 193 of 1877, directed the supervisor of the town of White Plains to raise the amount of taxes remaining unpaid, as shown by the return of the collector, less the amount then in his hands applicable to the payment of such taxes, upon certificates of indebtedness. The unpaid tax then amounted to $6,526.88. In the latter part of May, 1877, the plaintiff received, directly from the supervisor, a certificate for $500, issued in due form and made payable to the supervisor or order. In an action brought by him to recover the amount due upon the said certificate, it appeared that at the time it was issued, the supervisor had already issued certificates to the amount of $6,000, and had paid to the county treasurer the whole amount returned for unpaid taxes, with the proceeds of such certificates and other moneys in his hands applicable to that purpose.

      Held, that although the resolution might be sufficient to put the plaintiff on inquiry as to the authority of the supervisor, yet as he was himself the proper person of whom to make inquiry, the town was, as against the plaintiff, who was a bona fide holder of the certificate, estopped from setting up the lack of authority in its agent to issue it, upon the principle that where a power is conferred, if the agent does an act which is apparently within the terms of the power, the principal is bound by the representations of the agent as to the existence of any extrinsic facts essential to the proper exercise of the power, when such facts rest peculiarly within the knowledge of the agent.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover $500 and interest upon a certificate of indebtedness of the town of White Plains, alleged to have been issued and negotiated by the supervisor trader the provisions of section 2 of chapter 193 of the Laws of 18YY.
    That portion of section 2 which is material to the consideration of this case, reads as follows, viz.:
    Section 2. Whenever the supervisor shall receive from the collector or receiver of taxes an account of unpaid taxes as required in the next preceding section, he shall, on or before the first day of •May next thereafter, under the direction and authority of a board composed of such supervisor, the justices of the peace and town clerk of the town, or a majority of them, borrow upon the credit of the town a sum not exceeding the amount of unpaid taxes so returned. For the sum so borrowed he shall issue in the name and under the seal of the town the bonds or certificates of indebtedness thereof, signed by such supervisor and countersigned by the town clerk, the same to bear interest at not more than the rate of seven per cent per annum, to be in amounts not more than one thousand nor less than one hundred dollars each, to be payable at such time as shall be determined by said board, not longer than one year from the date thereof, and to be disposed of by such supervisor for not less than the par value thereof. A record of such bonds and of the amount and time of payment thereof shall be kept by the town clerk. The supervisor shall pay to the county treasurer the amount of unpaid taxes included in such return, and such taxes with the interest, per centage and expenses shall be collected as hereinafter provided.

      Elisha P. Ferris, for the appellant.

      Wilson Brown, Jr., for the respondent.
   Gilbert, J.:

The act of April 28, 1877, required the collector of taxes to make a return on oath to the supervisor of the town of all taxes remaining unpaid at the time of such return, and required the supervisor, whenever he should receive from the collector or receiver of taxes an account of such unpaid taxes under the direction and authority of a board composed of himself, the justices of the peace and town clerk of the town, to borrow on or before the first day of May next thereafter upon the credit of the town a sum not exceeding the amount of unpaid taxes so returned, and to pay said amount to the county treasurer. (Laws 1877, chap. 193, §§ 1, 2, 3.) The amount of taxes remaining unpaid, as shown by the return of the collector made pursuant to the foregoing requirement, was $6,526.88. The board of town officers provided by the statute on the 31st of May, 1877, directed the supervisor to raise the amount aforesaid, less the amount then in his hands applicable to the payment of unpaid taxes, upon certificates of indebtedness of the town. Accordingly certificates in proper form were issued, one of which is the one in suit. That certificate was payable to the supervisor or order and was received by the plaintiff directly from the supervisor in the latter part of July, 1877. It appears that at that time certificates amounting to $6,000 had been issued, and that the supervisor liad paid to the county treasurer the whole of the amount so returned for unpaid taxes with the proceeds of such certificates and other moneys in his hands applicable to that purpose. The issuing of the plaintiff’s certificate, therefore, was a breach of duty on the part of the supervisor, and was an act in violation of the direction of the board of town officers.

The certificate, however, was negotiable by delivery, and the plaintiff received it in good faith for value, and without actual notice of the facts which tend to invalidate the instrument. The limitations of the authority of the supervisor in respect to the amount of certificates to he issued was, perhaps, sufficient to put the plaintiff upon inquiry as to the extent of such authority. Assuming that to be so, yet the proper, person of whom the inquiry should be made was the supervisor himself. lie was an officer of the town. Although his authority to issue the certificate was derived from the statute of 1877, yet his acts done in performance of such authority and within its apparent scope were, as respects the plaintiff, corporate acts, and were binding upon the town as principal.

The issuing of the certificate held by the plaintiff was equivalent to a declaration by the supervisor that he had not transcended the limitation contained in the resolution of the hoard of town officers. There were no public records by an inspection of which the plain tiff might have ascertained that the supervisor had exceeded that limitation, nor were the entries in the account kept by the supervisor, showing that fact, made until after the plaintiff had loaned his money on the faith of the certificate. Moreover, the certificate itself contained a recital that it was issued under and in pursuance of the act of 1877 and the resolution of the board of town officers of the town of White Plains. Under such circumstances we think the town is estopped from setting up against a bona fide holder the lack of authority in its agent to issue the certificate, upon the principle that where a power is conferred, if the agent does an act which is apparently within the terms of the power, the principal is bound by tbe representation of the agent as to the existence of any extrinsic facts essential to the proper exercise of the power, when such facts rest peculiarly within the knowledge of the agent. (Farmers’ and M. Bk. v. Butchers’ and D. Bk., 16 N. Y., 125.) When the resolution of the board of town officers was passed the supervisor alone knew what amount was in his hands applicable to the payment of unpaid taxes. That board therefore vested him with the power of determining what sum applicable to the payment of unpaid taxes was in his hands. His determination was manifested by the issuing of the certificate, and by the recital therein before referred to, and it was to the effect that he had not in his hands such an amount as would show that he had transcended his authority by issuing the certificate. The town is bound to the plaintiff by that representation, although in point of fact it was false and fraudulently made, by the rules which govern negotiable instruments, and also upon the principle of estoppel in pais. The latter principle implies an act in itself invalid, and rests upon the equitable consideration that where one of two innocent parties must suffer through the misconduct of another, he who employed the latter should be the loser. (Hern v. Nichols, 1 Salk., 289; Swan v. North Brit. and A. Co., 7 H. & N., 603; Bank of Rome v. Village of Rome, 19 N. Y., 20; Gelpcke v. City of Dubuque, 1 Wall., 203 ; Comrs. v. Aspinwall, 21 How. [U. S.], 545; St. Joseph v. Rogers, 16 Wall., 659; Lynde v. The County, Id., 13; Com’s. v. Clark, 4 Otto, 287.)

The supervisor was authorized to issue the certificates during the period running from the time when he received from the collector an account of unpaid taxes until the first day of May thereafter; such is the language of the act of 1877. Nor did the act require the registration of the certificates as a condition precedent to the issuing thereof. On the contrary, only certificates which had been issued were required to be registered.

The judgment should be affirmed, with costs.

Barnard, B. J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. DANIEL D. COMSTOCK, Respondents, v. JOHN LUCAS, RICHARD HAWKSHAW and FREDERICK SCHLEICHER, Appellants.

      Bond of a constable — what acts constitute a breach of it — 2 B. B., 346, sec. 21 — 1872, chap. 788.
    A bond given by a constable in tbe form required by section 21 of 2 Revised Statutes, 346, before it was amended by chapter 788 of 1872, and conditioned for the payment of all such sums of money as the constable might become liable to pay on account of any execution which should be delivered to him for collection, covers a wrongful levy made by him under an execution against the property of a person other than the judgment debtor, and the sureties upon the bond are liable for the damages thereby occasioned.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought against the defendant Lucas, a constable, and the sureties on his official bond.

      Richard Busteed c& Son, for the appellants.

      O. IT. Payne, for the respondents.
   Gilbert, J.:

This is an action on a constable’s official bond.

In September, 1877, the defendant John Lucas, a constable of the town of Oyster Bay, Queens county, by virtue of executions wrongfully levied upon and sold the property of one Battershall, and applied the proceeds on said execution. Battershall thereupon brought an action for the conversion of his said property in the County Court of Queens county, against the said constable, and on the 12th day of March, 1878, recovered judgment therein against him for the sum of $262.4:1. The judgment was duly assigned by said Battershall to Oliver N. and Edward T. Payne and by them to the relator.

Lucas proved to be insolvent, and the relator obtained leave of the Supreme Court to bring an action upon his official bond against Lucas, as principal, and the defendants Hawlcshaw and Schleicher as sureties.

The bond was duly approved by the town clerk and filed in his office on the 21st day of April, 1877. The defendants, as obligors, thereby jointly and séverally agreed to pay to each and every person who might be entitled thereto all.such sums of money as the said constable might become liable to pay on account of any execution which should be delivered to him for collection.

The bond is in the form required by the Revised Statutes, but an additional obligation which was ^required to be inserted in the bond by an amendatory act passed in 1872 was not inserted therein. (2 R. S., 346, § 21; Laws 1872, chap. 788.) The section amended by the latter statute is designated as number forty-three. The section is so numbered in the fifth edition of the Revised Statutes, but the proper number is twenty-one. This mistake, however, does not obscure the legislative intent, and the same effect must be given to the amendment as if the section had been accurately designated. Nor does the omission of Lucas to comply with the amendatory act invalidate the bond in suit. (Skellinger v. Yendes, 12 Wend., 306; Dutton v. Kelsey, 2 id., 615.)

The only question is, whether the plaintiffs’ demand is covered by the bond. The obligation certainly does not embrace all liabilities which the constable may have incurred in the discharge of his official duty. It is restricted to liabilities incurred “ on account of any execution delivered to him for collection.” Any abuse of that process, whether neglect to levy or sell or to return the process, or to pay over money collected, would render the constable and his sureties liable to the plaintiffs in the execution. So a like abuse, such as making-an excessive levy or levying upon exempt property, would render them liable to the defendant in the execution. The latter liability would be one incurred on account of an execution quite as directly as one for not paying over to the plaintiffs money collected thereon. So the levying on the property of a person other than the judgment debtor is an abuse of the process, and the liability of the constable therefor is not merely one for the commission of a private trespass, but arises out of an act done colore officii, in supposed obedience to the mandate of the execution. That such liability is one to pay money has been settled by the judgment against the constable, and we think it was incurred on account of the execution. A contrary construction of the statute would have the effect to relieve constables from the restraint against making illegal seizures of property which their duty of protecting their sureties affords, and would facilitate greedy and unscrupulous creditors in instigating the perpetration of such wrongs.

We think the amendment of the Revised Statutes in 1872, before cited, affords no grounds for an inference that the bond given pursuant to the Revised Statutes should be limited to a liability for the non-payment of money collected. ,

That amendment is broad and comprehensive. It embraces all acts done by a constable whereby damages have been inflicted. That would include the omission or refusal to pay over money collected on an execution, as well as the violation of duty of which the plaintiff complains. Any inference drawn from the amendatory act which would exclude the latter liability from the bond provided for by the Revised Statutes would equally exclude the former.

We are of opinion that the defendants are liable, and that the ■judgment should be affirmed, with costs.

Dykman, J., concurred ; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    THE CITY OF BROOKLYN, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondents.

      Actions against the city of Sew York must be brought in that city and county — 1868, chcyp. 853, sec. 8, is constitutional and mlid.

    Section 8 of chapter 853 of 1868, providing that the Supreme Court in the first judicial district, the Court of Common Pleas and the Superior Court of the city of New York shall have exclusive jurisdiction of all actions brought against the said city, is not unconstitutional and void, as being an attempt to abridge the general jurisdiction vested in the Supreme Court by section 6 of article 6 of the Constitution.
    By the passage of that act the legislature only intended to require such actions to be brought and tried in the city and county of New York.

      Appeal from an order made at a Special Term changing the place of trial of this action from the county of Kings to the county of New York.

      William O. De Witt, for the appellant.

      William O. Whitney, for the respondents.
   Gilbert, J.:

The act relating to actions, legal proceedings and claims against the mayor, aldermen and commonalty of the city of New York, passed April lé, 1860 (chap. 379), provides that the Supreme Court in the first judicial district, the Court of Common Pleas and the Superior Court of the city of New York shall have exclusive jurisdiction of all actions or special proceedings wherein the mayor, aldermen and^ commonalty are made a party defendant. That statute was re-enacted by section 8, chapter 853, of the Laws of 1868. ~We need not consider the question in respect to the local courts named.

The place of trial in this action having been laid in the county of Kings the defendants demanded a change thereof to the city and county of New York, and the place of trial was changed accordingly by order of the court. The plaintiff appeals from that order and contends that the statute cited is void because it attempts to abridge the jurisdiction vested,in the Supreme Court by article 6, section 6, of the Constitution. ■ That section declares that the Supreme Court shall have general jurisdiction in law and equity. Technically considered the language of the statute would not have the effect to abridge or control the jurisdiction of the Supreme Court, or to affect it in any way. There is no Supreme Court in the city of New York different from the Supreme Court of the Constitution. The legal effect of the statute, therefore, is to vest exclusive jurisdiction of this class of actions in the Supreme Court and in the local courts named. The intention of the legislature evidently was to require that actions brought against the defendant should be brought in the city and county of New York. That the legislature has power to prescribe the county in which particular actions shall be brought and tried admits of no dispute. Such power has existed in the legislature from time immemorial. Actions in relation to real property or for the recovery of penalties and actions against public officers are instances of the exercise of the power. A statute cannot be so construed as to bring it in conflict with the Constitution when it admits of an interpretation consistent with its validity.

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

Barnard, P. J., and Dtkman, J., concurred.

Order changing place of trial affirmed, with ten dollars costs and disbursements.


author: Gilbert, J. :

text:
    EAST RIVER GAS-LIGHT COMPANY, Appellant, v. MICHAEL DONNELLY, JOHN J. MITCHELL and Others, Respondents.

      Public officers — are not civilly liable for an erroneous or corrupt performance of a judicial duty— the duty of awarding a contract to the lowest bidder is judicial.

    A clause in a city charter requiring city officers to award a contract “to the lowest responsible bidder giving adequate security,” imposes a judicial duty upon them, for the erroneous or even corrupt performance of which they ean- • not be held responsible in a civil action brought by the party aggrieved.
    Appeal from a judgment, entered upon an order sustaining a demurrer interposed by all the defendants except Donnelly, on the ground that the complaint did not state facts sufficient to constitute a cause of action.
    The action was brought by the plaintiff against the defendants, the aldermen of Long Island City, to recover damages for their failure to award to it the contract for lighting the said city; the plaintiff claiming to have been the lowest bidder, and that under the charter it was the duty of the defendants to award the contract to it.

      Homer A. Nelson, for the appellant.

      J. Bal/ph Burnett, for the respondents.
   Gilbert, J. :

. The duty imposed on the defendants by the charter of Long Island City was to award the contract in controversy “ to the lowest responsible bidder giving adequate se&wriiyP (Laws 1871, chap. 461, tit. 11, § 29.) That duty was a judicial one. It involved the determination of questions of fact, and that determination could not be controlled or coerced. Nor are the defendants responsible civilly for an erroneous or evpn a corrupt performance of the duty. Public officers intrusted with the performance of such a duty, and having jurisdiction, are protected against liability for damages consequent upon errors committed by them in the performance of the duty. N either malice nor corruption affords a ground for a civil action against them for such acts. ( Wilson v. The Mayor, 1 Den., 595; Weaver v. Devendorf, 3 id., 117; Barhyte v. Shepherd, 35 N. Y., 238.)

The cases cited on behalf of the plaintiff relate to the liability of public officers for nonfeasance or malfeasance in respect to the performance of ministerial duties. They have no application to a case of this kind. The rule of law which we have now laid down is well established in this State, although some contrariety of decision on the subject exists in other States.

The judgment must be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Order sustaining demurrer to plaintiff’s complaint, and judgment entered thereon, affirmed, with costs.


text:
    F. GUSTAV FINCKE, Appellant, v. HERMANN FUNKE, Respondent.

      Statute of limitations — the time during which a party is restrained from suing, is not a part of the time limited by it — Oode of Oivil Procedure, sec. 408 — When a receiver of a firm cannot sue to collect demands due to it.

    In this action, brought hy the plaintiff as the surviving member of a firm, to recover for services rendered by the firm between 1834 and 1857, the defendant set up the statute of limitations as a defense. In 1857 an action was commenced by the administrator of one of the partners against the other two, in which a receiver was appointed, and an injunction granted restraining the two partners from collecting any of the assets or property of the late firm, which continued in force until 1877, when the action was discontinued by consent.

      Held, that the injunction prevented the two partners so sued from bringing any action to collect the demand due to the firm, and that the time of its continuance was not to be taken as a part of the time limited for the commencement of tire action.
    The order appointing the receiver vested in him all the rights and powers of receivers according to law, and the defendants in that action were ordered to assign and transfer to him all the assets and property of the firm. No such assignment was ever made, nor was any specific authority conferred upon the receiver to bring actions.

      Held, that the title to the partnership property did not vest in the receiver.
    That he had no power to bring an action to collect this demand, and that conseqently his failure so to do did not render the statute of limitations a bar to the present action.
    Appeal from a judgment in favor of' the plaintiff, entered upon the trial of this action by the court without a jury.

      E. P. Johnson, for the appellant.

      W. Z. Lamed, for the respondent.
   Gilbert, J.:

The subject of this action isa claim for professional services performed during and after the year 1854, but prior to the year 1857, for the defendant, by the late firm of Ludwig, Smith & Fincke, attorneys, of which the plaintiff is the sole surviving partner. The defendant sets up as a defense the statute of limitations.

It appears that the plaintiff and his copartner Smith, in the year 1857, were restrained from collecting any of the assets or property of the said late firm by an injunction made in an action then pending in the Court of Common Pleas of the city and county of New York, brought by the administrator of the plaintiff’s deceased copartner Ludwig, and that such injunction continued in force until 1877; that a receiver of said assets and property was appointed by a referee pursuant to an order made in said action, and that such appointment was perfected by the approval and filing of the bond of the receiver in April, 1860.

The action in the Common Pleas was discontinued, by consent of the parties, in January, 1877.

The statutory provision in respect to the effect of the stay is that when the commencement of an action has been stayed by injunction * * * the time of the continuance of the stay is not a part of the time limited for the commencement of the action.”, (Code of Pro., § 105 ; Code of Civil Pro., § 406.) .

The injunction did not in terms restrain the plaintiff and his copartner from bringing an action to recover the demand in suit. The prohibition was against interfering with or collecting any of the assets or property of his firm.” But we think that the bringing of an action upon the demand in suit would have been a violation of the injunction. Any exercise of control or authority over the assets or property of the firm would have been an interference therewith. (Lansing v. Easton, 7 Paige, 364; Fenner v. Sanborn, 37 Barb., 610.) The decision in McQueen v. Babcock (41 Barb., 337) is not in conflict with these cases, for the reason that the decision was put upon the ground that the bringing of an action of trespass for a conversion of some of the property in controversy was a duty which the law cast upon the party enjoined, and the performance of that duty could not be deemed a violation of the injunction.

It is contended, however, on behalf of the defendant that the order appointing the receiver vested the legal title to the demand in suit in him, and that his neglect to bring an action to recover such demand bars this action, both as against the receiver and the plaintiff.

The order under which the receiver was appointed vested in him all the rights and powers of receivers according to law, and the defendants, in the action iix which he was appointed, were ordered to assign and transfer to him, under the direction of said referee, all the assets and property of said firm. No assignment was ever in fact made, unless the order appointing the receiver operated as such. Nor does it appear that any specific authority to bring suits was conferred upon the receiver. If such assignment or authority was necessary and appropriate, the duty of obtaining it rested upon the attorneys for the parties to the suit in which the receiver was appointed, on one side or the other, and not upon the receiver. {Authorities infra.) A receiver appointed in a partnership case, pendente lite, has no powers except such as have been conferred upon him by the order for his appointment. He is what Chancellor W al worth called a common-law receiver, and his duty is merely to protect the fund during the litigation. The order appointing him effects no change in the title to the property {Keeney v. Home Ins. Co., 71 N. Y., 396), nor is he authorized to sue for debts due to the partnership without leave of the court. {Green v. Winter, 1 Johns. Ch. R., 60; In re Merritt, 5 Paige, 130; Merritt v. Lyon, 16 Wend., 405 ; Yeager v. Wallace, 44 Penn. St., 294; Estwick v. Conningsby, 1 Vern., 118; Dacie v. John, McClel., 575; Dan. Ch. Pr. [4th Am. ed.], 1749,1750.) In Foster v. Townshend (68 N. Y., 206), where a receiver had been appointed in a suit for a divorce, in aid of an order for the payment of alimony, the Court of Appeals held that he could neither bring nor defend actions * * * except by permission and the direct authority of the court by which he was appointed.” That rule is a necessary result of the nature of the functions of the receiver. He is a. mere custodian of the property for the court as one of its officers. His acts are the acts of the court when duly sanctioned, and when not so sanctioned they have no greater effect than the acts of other unauthorized officers or agents. (Cases, supra.) The rule is different respecting receivers in proceedings supplementary to execution, in cases of embarrassed or insolvent corporations, and in respect to receivers whose powers are defined by statute generally. In many cases such receivers are statutory assignees. In the case before us the receiver acquired no title to the demand, and was given no power to sue for the recovery of it, and the plaintiff and his partner were restrained from putting it in suit. Any action upon it was therefore effectually stayed. It follows that the statute of limitations is not a bar to this action.

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

Barnard, P. J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

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


author: Dykman, J.:

text:
    SHEPARD BARTHOLOMEW, Appellant, v. THOMAS SEAMAN, Respondent.

      Promissory note payable with interest — when it is due — when an action against a guarantor of the payment of it is barred by the statute of limitations.

    This action was commenced September 1, 1880, against the defendant, upon a guaranty of tbe payment of a promissory note dated June 1, 1874, whereby the maker promised to pay to the plaintiff or order $800 “ with interest, at seven per cent per annum, from date, which interest is to be paid half yearly.”

      Held, that the note was due and payable as soon as made, without any demand being made, and that the action was barred by the statute of limitations.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The action was brought upon the guaranty of the defendant, of the payment of the following note:
    “ $800. Eor value received I promise to pay Shepard Bartholomew, or order, the sum of eight hundred dollars, with interest, at seven per cent per annum, from date, which interest is to be paid half yearly. Dated June 1, 1874.
    “(Signed) HENRY T. SEAMAN.”
    The following guaranty was indorsed upon the back thereof:
    “ In consideration of the sum of one dollar, to me duly paid, I hereby guaranty the payment of the within note.
    “ Dated June 1, 1874.
    “(Signed) THOMAS SEAMAN.”

      J. T. Marea/n, for the appellant.

      A. M. Weller, for the respondent.
   Dykman, J.:

This action was commenced on the 1st day of September, 1880, on a guaranty of payment of a promissory note, dated June 1,1874, with interest at seven per cent per annum from date, payable half yearly; no time of payments named. The defense is the statute of limitations, and it was allowed by the trial court.

For the purposes of the statute of limitations a promissory note without day of payment is payable immediately, and the statute commences its run on the day of the date of the paper, whether it is payable with or without interest. This note in suit being therefore payable at once on its execution, an action might have been prosecuted for its collection immediately thereafter, without demand. {Howland v. Edmonds, 24 N. Y., 307.) Such suit was permissible, not because it was itself a demand, but because the instrument was due and payable.

The current of authority was smooth and uniform in this wise until the case of Merritt v. Todd (23 N. Y., 28), and thereafter that case was often called on to wrest contract demands from the statute of limitations. That case was inharmonious with other ■decisions, and created some disturbance, and decisions were made in supposed obedience thereto, but when the case of Wheeler v. Warner (47 N. Y., 519) went to the Court of Appeals, occasion was taken to explain the extent and meaning of the decision in that ■case, and to declare the law as it had ever been understood. In the ■opinion it is said: “ There is no divided opinion here or in England that upon such a note, with or without interest, an action may be maintained against the maker without any demand, because it is due.”

This note, then, being due immediately on its delivery, the liability of the guarantor became fixed at the same time, and suit might have been then maintained against him thereon. His liability was coextensive with that of the maker and commenced at the same time, and the holder of the paper had the option to sue him .alone. (Tuton v. Thayer, 47 How., 186.) Thus the statue of limitations commenced to run against the defendant on his contract of guaranty at the date thereof, June 1, 1874, and had run its full course of six years before the commencement of this action. The claim was thus barred by the statute, and the remedy thereon lost.

The judgment must be affirmed, with costs.

Present — Gilbert and Dykman, J J.; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    JAMES H. GOODALE, as Superintendent of the Poor of Orange County, Appellant, v. WASHINGTON BROCKNER and WILLIAM E. LAWRENCE, Executors, etc., of ABRAHAM MAZE, Deceased, Respondents.

      Liability of a husband for the support of an insane wife.

    Neither a husband nor his executors are liable for the expenses incurred by a county in supporting his wife, who, after leaving his house, was found to be insane and was subsequently delivered over to the county authorities in pursuance of an order made by the court upon the discharge of a committee of her person and estate, the husband having had no notice of such proceedings.
    Appeal from a judgment in favor of the defendants, and from an order made upon a motion for a new trial setting aside a verdict in favor of the plaintiff and directing a judgment to be entered in favor of the defendants.
    The action was brought by the superintendent of the poor of the county of Orange against the executors of one Abraham Maze to recover for board, lodging and care of the testator’s wife, who it was alleged became poor and insane, and whose husband had, it was alleged, without her fault, abandoned and neglected to support her.

      Wadsworth <& Guddebaek, for the appellant.

      Edwcvrd F. Brown, for the respondents.
   Dykman, J.:

Ahraham Maze was married to his wife about the year 1852, and she lived with him at his home in the city of New York for about one year. Then she left him and went to the house of her half-brother in Orange county. Here she was found to be insane, and by regular proceedings instituted for that purpose a committee of her person and estate was appointed and she remained in his charge for some time. There is confusion in the dates, but they are not important. Then the committee was discharged and an order of the court made that she be delivered over to the overseer of the poor of the town of Montgomery, in Orange county, where she had a settlement. There is no distinction between town and county poor in that county, and all paupers there are supported at the joint expense of the several towns as a county charge.

As near as can be gathered from the case she has, since the making of the last order and the discharge of her committee, and certainly since January 1, 1870, been supported by the county of Orange.

Now the husband is dead, and this action is brought against his executors for the recovery of the money expended in her support between March 1, 1873, and January 2d, 1875. It does not appear that the husband had notice of the legal proceedings by which his wife was declared a lunatic, and he was not, therefore, foreclosed by them.

We have no statute under which to maintain this action. Proceedings may be instituted to compel certain persons to provide support for indigent relatives, but even that cannot be carried on against a husband. Neither does any principle of the common law give support to the action.

It is very true that when men and women take on themselves the relation of husband and wife they assume towards each other, and towards the State and society, obligations and duties that are far reaching and may be long lasting. Among those duties is that of the husband to provide for the wife, and if he fails in that obligation and she is obliged to go out from his presence by reason thereof, she carries with her the credit of her husband to the extent of her necessities, and he may incur liability to persons who furnish her therewith. But under this rule of law the husband must only provide for his wife at his own home and not elsewhere, if he is willing and so desires. If she abandons him, or is removed by others, she carries with her no credit, and no liability for support follows. No exception can be allowed where the wife is insane, for we have no law requiring a husband to place his insane wife in an asylum. He has yet the same legal right to support her in his own house, and his only duty is to make suitable provision for her there.

It is thus seen that the law has made ample provision for the wife and there exists no necessity for an action like the present. So the case stands on principle, and on authority it stands no better for the plaintiffs. The case of The Board of Supervisors v. Budlong (51 Barb., 493) was an action against a husband for the support of his insane wife, and had much similarity to this, but the court held that no recovery could be allowed. In Norton v. Rhodes (18 Barb., 100) it was also decided that the superintendents of the poor could not maintain an action against a husband for aid furnished his wife as a pauper, even where he had maltreated her and expelled her from his house without cause and refused to provide for her, though of sufficient ability so to do.

So, also, the teaching of the case of People v. Pettit (74 N. Y., 322) is much against the maintenance of actions like the present.

Both principle and authority are against this action, and it cannot be sustained.

The judgment must be affirmed, with costs.

Barnard, P. J., and Gilbert, L, concurred.

Order setting aside verdict and ordering judgment ,for defendant affirmed, with costs.


text:
    LEVI W. FLAGG, Respondent, v. SAMUEL SWIFT and Others, Appellants.

      Unincorporated association — its members cannot le sued until an action has leen brought against its president or treasurer ■— Code of Ciml Procedure, sec. 1919.
    When an unincorporated association, consisting of more than seven members, has been formed, and has adopted by-laws and elected a treasurer, an action cannot be maintained against the individual members thereof upon a debt due from the association, unless an action has first been brought against its president or treasurer, as prescribed by section 1919 of the Code of Civil Procedure.

      Park v. Spaulding (10 Hun, 128) distinguished and-criticised.

      Appeal from a judgment of the City Court of Yonkers in favor of the plaintiff, entered uj>on the verdict of a jury.

      Theodore Fitch, for the appellant.

      S. H. Thayer, Jr., for the respondent.
   Dykman, J.:

There was in the city of Yonkers an association called the Yonkers Dramatic Club. It was a voluntary, unincorporated organization, and in it were more than seven members. A building was rented of the plaintiff for the use of this society, and this action is brought against three of the members for the recovery of the rent in arrear. The plaintiff had judgment in the trial court, from which an appeal is now taken.

Voluntary associations have occupied an anomalous position. At the common law they were regarded as partnerships in the transaction of business (Williams v. Bank of Michigan, 7 Wend., 542), and yet there have always been many like the one in question, existing for pleasure and not for profit, which could not be brought within the definition of a partnership. What was intended by the common-law rule was that the members were personally responsible, as partners, for liabilities incurred by the association.

The old rule of law was changed with us in 1849 by a statute providing that any joint-stock company or association consisting of seven or more shareholders or associates might sue and be sued in the name of the president or treasurer. (Laws of 1849, chap. 258.) This law had some amendments in subsequent years, but they are-not material here.

This statute wrought a change in the mode of commencing actions against voluntary associations, principally in the manner of suing the-company, and by suspending the right to sue the partners individually in the first instance for the liabilities of the society. (Witherhead v. Allen, 4 Abb. Ct. App. Dec., 628.)

Now the subject has been regulated by the Code of Civil Procedure, which provides that an action or special proceeding may be maintained against the president or treasurer of an unincorporated ssociation, consisting of -seven or more persons, upon any cause of’ action upon which the plaintiff may maintain such an action against all the associates by reason of their interest or ownership, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership or other company of persons which has a president or treasurer is deemed an association within the meaning of this section. (Code of Civil Pro., § 1919.) The association in question here had a treasurer, and is within the provisions of this law.

The right to sue the members individually in the first instance for the society liabilities was clearly suspended. ( Witherhead v. Allen, supra.)

This examination shows that the action of the plaintiff was improperly brought against the defendants.

The case of Park v. Spaulding (10 Hun, 128), seems to be antagonistic to this view, but there was some difference between the cases. There the body was unorganized and had no constitution or by-laws or articles of association. Here by-laws were adopted and the club was organized. We are not, therefore, embarrassed by that decision.

If, however, it can be understood to go further than we assume, or to decide that an action may be maintained in the first instance against the members of an association, organized as was the one in question, for a liability of the society, it is out of harmony with the statute and decisions of the courts on'the subject, and we are not bound to follow it.

The decision has been refused obedience by another court sitting in the same hall. (Ebbighousen v. Worth Club, 4 Abb. New Cases, 300.)

Our conclusion, therefore, is that this action cannot be maintained, and that the judgment must be reversed.

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

Gilbert, J. concurred; Barnard, P. J., dissented.

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


author: Narnard, P. J.: Dykman, J.:

text:
    MARY SCHLICHTING, as Administratrix, etc., of JOHN SCHLICHTING, Deceased, Appellant, v. LUR WINTGEN, Respondent.

      Action by an administrator for the wrongful hilling of Ids intestate — is not barred by an action brought by the deceased in his lifetime — the death need not occur within a yean- and a day from the time of the act.

    It is no defense to an action brought underj the statute, by an administrator to recover damages for the wrongful killing of the intestate by the defendant, that the deceased had, in his lifetime, brought an action and recovered and collected a judgment against the same defendant for the damages sustained by him by reason of the same wrongful act.
    The fact that the death did not occur within a year and a day from the time of the commission of the wrongful act, does not prevent the bringing of an action by the administrator under the statute.
    Appeal from a judgment entered at a Special Term, overruling a demurrer interposed by the plaintiff to the answer of the defendant.

      James M. Lyddy, for the appellant.
    Fisher, Hurd <& Volts, for the respondent.
   Narnard, P. J.:

The defendant, on the 19th of October, 1878, wrongfully caused the death of one John Schlichting. Schlichting was fatally injured by the violence of the defendant, but lingered one year and some seventeen days and then died from the effects of the injury. He brought an action for the assault and battery in his lifetime against the defendant and recovered a judgment therefor for $637.13, which was paid him. After his death his widow took out letters of administration and brought this action under the act of 1847, as amended in 1849 and 1870. The defendant pleaded the recovery and payment to the deceased as a bar to this action. It is not a bar. The question is one as to which very able judges have differed, and contrary decisions have been rendered. It was decided to be a bar in Dibble v. The New York and Erie Railway Company (25 Barb., 183). This case went to tbe Court of Appeals and the court was equally divided upon tbe question. It was reargued since with a like result. In a subsequent case (Whitford v. Panama Railroad Company, 23 N. Y., 470), it became necessary to again examine tbe question as incident to tbe decision of that case. Tbe Panama Railroad Company negligently caused the death of one King, without any fault upon King’s part, in tbe republic of New Grenada. His administrators brought an action against tbe company, under these acts, in tbe courts of this State. It was held that tbe action would not be here. Tbe Court of Appeals say: Tbe system of tbe statute as well as tbe common law is that tbe right of action for damages on account of bis bodily injuries, which belonged to tbe deceased while be bved, was extinguished by bis death. Tbe statute does not profess to revive his cause of action in favor of tbe executor or administrator. Tbe compensation for tbe bodily injury remains extinct, but a new grievance of a distinct nature, namely, tbe deprivation suffered by tbe wife and children or other relatives of their natural support and protection, arises upon bis death, and is made by tbe statute tbe subject of a new cause of action.” While tbe injured person lived be bad his own cause of action for bis own pecuniary loss and damage, and also for bis pain and suffering. Tbe damages given to tbe personal representatives is entirely different. It is estimated “ with reference to tbe pecuniary injuries resulting from such death to tbe wife and next of kin of snob deceased person.” Tbe Court of Appeals say: “ This is a subject of damages which could not possibly have bad any application in any action brought by the party injured if be bad survived.”

Tbe death of plaintiff’s intestate need not happen within a year and a day from the injury. That rule is one applicable to criminal cases only. It is an arbitrary rule of tbe common law that if tbe death does not occur from the injury in a year and a day, it will be presumed that tbe death happened from other causes than tbe wound. The rule has no place in civil actions. Tbe plaintiff must prove that tbe death resulted solely from tbe injury, and tbe statute in question gives her two years after .the death in which to commence her action. This is done. The order overruling tbe demurrer should therefore be reversed, with costs to abide tbe event, and the demurrer should be sustained, with leave to defendant to answer over.

Dykman, J.:

J ohn Schlichting was injured by the wrongful act of the defendant, on the 19th day of October, 1878, and his death resulted from the injury, on the 5th day of November, 1879. ■

He commenced an action for the wrong and recovered and collected a judgment therefor of $637.13 before his death.

Now the plaintiff, as administrator of his estate, has commenced this action under the statute requiring compensation for causing death by wrongful act, neglect or default, and the defendant sets up for defense thereto the former recovery by the plaintiff’s intestate, and that death did not ensue within a year and a day after the injuries were received. To this plea the plaintiff has interposed a demurrer, and we thus have presented a very serious question.

In behalf of the defendant the argument is that the wrongful act afforded but one single cause of action, and that after one recovery and compensation therefor, no new development will justify another action, while for the plaintiff the contention is that with death as a result of the wrongful act, a new grievance springs up having reference “to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person.”

By the common law and under our statute a cause of action for personal injuries expires with the person, and if the statute under which this action is commenced affects a simple devolution of the cause of action which the deceased in his lifetime had, then this action cannot be maintained, for that cause has been discharged by compensation. But that is not the best view of the statute. In an action for personal injuries the recovery is for the pecuniary loss of the injured party, and for the pain and suffering he endured; but the statute gives a new action in the event of1' death for the pecuniary injuries resulting from such death to the wife and next of kin ”— a new action for new injuries to other parties. “A new grievance of a distinct nature, namely, the deprivation suffered by the wife and children or other relatives of their natui-al support and protection, arises upon his death and is made by the statute the sxibject of a new cause of action in favor of these surviving relatives, but to be prosecuted in point of form by the executor or administrator.” ( Whitford v. Panama R. R. Co., 23 N. Y., 470.)

In this view of the statute and the purposes which it was designed to accomplish the plea sets up no bar to this action, and the plaintiff may have it notwithstanding the former recovery.

There are facts for its maintenance now which had no existence at the time of such judgment; now the husband is dead, and although the wrongful act of the defendant remains the same, yet that event has shown that other persons are affected by it who were not before. The wife and next of kin are deprived of protection and support. The common law gave them no redress for such loss, because legal liability departed with the person receiving the wrong. All remedy was interscinded by his decease, but this statute created a new cause of action for surviving relatives, for the pecuniary injuries resulting to them from such death.

This view is opposed to the case of Dibble v. New York and Erie Railway Company (25 Barb., 183), but that case was after-wards weighed in the balance and found somewhat wanting. It went to the Court of Appeals' and failed to receive affirmance after three arguments. (21 How., 593; 23 id., 599.)

There is a dissenting opinion in the Whitford case {supra) which was prepared by Judge Comstock for affirmance of Dibble’s case. It presents that view of the statute with the strength of reasoning and force of expression which always characterize the productions of that learned judge, but it failed to receive the sanction of the court and is antagonistic to our own view, although we dissent from it with much diffidence. On this point, therefore, we sustain the demurrer.

There is also a demurrer to that portion of the answer setting up that more than a year and a day elapsed from the time of the injury to the death therefrom. It is a rule of the common law that the killing of a human being is not murder where death does not result within a year and a day after the cause was administered; and the pleader seems desirous to invoke this principle to show that in this case death did not result from the defendant’s wrong. But this old rule can be called in for no such purpose. If death resulted from the wrongful act of the defendant, the cause of action is complete under this statute and time is not important. We have found neither principle nor authority for the defendant’s position and the demurrer must be held good.

The judgment appealed from should be reversed.

Barnard, P. J., concurred ; Gilbert, J., not sitting.

Order overruling demurrer to defendant’s answer, and judgment entered thereon reversed, with costs to abide the event, and demurrer sustained with leave to defendant ti answer.


author: Gilbert, J.: Dykman, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE WESTCHESTER FIRE INSURANCE COMPANY v. GIDEON W. DAVENPORT and Others, Trustees of the Village of New Rochelle.

      Taxation — what deduction should be made in the assessment of the personal property of a fire insurance company for unearned premiums — Oliap. 542 of 1880 — did not relieve the corporation from county or municipal taxes.

    A fire insurance company is not entitled to have the assessors deduct from the valuation of its personal property the whole amount of its unearned premiums. Where the assessors deducted one-half of the amount of the unearned premiums, and there was nothing to show that the relator was entitled to a greater deduction, it was held that it had no ground of complaint.
    Chapter 542 of 1880, providing for the taxation ot certain corporations for State purposes, did not relieve them from any taxes for county and municipal purposes to which they were then subject.
    Certiorari to review the assessment of the relator for personal property, upon which a tax for municipal purposes was to be levied.

      Martm J. Keogh, for the relator.

      Glose d; Robertson, for the respondents.
   Gilbert, J.:

The charter of New Rochelle requires that taxes, directed to be levied by the board of trustees, shall be apportioned among taxable inhabitants and corporations, in conformity as near as practicable with the provisions of law in respect to the assessment of taxes by town assessors. (Laws 1864, chap. 249, tit. 4, § 2.) The relator is a moneyed corporation. The duties of town assessors in assessing the property of such corporations is plainly prescribed by statute. (1 R. S., 414, §§ 1, 2; id., 389, § 6.) We have no means of determining whether the assessment in this case was made conformably to those provisions or not, as the roll is not returned, and the return does not show what property of the relator is embraced therein. (People ex rel. U. and B. R. R. R. Co. v. Shields, 6 Hun, 556, and cases cited; People ex rel. Manhattan F. Ins. Co. v. Com’rs., 76 N. Y., 64, 74.)

Assuming, however, that the affidavit of Mr. Underhill represented all the personal property of the relator liable to taxation, yet we are of opinion that no error was committed by the assessor. He deducted one-half of the amount of the unearned premiums. There is nothing in the return which has a tendency to show that the relator was entitled to a greater deduction. The Court of Appeals, in the case above cited (76 N. Y., 73), intimate quite strongly that no deduction should be made for unearned premiums. In the case of The People ex rel. Glens Falls Insurance Company v. Ferguson (38 N. Y., 89) it was held merely that a proper deduction should be made therefor; The return does not show that the deduction made in this case was improper, unless any deduction may be deemed illegal. The claim of the relator that all of the unearned premiums should have been deducted cannot, upon any view of the case, be sustained.

With respect to the claim of the relator that it was wholly exempt from the tax by virtue of the eighth section of chapter 542 of the Laws of 1880, it was held by this court, in the case of The People ex rel., National Freight and Lighterage Company v. The Board of Assessors of Richmond County, which arose soon after the passage of the act, that such exemption was intended by the legislature to be limited to taxation for State purposes only. The court said: “ Tahing the eighth section of the act by itself, its legal effect would be to exempt the relator from assessment or taxation except as in that act prescribed. But I am of opinion that such was not the intention of the legislature. The ninth section of the act declares that the taxes thereby imposed shall be applicable to the payment of the ordinary and current expenses of the State. That provision is in conformity with the requirement of the Constitution that every act which imposes, continues or revives a tax shall distinctly state the tax and the object to which it is to be applied; and it shows that the legislature had reference only to the finances of the State. (Const., art. 3, § 20," formerly art. 7, § 13; People v. Supervisors of Chenango, 4 Seld., 317; Darlington v. Mayor, 31 N. Y., 186; People ex rel. Hopkins v. Supervisors of Kings, 52 id., 566.) Furthermore, the title of the act is “An act to provide for raising taxes for the use of the State.” Other statutes have made provision for taxing the capital stock and personal property of corporations for local purposes. The act of 1880 contains no words repealing or modifying those statutes. All statutes on the subject of taxing corporations, including the act of 1880, are in pari materia and must be read together. So read there is no inconsistency between them. But the broad and unqualified language of section 3 of the act of 1880, the omission of any reference to other statutes upon the same subject, and the indefinite language in which the exemption is expressed, create a doubt as to the intention of the legislature. Whenever in construing a statute such a doubt arises, resort may be had to the title thereof for the purpose of solving the doubt. (Sedg. Stat. and Const. Law, 38, et seq.; People v. Molyneux, 40 N. Y., 113; Bishop v. Barton, 2 Hun, 436; S. C., 64 N. Y., 637.) The cases in fortieth and sixty-fourth New York Reports are clear authorities for the use of the title of an act, for the purpose of restraining the operation of the general words thereof so as to exclude matters which otherwise would be embraced in the act, and to restrict it to the matters indicated in the title. In my judgment the legislature intended to substitute the method of taxing the capital stock and personal property of corporations for State purposes, prescribed by the act of 1880, for the. system formerly in use, and to exempt that kind of property from taxation, for State purposes only, in any othér mode. The provision that the lands and real estate of corporations shall continue to be assessed where situated is not incompatible with this construction, for it does not appear, nor is it reasonable to suppose that the revenue which will accrue from taxes - received pursuant to the act of 1880 will amount to a fair or just contribution by corporations to the funds required for State uses. That provision, therefore, is one to make good any deficit in the revenues of the State by continuing the tax on the real estate of corporations for State purposes as heretofore. The necessity of the taxation of the capital and other property of corporations for local purposes' also will remain, and I cannot believe that the legislature intended to relieve corporations from that burden, and to cast it wholly upon individual • citizens.”

The construction given to the act of 1880 by that decision has been adopted in several instances by other justices of this court. The legislature in 1881 (Laws, chap. 361, § 8) amended the eighth section of the act of 1880, whereby the exemption therein contained was expressly limited to taxation for State purposes. These facts furnish cogent evidence that the construction mentioned was correct. Certainly the legislature could not have intended by the act of 1880 to exempt the relator from taxation for village purposes whatever its intention may have been.

The certiorari should be quashed, with costs and disbursements.

Barnard, P. J., concurred.

Dykman, J.

(dissenting):

The relator is an incorporated fire insurance company in the village of New Rochelle, and its trustees, in the pursuit of their duties, have made an assessment against the company of $76,000 for personal property for the purposes of taxation for the year 1881. The relator now reviews this assessment by certiorari and seek to have it wiped out and set aside.

The mode of taxation of corporations like the relator underwent many modifications in this State previous to the year 1880, which need not be followed out or examined now. On the 1st day of June, 1880, the legislature passed a law providing that such corporations should pay a tax into the treasury of the State annually to be computed as therein provided, and then by the eighth section of the law declared that the lands and real estate of the various corporations named should continue to be assessed and taxed where situated, but that the capital stock and personal property of said corporations sliould thereafter be exempt from assessment or taxation except as in that act prescribed. (Laws of 1880, chap. 542.)

This law provides a new system for the taxation of the personal property and capital stock of such corporations, and exempts the same from all other assessment. It is true the object of the act, as declared by the title, is to raise taxes for the use of the State, but the broad and comprehensive language of the exemption prohibits the imposition of any other burden of taxation on the personal property or capital stock of these incorporated companies. Municipal corporations as well as towns and counties are within the prohibitions, and the laying of this tax or assessment was beyond the functions of these trustees.

A question respecting unearned premiums and deductions therefor is in the case, but will not be determined in view of the conclusion reached on the other branch of the case.

The assessment should be vacated, without costs.

Assessment affirmed and writ of certiorari quashed, with costs.


text:
    SAMUEL F. EDWARDS, Respondent, v. THE NEW YORK AND HARLEM RAILROAD COMPANY, Appellant.

      ■Lessor — liability of, for injuries sustained by one coming upon the premises at the request of the lessee, by reason of their being unsuited to the purposes for which they were used by the lessee.

    One Kelly leased from the defendant a building owned by it, for the purpose of having therein a pedestrian contest, to which the public were to be admitted on the payment of an entrance fee. All changes in the interior which Kelly might desire to make were first to be submitted to and approved by the defendant. In the building was a temporary gallery which had been erected by a society when holding .a masquerade ball therein. It was divided into boxes capable of holding from four to six persons which were supplied with tables and chairs; and it was sufficiently strong for that purpose. Kelly removed the tables and chairs and allowed the boxes to be filled by a boisterous and excited crowd, and while the crowd was moving about and stamping the gallery gave way and fell upon and injured the plaintiff.
    In an action brought by him against the lessor to recover damages for the injuries so sustained, held, that as the injuries resulted not from any defects existing at the time of the demise, but from the manner in which the premises were used by the lessee, the defendant was not liable.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover damages sustained by the plaintiff from injuries received by the falling of a gallery, forming part of the building known as Gilmore’s Garden situated in the city of New York, bounded by Twenty-sixth and Twenty-seventh streets, Madison and Fourth avenues. The building is owned by the defendant and was rented by it to James E. Kelly from the. 8th to the 18th of March, 1879, for t’ e purpose of giving therein a pedestrian exhibition which was known as the “International Walking Match.” At which exhibition the public were generally invited to attend and were permitted to witness the contest upon the payment of an admission fee.
    The gallery in question was erected a short time prior to the demise to Kelly, and was used by the Arion Society which had leased the premises for the purpose of giving a masquerade; it was supported by pillars and divided into boxes capable of holding from four to six persons with a table, and with the intention to have the said boxes occupied by persons who could therein take refreshments from the tables and look down upon the carnival below if desired. This gallery was sufficient for that purpose, and was so used on the occasion of the Arion festival.
    A large number of persons attended the walking match on every day from the opening, and a large number of persons occupied the boxes into which the gallery was divided, the tables and chairs having been previously removed therefrom. On the evening of the 12th day of March, 1879, while the gallery was so occupied and the boxes crowded by excited persons standing and moving about, it fell, thereby causing injuries to the plaintiff.
    Ry the terms of the demise to James E. Kelly he was to surrender the premises at the end of the term in precisely the same condition as when rented to him. Any alterations contemplated by him were first to be submitted to the president or vice-president of the defendant for approval, and if such approval was obtained and alterations made the premises were to be restored at the end of the term to their original condition, all at the expense of the lessee. The only alteration applied for or made by the lessee was to have the ground floor or platform taken up and a track laid thereon inclosed with a railing and the building of a reporters’ stand.

      Frank Loomis, for the appellant.

      Morris <& Pecvrsall, for the respondent.
   Dykman, J.:

Owners and occupants of real property are called on for the exercise of ordinary care and diligence to maintain their premises in safe condition for access to all persons coming thereto legitimately. This obligation, however, does not rest on the owner where he has made an entire surrender of premises to a lessee, unless indeed they are let for a purpose for which they are known by him to be unfit, or have so fallen into decay as to become a private nuisance. If, therefore, injuries result from defects in demised premises to persons induced to visit them by the tenant, he, and not the landlord, is responsible for the injuries, even though the defects existed at the time of the execution of the lease. If premises are not unsafe at the time of the lease, and only become so by the manner of their use by the lessee, the landlord incurs no responsibility by reason thereof. Finally, the lessee in possession is responsible for injuries resulting from defects in the premises, and the lessor, in the absence of fraud or contract to repair, is not liable to the tenant or others for their condition. (Sherman and Redfield on Negligence, §§ 498, 503; Jaffe v. Harteau, 56 N. Y., 401; Clancy v. Byrne, 56 id., 132; Swords v. Edgar, 59 id., 34; Ditchett v. Spuyten D., etc., Railroad, 67 id., 427.)

There is no implied covenant or warranty on the part of a lessor ■of real property that the premises are fit for occupation or use, and unless the lessee protects himself by covenants he takes all the risk of its quality and condition, and among such hazards is the responsibility to strangers who come to the premises by his invitation.

Scrutinized in the light of these principles the case of the plain-tiff is found wanting. At the time the defendant leased the garden where the plaintiff received his injuries it was in safe condition for all uses to which it had been applied. It was neither unsafe nor a nuisance, and the defendant made no agreement for change or repair. The lessee might make alterations. The lessor had no-notice of defects. The plaintiff visited the garden on the invitation of the lessee and for his benefit, and the whole place was subject to the management of the lessee. It is true the defendant had an agent to look after the building, but his presence imposed no restraint or limitation on the lessee. He was in full control of the place, and congregated there an unusual number of persons, who were noisy and uneasy, and broke down a platform unsuitable for so much strain. There was no warranty of the suitableness of the place for the purposes for which it was used, and the premises had not become a nuisance at the time of the demise, and the injury arose neither from the nonfeasance nor the misfeasance of the defendant.

Reliance is had by the plaintiff on the case of Camp v. Wood (76 N. Y., 95), but the similarity to this is not sufficient. There the defendant owned the building and let it for a night for the purpose of a dance, and it was admitted by the pleadings that the public were invited to the hall with his consent, and were admitted on application and payment of a fee, and so the defendant himself held out to the public that it was safe, and the plaintiff and others were there on his invitation. He was, therefore, within the first principle stated above.

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

Barnard, P. J., and Gilbert, J., concurred.

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


text:
    WILLIAM W. TABOR, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Writ of error — will not lie in a criminal case until after final judgment.

    A writ of error will not lie in a criminal case until all the issues have been disposed of and a final judgment has been entered.
    Motion to quash a writ of error to the Court of Sessions of Suffolk county, to review the proceedings had upon the trial of the plaintiff in error upon an indictment charging him with burglary in the first degree and petit larceny.

      Martin J. Keogh, for the plaintiff in error.

      Nathan D. Petty, for the people.
   Dykman, J.:

The plaintiff in error was indicted in the sessions for burglary and larceny under the name of Walter Tabor. On this indictment he was arraigned and plead misnomer in abatement. Thereupon the grand jury immediately presented another indictment against him for the same offense, to which he interposed a dilatory plea that there was no evidence before the grand jury of the commission of the crime of burglary. A demurrer to this plea was sustained by the court. Then another special plea was made against the jurisdiction of the Court of Sessions over the crime of petit larceny. A demurrer to this plea was also sustained by the court. Then the plaintiff in error moved to quash the indictment on the ground of misjoinder of a charge of felony and misdemeanor in the same indictment, and the motion was denied. Thereupon the public prosecutor moved that the plaintiff in error be called upon to plead to the indictment, and the court so ordered, and he plead not guilty. No trial has been had on this plea, but the plaintiff in error has sued out a writ of error, to bring the cause to this court for review ; and a motion is now made that the writ he dismissed on the ground of its prematurity. At common law no writ of error could lie until after final judgment, and although this mode of review no longer obtains with us in civil actions, yet no change was made by the Revised Statutes for criminal cases. They provide that writs of error upon judgment rendered on an indictment for a capital offense shall not issue unless allowed by one of the justices of the Supreme Court, and that in all other cases writs of error upon any final judgment rendered upon any indictment are writs of right. (2 R. S., 740, §§ 14, 15.)

Waiving the consideration that no judgment has been entered on either decision rendered by the court, it is plain that these statutes give no authority to bring error, to review other than final judgments in criminal cases, as under the common law, so under the statute, the policy seems to be against a review of intermediate judgments. The case of the People v. Merrill (14 N. Y., 74), though unlike this in some of its features, seems to be authority that a writ of error will not lie for the review of a judgment on some of the counts in an indictment while other counts and other issues remain undisposed of.

This rule of law has applicability to this case because, although judgment can be entered against the plaintiff in error on the demurrer to one of the charges in the indictment, yet no final judgment can be rendered against him until his plea of not guilty is shown to be unavailing, and that issue is now pending.

As this view will require a dismissal of the writ of error it is unnecessary to determine whether the return to the writ is sufficient or not.

The writ of error must be dismissed.

Barnard, P. J., and Gilbert, J., concurred.

Motion to dismiss writ of error granted.


author: Gilbert, J.

text:
    DAVID P. NICHOLS, Treasurer of the State of Connecticut, as Trustee, etc., Respondent, v. SYLVESTER H. MASE, Appellant.

      Mortgage of personal property given by a corporation in another State — it need not be filed in this State — a lien valid in the State where it is created will be enforced in aU States where the property subsequently comes— Ohaps. 279 of 1833 and 799 of 1868 providing for the filing or recording of chattel mortgages have no extra territorial force.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying- a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    This is an action against the sheriff of Dutchess county to recover certain personal property consisting of a locomotive engine, railroad cars and other movable personal property, seized by him in this State by virtue of an attachment against the Connecticut Western Railroad Company, a corporation created pursuant to the laws of the State of Connecticut. The plaintiff is the treasurer of the said State and claims the property by virtue of a mortgage made October 11,1870, between said railroad company of the first part and the treasurer of the State of Connecticut of the second part, by which the company mortgaged to said treasurer its railroad from Hartford to the east line of this State and its lands, with all and singular the railways, etc., etc., tools, cars, engines, equipments, michinery, fuel, material, privileges, appendages, appurtenances and property real and personal, which then belonged or might at any time thereafter belong to said company, and be used as a part of said railroad or be appurtenant thereto, and necessary to the construction, operation or security thereof. And also all the property, rights and franchises of the company under its charter, etc., in trust for holders of bonds of the company particularly referred to in the mortgage. The levy made by the sheriff occurred on the 19th of March, 1880. On the 27th of April, 1880, the property of’the railroad company was formally surrendered to the trustee named in the mortgage.
    The General Term, after considering and overruling certain objections of the appellant, said : “ The only remaining question is whether the mortgage was valid in this State. The filing and recording of the mortgage was not required by any law in this State.

      “ The act of 1833 (chap. 279) provided that where the mortgager was not a resident of this State the mortgage should be filed in the town or city where the mortgaged property was at the time of the execution of the mortgage. It was held under that act that a rail road corporation was to be deemed resident in all the towns and cities in which any part of its line was located.

      “ Then came the act of 1868 (chap. 799) which rendered unnecessary the filing of a mortgage upon real and personal property which had been duly recorded as a mortgage of real estate. These statutes of course have no extra territorial operation.

      “ The question of the validity of the mortgage in this case must be determined by an application of the general rules of law. It does not appear that the mortgaged property in dispute -was pur chased in this State or that it was in this State when it was mort gaged. As a general rule the law of the domicil of the owner of personal property determines the validity of a mortgage thereof made by him. The mortgage being valid in Connecticut where the railroad was and where the mortgage was made we think the mortgagee should be protected in all rights given him by the mortgage. Such seems to be the established rule of law in this State and in our sister States.
    “ In Martin v. Hill (12 Barb., 631) the court said: ‘ If a lien is good notwithstanding it is unaccompanied by possession where the lien is created, it seems contrary to reason that the creditor should gain priority by proceeding in inmtwn in any other State to which the property may happen to be taken for temporary purposes.’ In MEtna Insurance Company v. Aldrich (26 N. Y., 96) the court held that the law of Illinois was to govern as to the validity and effect of defendant’s mortgage because the contract was made in that State, and if valid there it was to be considered equally valid and to be enforced here. In Hoyt v. Thompson (19 N. Y., 224) it was held that the voluntary conveyance of personal property could, by the law of the place where it was made, pass title wheresoever the property might be situated. (See, also, Langworthy v. Little, 12 Cush., 109; Tones v. Taylor, 30 Yt., 42; Ferguson v. Clifford, 37 N. H., 36; Edgerly v. Bush, 81 N. Y., 109.)

      “ Much might be said in favor of protecting offir own citizens against the frauds arising from the non-delivery of the possession of personal property, and against exempting citizens of other States from the provisions of our laws, passed for the purpose of affording such protection. On the other hand it is evident that any other rule than that founded in comity before stated would be against public policy, as tending to cripple commerce and to restrict that free intercourse between the citizens of our State and those of other States and countries, which the public interests require should be encouraged.”

      Homer A. Nelson, for the appellant.

      LI. F. Wilkinson, for the respondent.
   Opinion by

Gilbert, J.

Present — Gilbert and Dtkman, JJ.; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.;

text:
    IDA I. ROSS, Respondent, v. JOSEPH ROSS, Jr., and FRANCIS MARKEY, Appellants.

      Construction of the condition of a bond — a frivolous answer may be stricken out, before the expiration of the time to amend.

    Appeal from a judgment in favor of the plaintiff, entered upon an order overruling the defendants’ answer as frivolous.
    This action was brought to recover the sum of $550 and interest, the penalty of a bond executed by the defendants. The condition of the bond provided that Joseph Ross, Jr., should pay to the plaintiff all costs and disbursements of the plaintiff to the 30th day of September, 1879, in a certain action then pending between the plaintiff and the said Joseph Ross, Jr., “ in sixty days after the same shall be ordered, paid by the said court.” The complaint alleged that on the 7th day of February, 1881, the court made an order that said Joseph Ross, Jr., pay to the plaintiff the sum of $778.15, his costs and disbursements in said action to September 30, 1879, “within sixty days after entering and service thereof on him.” That said order was duly entered and served on said Joseph Ross, Jr., on the 7th day of February, 1881, and that the time within which said costs and disbursements were to be paid has expired. This action was commenced on the 14th day of April, 1881, and an answer was interposed by the defendants, in which they allege, among other things, that pursuant to the aforesaid order the defendant Joseph Ross, Jr., had until April 7, 1881 (the sixty days after the entry and service of the order on him), within which to pay said sum of $778.15 mentioned therein, and that the penalty of said bond was not due until after sixty days from the said 7th day of April, 1881, and that said defendants were not yet liable on said bond.
    The court at General Term said: “ The condition of the bond upon which this action is founded, to pay the amount secured “ in sixty days after the same shall be ordered paid by the said court,” was performed when sixty days had expired from the entry of the order requiring the payment in sixty days from the date of the entry of the order and the service of a copy upon the obligors. It is not a reasonable construction of the words to hold that the sixty days only begun to run after the expiration of the sixty days during which the payment was ordered to be paid. When the costs were payable under the order they were enforceable under the bond. A frivolous answer may be stricken out as such before the time for amending the same has expired. It is therefore not an available ground for the reversal of the order in question that the defendants had an unexpired time in which they might have amended their answer. They did not ask to amend upon the argument of the motion to strike out their answer as frivolous, nor have they applied since.”

      Morris (& Pearsall, for the appellants.

      W. Henry Gale, for the respondent.
   Opinion by

Barnard, P. J.;

Gilbert and Dykman, JJ., concurred.

Order overruling answer and judgment thereon affirmed, with costs.


text:
    OTTO SPECK, Appellant, v. JANETTE M. GURNEE, Respondent.

      Contract by a ma/rried woman — whenever she buys on credit she benefits her sepa/rate estate to the extent of the purchase, and is liable for the price of the articles bought.

    Appeal from a judgment of the County Court of Rocldand county, reversing a judgment rendered in a justice’s court in favor of the plaintiff.
    The action was brought to recover the price of certain goods and merchandise, consisting principally of medicines and liquors, sold to the defendant by the plaintiff.
    The court at General Term said: “ The plaintiff plainly made out his cause of action against the defendant. She was a married woman and was living with her husband on a farm. Who owned the farm does not appear from the evidence. There was a difficulty between the husband and wife about a previous bill of plaintiff’s against them. It was then agreed by defendant that she would buy and pay for whatever goods she ordered from the plaintiff. The goods in question were subsequently ordered by defendant from plaintiff, and were furnished to her. It appears she had a separate estate, a fact no longer of any relevancy in cases like this. When a married woman gets property on credit she benefits her separate estate to the extent of the purchase. If she before that had no estate she made one by the purchase.”

      Geo. W. Weiant, for the appellant.

      Wheeler & Brown, for the respondent.
   Opinion by

Barnard, P. J.;

Gilbert and Dykman, JJ., concurred.

Judgment of County Court reversed, and judgment of justice affirmed, with costs.


author: Dykman, J.

text:
    William R. Welling, Appellant, v. Gilbert D. Ryerson, Respondent.

   Order directing subrogation affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Gilbert D. Ryerson, Respondent, v. William R. Welling, Appellant.

   Judgment affirmed, with costs. Opinion by

Dykman, J.


author: Gilbert and Dykman, JJ.

text:
    Charles R. Crisfield, Respondent, v. Mary Banks, Appellant.

   Judgment affirmed, with costs. Opinions by

Gilbert and Dykman, JJ.


author: Barnard, P. j.

text:
    Oscar F. Archer, Respondent, v. Thomas W. Radford, Appellant.

   -Order of County Court reversing judgment of City Court of Yonkers affirmed, with costs. Opinion by

Barnard, P. j.


author: Barnard, P. J.

text:
    Benjamin B. Buckhout, Appellant, v. Brady Sarles, Respondent.

   Judgment of County Court affirmed, with costs. ' Opinion by

Barnard, P. J.


text:
    David S. Dunscomb and another, trustees, etc., v. The New York, Housatonic and Northern Railroad Company.
   Order reversed as to that part thereof which grants allowances to counsel, and in other respects affirmed, with costs and disbursements. Opinion by

Gilbert, J.


text:
    Abram Acker, Respondent, v. The President, etc., of the Village of Sing Sing, Appellants.

   Judgment reversed and a new trial granted, costs to abide event; .order of reference vacated. Opinion by

Barnard, P. J.


text:
    Robert Blake, Respondent, v. Horace F. Flewellin, Appellant.
   Orders affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    In the Matter of the Petition of Ott to Remove Wagner, Justice.

   -Petition dismissed upon the papers presented. Opinion

by

Dykman, J.


text:
    Henry Parker, Appellant, v. Frederick Lanwersick and others, Respondents.

   Order affirmed, with costs and disbursements. Opinion by

Gilbert, J.


text:
    John Matthews, Appellant, v. Zadock Hubbell, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    In the Matter of the Petition of Margaret Elliott to Remove William H. Thomas from office.
   Motion denied with costs. Opinion by

Barnard, P. J.


text:
    Cornelius P. Hoffman, Respondent, v. Elisha Ruckman, Appellant.

   Order refusing to vacate report of referee affirmed, with costs and disbursements.. Opinion by

Gilbert, J.


text:
    Sarah I. Dickey, as sole Executrix, etc., Respondent, v. Daniel Coe, Appellant.

   Order reversed, with costs and disbursements. Opinion by

Dykman, J.


text:
    William J. Anderson, Respondent, v. Robert H. Berdell, Appellant.
   Order striking out answer and judgment reversed, with ten dollars costs and disbursements. Opinion by

Gilbert, J.


author: Dyeman, J.;

text:
    David S. Duncomb and another, Trustees, etc., v. The New York, Housatonic and Northern Railroad Company.
   — Order affirmed, with costs and disbursements. Opinion by

Dyeman, J.;

Gilbert, J., not sitting.


text:
    The People of the State of New York ex rel. John Fitzherbert v. Thomas J. Kenna, a Justice of the Peace, etc., Respondent.

   Judgment reversed. Opinion by

Barnard, P. J.


author: Dyeman, J.

text:
    The People of the State of New York ex rel. Joseph Tilney and Janet Tilney, Appellants, v. Michael O’Keefe, Registrar, etc., Respondent.
   Order affirmed, with costs and disbursements. Opinion by

Dyeman, J.


text:
    The People of the State of New York ex rel. Mary J. Farrar and Helen F. Isola, Appellants v. Michael O’Keefe, Registrar, etc., Respondent.

   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Maria Tice, Respondent, v. Henry N. Munn, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Christiana C. Althaus, Respondent, v. Thomas R. Sharp, as Receiver, etc., Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinions by

Gilbert and Dykman, JJ.


text:
    Ann Reese, Respondent, v. William Smyth, acting Superintendent, etc., and others, Appellants.
   Motion to dismiss appeal of Hartwell and others denied, without costs. Motion to dismiss appeal of Walls and others denied, -without costs. Motion to dismiss appeal of Russell, receiver, denied, without costs. Motion by defendant Boese to dismiss appeal of Russell denied, without costs. Judgment affirmed as to appellants Boese and Russell, receivers, with costs against each. Judgment affirmed as to Bernhard. Modified as to Glasson and Mengenthorn, without costs. Modified as to Levy, Freeman and Palmer, with costs to them. Modified as to those appellants who held policies in the New York Company, and who have paid premiums to the New Haven Company after the transfer without surrender of the old policy, affirmed in other respects. Order granting allowance affirmed. Order to be settled by Barnard, P. J. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    Leopold G. Beatse, Respondent, v. Thomas R. Sharp, Receiver, etc., Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Thomas White, Respondent, v. Thomas R. Sharp, as Receiver, etc., Appellant.

   Reargument ordered.


text:
    William Mackellar, Respondent, v. Martin B. Brown, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    William P. Roome and others, Appellants, v. Thomas M. Riley, Sheriff, etc., Respondent, Impleaded, etc.

   Order granting new trial affirmed, with costs. Opinion by

Gilbert, J.


text:
    Caroline Pope, Respondent, v. George W. Mead, Appellant, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Bernard Hufnagle, Respondent, v. The Board of Education of Union Free School District number one of the Town of Pelham, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Gilbert, J.


text:
    William H. Ricketts, as Receiver, etc., Appellant, v. Gerhard Wessels, Respondent.

   Judgment reversed, new trial granted, costs to abide event. Order of reference vacated. Opinion by

Gilbert, J.


text:
    Lydia Ann Pearsall, Appellant, v. Edward T. Backhouse, Respondent.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Otis N. Cutler, Respondent, v. John Satterlee, Appellant, Impleaded, etc.

   Judgment reversed and new trial granted at circuit, costs to abide event. Order modified so as to be without costs. Opinion by

Dykman, J.


text:
    Michael Loughran, Appellant, v. Susan M. Murray and Annie M. Enright, Respondents.

   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Gilbert, J., dissenting.


author: Barnard, P. J., and Dykman, J.;

text:
    Mary McGlynn, Respondent, v. The Brooklyn City and Newtown Railroad Company, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinions by

Barnard, P. J., and Dykman, J.;

Gilbert, J., dissenting.


text:
    Mary N. Bean, Appellant, v. Titus B. Eldridge, Respondent.

   Order referring action reversed, with costs and disbursements, and motion for reference denied, with costs. Opinion by

Dykman, J.


text:
    Elizabeth F. Floyd and Sarah A. Vingut, Appellants, v. Caroline A. Strong and others, Respondents.

   Judgment and order denying motion for specific findings reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    John Brady and others, Respondents, v. Cassius H. Read, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Gilbert, J.


text:
    William J. Crennan, Appellant, v. Philip R. Underhill, Respondent.

   Judgment affirmed, with costs. Opinion by

Gilbert, J.


text:
    Jacob B. Wells, and another, Trustees, etc., Appellants, v. Charles T. Wells and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Dykman, J.


author: Gilbert, J., Dykman, J., dissenting.

text:
    James F. Walsh, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Conviction and judgment affirmed. . Opinion by

Gilbert, J., Dykman, J., dissenting.


text:
    Abraham Kipp, Jr., Respondent, v. Barney Foshay, Appellant.

   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    John H. Burroughs and others, Appellants, v. Ellis R. Thomas and others, Respondents.
   Judgment reversed and new • trial granted, costs to abide event; leave granted to bring in Mrs. Fulsom. Opinion by

Barnard, P. J.


text:
    Jane C. Mead, Appellant, v. George D. Morgan and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.


text:
    Mary Ann Dunham, Appellant, v. Deborah H. Barkley and others, Respondents.

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

Barnard, P. J.


text:
    Isaiah Stoutenburgh, Appellant, v. The Dunbar Box and Lumber Company, Respondent.

   Exception overruled and judgment for defendant upon verdict affirmed, with costs. Opinion by

Gilbert, J.


text:
    John A. Smith, Respondent v. The Standard Oil Company, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Lewis Cuddeback, Appellant, v. Oscar F. Sherman, Respondent, Impleaded, etc.

   Beargument ordered.


text:
    Frances H. Walker, Plaintiff, v. Emma Reiff, Defendant.
   Judgment for plaintiff on submitted case. Opinion by

Dykman, J.


text:
    Nathan Winslow, Appellant, v. William King and others, Respondents.

   Part of judgment appealed from affirmed, with costs. Opinion by

Barnard, P. J.


author: Gilbert,-J.

text:
    Dora Austin, Appellant, v. John Lyon, Respondent.

   Judgment and order granting allowance affirmed, with costs. Opinion by

Gilbert,-J.


author: Barnard, P. J.,

text:
    John H. Livingston, Appellant, v. Alexander S. Burns, Respondent.

   Judgment reversed and new trial granted, costs to abide event. Order of reference vacated. Opinion by

Barnard, P. J.,


text:
    John Lang, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Conviction and judgment affirmed. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


text:
    Alexander Knowlton, Respondent, v. Henry C. Hart, Appellant.

   Judgment of County Court affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Philip Hertel, Plaintiff, v. Oscar F. Hawley, Defendant.

   Exceptions overruled and verdict for defendant and judgment thereon affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Charles L. Chatterton, Receiver, etc., Respondent, v. Mary E. Pine, Appellant, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Gilbert, J.