author: ADAMS, J.

text:
    Samuel R. Artis, Resp’t, v. Buffalo, Rochester and Pittsburgh Railway Company, App’lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed March 14, 1896.)

    1. Master and servant—Save place.
    It is the duty of the master to furnish the servant with a reasonably safe and proper place in which to prosecute the work required of him.
    3. Same.
    Where there is no pretense that such obligation has been fully met, and the place is rendered unsafe only by the intervention of a coservant, the master is in no wise responsible for such coservant’s negligence, unless he has either actual or constructive notice of the existence of the defect.
    Appeal from a judgment in favor of plaintiff.
    This action was commenced for the recovery of' damages for personal injuries to the plaintiff, alleged to have been caused by the defendant’s negligence, and at the trial at the circuit the plaintiff recovered a verdict of $6,500. The plaintiff, who was a brakemen of some experience, entered the service of the defendant in that capacity upon the 28th day of March, 1892, and at about 7 o’clock in the evening of that day he was furnished with a lantern by the defendants night yard mrster, at Lincoln Park, in the city of Rochester, and was by him assigned to work in the yard with the switching crew. In the course of his employment, and shortly after he commenced work, the plaintiff went up that part of the yard west of Lincoln Park station, to a switch where there was a train of coal cars. These cars were pulled from a side track out onto the main track. The conductor pulled a pin at the west end of the rear car, and that was kicked easterly down the main track by the engine. Certain other cars in the train were kicked back into the side track, and another car was kicked down |be main track; and the plaintiff, in attempting to couple this car to the car first above mentioned, was injured. His right hand was caught between the buffers or deadwoods, and crushed to-such an extent as to require amputation between the fingers and the wrist. The plaintiff claimed that he sustained his injury by reason of a defect in the defendant’s roadbed. The tracks in this yard were well ballasted, the gravel coming up to the level of the tops of the ties, with the possible exception of the point at which the plaintiff was injured, where, he testifies, there was a hole in the ballast, extending from the westerly rail to about the center of the main track, and, from one tie to another — that is, about ten inches—and of the depth of about eight inches.
    Henry Gr. Danforth, for app’lt; Charles Van Voorhis, for resp’L
   ADAMS, J.

This case is by no means free from circumstances which cast suspicion upon the bona fides of the claim which lies at its foundation. That the plaintiff, after receiving the injury complained of, and which crushed one of his hands so completely as to make subsequent amputation necessary; should deliberately request a coemploye to hold his lantern in proper position, so that he could examine and ascertain the cause of his injury, evinces á control of the nervous system so remarkable and rare that one is inclined to qualify his admiration for the courage displayed, with a slight tinge of scepticism. However, the story related by the plaintiff appears to have received the approval of the jury, and their verdict must therefore be regarded as removing the case from the realm of controversy so far as any issue of fact is concerned; and consequently the only question which demands our serious-consideration is whether or not the facts testified to by the plaintiff establish any cause of action against this defendant. The most that can be claimed from the evidence, which, so far as it relates to the accident, is confined to the plaintiff’s own testimony, is that-this plaintiff, with considerable experience in like occupations, entered into the defendant’s service on the 28th day of March, 1892; and that on that very night, while attempting, in the course of his. employment, to couple two cars whieh were coming together upon one of the tracks in defendant’s yard in the city of Rochester, he-stepped into a hole which had been left between two tracks; and that, in his effort to recover himself, he involuntarily threw his-arm up in such manner that his hand came between the.two cars,, and was crushed. He says that he then called to a man near him. (who, it seems, was the defendant’s witness Smith) to bring his lantern, and hold it so that he could see wha.t was the matter, and that he then, for the first time, discovered this hole, which was about ten inches wide and eight inches deep, and which had the appearance of having been dug out so as to enable some one to-tamp the ties, and then, left without being refilled.

In considering the question which this state of facts presents, it may be assumed that it was the duty of the defendant to furnish the plaintiff with a reasonably safe and proper place in which to prosecute the work required of him; and there is no pretense that the obligation which thus rested upon the master in this case' would not have "been fully met in the conditions which surrounded the plaintiff at the time he received his injury but for this hole, for without it the place in which the plaintiff was required to render service was, for aught that appears, as safe as could reasonably have been required, and it was only rendered unsafe by the intervention of some third person, who was unquestionably a track hand, and therefore a coservant of the plaintiff, for whose negligence the defendant was in no wise responsible, unless it had either actual or constructive notice of the existence of the defect in its roadbed. Filbert v. D. & H. Canal Co., 121 N. Y. 207; 30 St. Rep. 494.

The evidence in the case is quite meager so far as the question of notice is concerned, but the record fairly raises the presumption that this was not regarded as a very serious factor upon the trial. It is a fact, nevertheless, that at the close of the plaintiff's case, and when the motion for a nonsuit was entertained, there was not a scintilla of evidence to prove that the excavation had existed an hour prior to the accident. The plaintiff described its appearance, which, as we have already suggested, indicated that it was occasioned by some workman in an effort to improve the condition of the roadbed, but when and by whom the plaintiff does not attempt to show. When, however, th.e defendant was put to its proof, it was made to appear that this track had been frequently and almost daily examined by the persons upon whom that duty rested, and that no such hole as the one described by the plaintiff had been discovered by them. The case seems, therefore, to be altogether barren of any facts on which notice to the defendant can be predicated; and, deprived of this element, it is difficult to see how it can be maintained, or to find any evidence which will sustain a verdict. Haskins v. N. Y. C. & H. R. Railroad Co., 60 St. Rep. 817; 29 N. Y. Supp. 274, affirmed by the court of appeals 145 N. Y. 604; 65 St. Rep. 866. We are consequently of the opinion that the judgment and order appealed from should be reversed.

Judgment and order reversed, and new trial granted,"’with coste to abide the event of this action.

All concur, except WABD, J., dissenting.


source: Caselaw Access Project

author: HERRICK, J.

license: Public Domain

text:
    P. Howard Catlin, Resp’t, v. Josephine Rundle, App’lt.

      (Supreme Court, Appellate Division Third Department,

      Filed Jan’y 27, 1896.)

    1. Justice’s court—Judgment—'Validity.
    A judgment of a justice’s court, not rendered within four days after the trial and submission of the case to him by the parties, is void.
    2. Appeal—Void judgment.
    A void judgment is sufficient to support an appeal for the purposes of its review and reversal.
    Appeal from a judgment affirming the judgment of the justice of the peace.

      " Owen Cassidy, for app’lt; Waldo F. Bishop, for resp’t,
   HERRICK, J.

The plaintiff brought an. action against the defendant in the justice’s court. It was tried before and submitted to the justice, September 14, 1894. The justice rendered judgment against the defendant for the sum of $21.55 on the 21st of September, 1894. The defendant appealed from such judgment to the county court, which court affirmed the judgment of the justice’s court, and from such judgment of affirmance by the county court the defendant appeals to'this court. •

The judgment rendered by the justice was void, it not having been rendered within four days after the trial and submission of the case to him by the parties. Code Civ. Proc. § 3015; Putnam v. Van Allen, 46 Hun, 492; 11 St. Rep. 855. But, although the judgment is void, it is sufficient to support the appeal for the purposes of its review and reversal. Gillingham v. Jenkins, 40 Hun, 594, and cases cited.

The judgments of the county court and the justice’s court should therefore be reversed, with costs and disbursements of this appeal and the costs of the appeal to the county court.

All concur.


author: TRUAX, J.

text:
    Harry R. Farjeon, Pl’ff, v. John A. Fogg, Def’t.

      (Supreme Court, New York Special Term,

      Filed February, 1896.)

    Insurance—Condition precedent.
    Where a clause in a fire policy, executed by a firm as agents and attorneys in fact for various underwriters, whose names such firm attached to the policy, provides that no suits or other proceedings shall be begun "against any of the underwriters until after a suit has been brought'against the members of such firm, as the attorneys in fact, for the full amount of the loss or claim, and final determination of such suit, etc., the condition - precedent to the right of action on the policy is against public policy and void.
    Action by Harry R. Farjeon against John A. Fogg to recover ■a proportionate amount of the loss sustained by plaintiff’s assignor on a certain policy of insurance issued by several individuals, of whom defendant was one, known as the New York Central Lloyds, in which plaintiff demurred to the second defense. Demurrer sustained.
    ' Blumenstiel & Hirsch, for pl’ff; Jones & Gilbert, for deft.
   TRUAX, J.

Demurrer to the second defense. This action is brought against the defendant to recover a. proportionate amount of loss sustained by the plaintiff’s assignor upon a certain policy| of insurance issued by several individuals,.of which the defendant is one, known as the New York Central Lloyds. The complaint sets forth that on or about the- 12th day.of March, 1895, in consideration of the sum of $50, the defendant and certain other individuals, acting separately, however, and not one for the other or any of the others, did, by an instrument in. writing, duly subscribed by him (defendant), through Clark & Fitzgerald, the agents and attorneys in fact for the defendant, agree to insure one Jacob EL Cohn, of Chicago, to the amount set opposite the name of defendant, and of said other individuals, known as the underwriters of the New York Central Lloyds, in the sum of $5,000, for the term of one year from the 5th day of March, 1895, against all direct loss or damage by tire to the property mentioned, and described in a ■certain policy, which was then issued, duly subscribed by the defendant and the other underwriters, known as “Policy No. 18668,” which policy of insurance was duly issued to the said Jacob H. Cohn, through Clark & Fitzgerald, the agents and attorneys in fact for the said defendant and thé other underwriters; that the amount which the defendant agreed to be responsible for in the policy was the sum of $192 8-26; that a fire occurred on March 26, 1895, whereby the property insured was damaged in the sum of $79,859.50; that thereafter the loss was adjusted by adjusters duly representing the New York Central Lloyds and the defendant, and fixed at $52,000; and that the amount of loss applicable to the said policy pursuant to the adjustment was the sum of $3,-795.77, and the said Clark & Fitzgerald, acting for the defendant and the other underwriters, agreed to pay the same to Cohn; that all the terms and conditions of the policy required to be performed by Cohn; that all the terms and conditions of the policy required to be performed by Cohn were duly complied with; .that by the terms of said policy, duly executed by the defendant, it is provided that in no event or contingency shall any underwriter be liable for any portion of the other underwriters’ liability, and that the liabilily assumed by each underwriter shall be separate and individual, as if each underwriter had issued o'r subscribed a separate policy, their liability being several and not joint; that prior to the ■commencement of the claim was assigned to the plaintiff, and that the proportionate amount of loss as adjusted, which, by the terms of the policy, the defendant is liable to pay, is the sum of $145.99, payment of which has been demanded and refused. The defendant, by his answer, admits the issuance of the policy by himself and other individuals known as the underwriters of the New -York Central Lloyds, and that the amount which the defendant agreed to be responsible for under the policy is correctly stated in the complaint. All the other allegations in the complaint are denied, and then as a separate defense it is alleged as follows:

“For a second and separate answer and defense herein this defendant alleges that under the terms and conditions of said contract and policy of insurance mentioned in the complaint it was mutually agreed between the insured and this defendant, and each one of said underwriters, that no suits or other proceedings at law or in equity should, in any event, be begun or maintained by the assured for the recovery of any claim upon, under, or by virtue of said policy, or to enforce the provisions thereof against the individual underwriters thereon, or any of them, or against the defendant, until after suit shall have been brought against Milton Clark and John W. Fitzgerald, as attorneys in fact, for the full amount of the loss or claim, or full and complete relief claimed under said policy, and until after the final determination of such suit or proceeding; it being further mutually agreed that the time required for the final determination of said action, and thirty days thereafter, should not be considered as any part of the twelve months limitation mentioned in said policy. This defendant alleges that these covenants and agreement provided that such action against the said Clark and Fitzgerald as attorneys in fact was a condition precedent to the beginning of this action; that no such suit against Clark and Fitzgerald has been commenced by plaintiff, and the said condition has not been complied with, and the plaintiff cannot now maintain this action.”

I am of the opinion that the demurrer must be sustained. The condition precedent set up in thesecond defense requires plaintiff to bring an action at law upon a contract against certain persons who never were parties to the contract, and never, by devolution, assumption, novation, or otherwise, assumed any obligation thereon^ that is, it requires plaintiff to bring an action against persons against whom he has no cause of action. This provision is against public-policy, and therefore void. This case is to be distinguished from that class of cases in which the obtaining of a certificate from an architect or engineer as' 'to the amount and value of the work done is a condition precedent to the commencement of an action. Such conditions precedent were before the courts in Byron v. Low, 109 N. Y. 291, 14 St. Rep. 823, and Sweet v. Morrison, 116 N. Y. 19; 26 St. Rep. 445, and were held valid.

The demurrer is Sustained, with costs.


author: INGRAHAM, J. O’BRIEN, J.

text:
    Henry Otten, App’lt, v. Manhattan Railway Company, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed March 13, 1896.)

    1. Appeal—Review.
    Where the decision of the court, upon which the judgment is entered, is o'ne stating concisely the grounds upon which the issues have been decided, and not one that states separately the facts found, the court is required to review all questions of law or fact presented upon the record.
    3. Eminent domain—Compensation.
    Where an allevated railroad company appropriates to its own use the easement of an abutting owner in a street, without the latter’s consent or any legal right, instead of acquiring title to it in a legal manner, the condition of the property at the time of the determination, and not its condition at the time of the appropriation, is to be considered in determining whether such owner is injured to the amount of his damages.
    3, Same.
    The maintenance and operation of defendant’s road, in this case, were held to be a substantial injury to the plaintiff.
    Appeal from a judgmen tin favor of defendant.
    W. W. Badger, for app’lt; Brainard Tolies, forresp’t.
   INGRAHAM, J.

This action, brought to restrain the defendant from a continuous trespass upon the plaintiff’s easement in Columbus avenue, near Ninety-Eighth street, in the city of New York, was decided in favor of the defendant, upon the ground that the evidence did not show that the injury sustained by the plaintiff in consequence of the trespass exceeded the benefit to the plaintiff’s property from the maintenance and operation of the defendant’s railroad.

The decision of the court upon which the judgment was entered was one stating concisely the grounds upon which the issues had been decided, and not one that stated separately the facts found. We are therefore required to review all questions of law or fact presented upon the record. See section 1022 of the Code. The plaintiff’s property consists of two buildings, 25 by 60 each, the lots 74 feet deep, situated on the easterly side of Columbus avenue, between 98th and 99th streets. The buildings are used as stores upon the ground floors, and as apartments upon the floors above. There are five stories that are occupied and rented by plaintiff for diving apartments. The structure of the elevated railroad in front of the premises is 47 feet and 7 inches from the surface of the street to the rail. It is just level with the sill of the fifth-story window of the plaintiff’s premises, and consists of three tracks, two of which are used for the ordinary way-passing trains, while the center track is used for express trains. The evidence is that such express trains pass this point at a speed of about 30 miles an hour. The evidence as to the obstruction and interference with the plaintiff’s easement establishes, beyond a doubt, that the interference here is most serious, and, in consequence of the height of the structure, and the use that is made of it, is a substantial injury to the plaintiff’s property. The whole front of the building is covered by the structure and the passing trains, and the use of this third track for express trains, at the speed with which they pass the premises, in addition to the local travel, must be a serious interference with the use of the premises for living purposes. The court below; however, recognizing this condition, dismissed the complaint, because it appeared that the benefit which the plaintiff derived from the maintenance and operation of this road equaled or exceeded the injury thus caused.

The decision of this case depends upon the determination of the ■question as to what, if any, benefit this plaintiff derives from, the maintenance and operation of this road. We recognize the principle, that is well established, and which is the foundation of the administration of equitable relief by way of injunction, that, to justify such an injunction, the injury to the complainant must be proved to be substantial; that a court of equity will not interfere, by this discretionary writ or mandate, to remedy a wrong which causes no substantial injury; and that, although a legal title may be interfered with, where such interference does not cause continuing substantial damage, a court of equity will leave the parties to their action at law. And this principle has been applied, by a late decision of the court of appeals, to actions of this character, by a very convincing opinion, by Judge Gray, in the case of O’Reilly v. Railroad Co., 148 N. Y. 350. And if it appeared that, although this trespass by the defendant upon the plaintiff’s property — this wrongful and unauthorized use by the defendant of the plaintiff’s right and interest in this street—-was really a benefit to the plaintiff, instead of an injury, and that the present removal of this elevated railroad from this street would be a greater inj ury to the plaintiff’s property than the maintenance and operation of the road, it is clear that the court was right in refusing to give to the plaintiff any relief in equity, leaving the plaintiff to his action at law for damages.

In considering this question, however, it should be remembered that we have to determine just what effect the maintenance and operation of this elevated railroad have upon the plaintiff’s property at the present time. It is not the condition of this property 15 or 20 years ago, when the road was first built, that has to be considered. If the defendant had then taken and paid for the property that it required in the street, instead of wrongully appropriating it to its own use, without consent or legal right, it would have been the value of the interest of the plaintiff in the street at that time that defendant would have had to pay for. This defendant, however, saw fit to seize the plaintiff’s property, and use it without right or authority, instead of purchasing it, or acquiring title to it in a lawful manner; and now, when it is called to account for its act, it-is the condition of affairs at this time that is . to be determined. It is the value of the plaintiff’s property now that is to be ascertained, and the question is whether or not the maintenance and operation of this road is an injury or benefit to the plaintiff’s property at the present time. If this road were now removed, with existing conditions, with existing methods of transfer from the plaintiff’s property to the other parts of the city, would plaintiff’s property be worth now more or less than it is with the road maintained and operated ? The fact that, 15 or 20 years ago, access to the property was difficult and tedious, and that the building of the railroad made it more accessible, and added to its then value, and that its then holder was enabled to sell it for a greater price, would not be material in this investigation ; for, as before stated, we now have to ascertain what the easement in this street appurtenant to plaintiff’s property is now worth, and , its value depends upon whether its appropriation by defendant is at present a benefit or injury to the property.

Considering the question in this aspect, I think it cannot be disputed but that the maintenance and operation of this structure is a substantial injury to th'e plaintiff. This property is about midway between the two stations of the elevated railroad; one station being at 93d street and the other at 104th street; sotdiat, in order to use the elevated railroad, a person has to-walk from 98th street to 93d or to 104th street, being upward of a quarter of a mile.' The evidence shows that the benefit to the property midway between stations is the minimum benefit that it can receive from the railroad. It also appeared, from the evidence introduced by the defendant, that ■ this property now has an available means, of transportation to the other parts of the city, the Eighth avenue horse cars, three lines of ■ horse cars upon Amsterdam or Tenth avenue, one line of horse cars on the Boulevard, a cable road on Columbus avenue, which is a continuance of the present Broadway road. It also appeared that, taking the surface cars passing in front of this property, a person could go from this point to the Battery in al out the same time as, or a shorter time than, by the elevated railroad, and that without having to walk or take another conveyance for the five blocks to the elevated railroad station.

We have, thus, the undisputed facts that this structure is an impairment of the plaintiff’s right to the use of the street, and that the location and use made by the defendant of this structure in the streets seriously affect the use of the plaintiff’s property. It also'appears, without dispute, that other means of communication from this property to the other parts of the city are afforded to the plaintiff, which are at least as convenient and rapid as those offered by the defendant That being the case, is it not apparent, without further evidence, that at the present time, and as at present and operated and maintained, this railroad gives to the plaintiff no substantial benefit, while its operation and maintenance are a substantial injury? This defendant’s continued use of the street is a trespass, and is wrongful. Unless this defendant condemns and pays for this plaintiff’s right in the street that it now uses, the plaintiff has a legal right to have the structure removed and the trespass cease. If such removal of the structure maintained and used by the defendant, and the discontinuance of its operation, would to-day cease to cause injury to the plaintiff’s property, but would improve the property so as to give to the plaintiff, greater rents for the parts rented, and his means of access to his property would not be affected, then it is clear that it is the duty of the court to require the defendant to remove the unauthorized and illegal structure, unless the value of the easement or property that is used should be paid to the plaintiff.

The learned judge, in his opinion, states that the property on Columbus avenue in front of this road has increased in value at a very much smaller ratio than the property in the adjoining streets; that the benefit that has accrued to property in this locality by reason of the growth of the city has fallen largely upon property in the adjacent streets, and in a comparatively small degree upon property upon the avenue through which passes this defendant’s road. It is useless to analyze the evidence. It is sufficient to say that, from an examination of it, we are satisfied that this conclusion of the trial judge was correct, and that his conclusion that the removal of the defendant’s road would be a more serious injury to the premises than its continued, operation and maintenance was erroneous.

It follows, therefore, that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

O’BRIEN, J.

(dissenting).—This is the usual action for an injunction and damages. The .premises consist of two lots of land on the easterly side of Columbus avenue near 98th street, known by the street numbers, “783 and 785 Colufnbus Avenue.” Each lot has a frontage of 25 feet and a depth of 74 feet. Upon the premises are two flat houses, five stories high, with stores on the .ground floor, and apartments for two families on each of the floors ■above. The plaintiff purchased these houses in January, 1888, for $21,500 each. . The elevated railroad in Columbus avenue was built in 1878.

The question presented is, does the evidence show that these premises suffered any consequential damages, fee or rental, by reason of the construction and operation of the road ? It is conceded that, prior to the construction of the road, the locality was vacant and unimproved, and lots were worth from $2,000 apiece in 1876 to $3,500 in 1879, and according to the defendant’s ■expert, are now worth from $17,500 to $18,000. This increase in value was contemporaneous with the construction of the road, and was followed by extensive building operations, which took place •earlier and more rapidly on Columbus avenue than on any of the other parallel avepues. The extent of the population which moved into that territory is to some degree shown by the fact that the increase in traffic was from $27,380 for three months in 1879 to over $3,000,000 for the -year 1893. It also appears that, before the building of the road, lots fronting ■on Central Park were more valuable than those on Columbus avenue between the same cross streets, while now the reverse is - true; and though increased facilities in the way of cable and other .surface roads have made this property easier of access, it is beyond dispute, upon the evidence, that before their advent, the elevated road had given a great stimulus to property in this section of the city, and greatly enhanced the value of lots. To such a condition the language of the court in the Bookman Case, 147 N. Y. 298; 69 St. Rep. 659, is apposite:

“ Where an elevated street railroad enters a vacant and uninhabited locality, which normal growth has not effectively reached which improvement has not seriously touched, which remains to be developed, and which has no element of growing value except such as lies in hope and expéctation, and thereupon and thereby population and growth, tending elsewhere, are diverted to the new lines of rapid transit, and build up the vacant locality, creating a demand for lots, and a steady and persistent increase of values, both directly on the line and in the side streets, near by, "the only reasonable and sensible inference is that the increased values are the sole and substantial product of the newly-opened line, which has brought prosperity to a neglected locality. So far as normal growth or incoming population has anything to do with the.increase of value, they are themselves, as operating causes, due to the new mode of access, and in no respect separate from or independent of it.”

And in that case, although there was evidence to show that, in the streets just off the line of the road, the increase was greater, the court refused to give anv weight to such testimony, and followed Bohm v. Met. E. R. R. Co., 129 N. Y. 576; 42 St. Rep. 247, in which, upon similar evidence appearing, an award of damages was denied.

The evidence showing the growth and development and increase of values in this locality, and the extent thereof, is affirmed by ■every witness, except one expert on behalf of the plaintiff, who while admitting such increase in values contemporaneous with and subsequent to the building of the road, does not place it as high as the other witnesses. As shown, however, this man testified that he had been a broker but about five months, and that his business prior to that time had been that of a builder, and his cross-examination shows very little familiarity with the purchase and sales of property, and cannot be regarded as outweighing that of the three experts presented on behalf of the defendant, who had extensive dealings in property on the line of the road in that section, and who were familiar with values, having themselves been engaged in buying and selling such property. There is, upon the question of rental damage, plaintiff’s own testimony that, shortly after buying the property, he slightly reduced the rents of tenants above the stores, the store rent remaining the same since the purchase. That this fact of a slight reduction in rents just about the time the plaintiff purchased, in order to make them conform to the rental value, is not, standing by itself and unexplained, proof of rental damage, has been held in two cases: McCready v. Man. Railway Co., 76 Hun, 531; 62 St. Rep. 473, and Storm v. N. Y. E. Railroad Co., 82 Hun, 11; 63 St. Rep. 351. It thus appears, from the testimony that the property has steadily increased in value, both fee and rental, since the construction of the elevated road, and that such increase has been due to the existence of the road. The conclusion, therefore, that the road was a benefit, and not an injury, to this property, is not impaired by the fact appearing that, by reason of the construction of other means of transit, in the way of surface roads, east and west, an additional impetus was given to the value of properties, which derived benefits from the means of access thus furnished, and which therefore, by reason of the greater advantages, show a slightly greater increase in values than these premises along the elevated road.

It is true that the question is to be viewed, not as to the benefits conferred upon property in the past, but, as correctly stated in the prevailing opinion, as to whether or not the maintenance or operation of this road is an injury or benefit to the plaintiff’s property at the present time.” And thisj 1 think, is to be determined by the answer to the question propounded:

“If this road were now removed, with existing conditions, with existing methods of transfer from the plaintiff’s property to the other parts of the city, would plaintiff’s property be worth now more or less than it is with the road maintained and operated ? ”

While the inference may be drawn, from all the testimony of values, that such value would be less, we are not confined to that, in view of the testimony furnished by one of plaintiff’s own. witnesses, who gave it as his opinion that rents in this district would be reduced one-third if the advantages of the elevated road were withdrawn. And in the recent case of O’Reilly v. Railroad Co., 148 N. Y. 350, the court, in commenting with approval, upon the cases of Hunter v. Man. Railway Co., 141 N. Y. 281; 57 St. Rep. 400; and Doyle v. Met. E. Railway Co., 136 N. Y. 505; 49 St. Rep. 746; then referred to the Bookman Case, supra, saying r

“ It was held that the decree recovered by the plaintiff was-erroneous, in view of the fact that the plaintiff’s property was injured by the railroad over and above all benefits conferred was-wholly unsupported by the proof. The theory adopted in that case by the court in its decision was, practically, that if benefits only are shown to have been caused, as the result óf the construction and operation of the elevated railway, the complainants are without right to equitable relief, as well as not entitled to any award of damages.’’

So here I fail to find any evidence of resultant damage, the record disclosing that such as may have been caused by the building of the road in front of these premises was more than offset by the advantages which they derived in the past, and are now deriving, as the result of the construction and operation of the road. The record, therefore, having failed to shew that there was any consequential damage inflicted, either rental or fee, the learned trial judge was justified in dismissing the complaint, and the judgment appealed from should be affirmed.


text:
    Lester M. Godley et al., Resp’ts, v. Kerr Salt Company, App’lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed March 14, 1896.)

    Costs—Extra allowance.
    Under section 3253 oí the Code, an action to restrain the diversion or pollution of the waters of a stream by a manufacturing company, where-no damages are claimed, affords no basis for computation of an extra allowance.
    Appeal from an order refusing an extra allowance pf costs.
    This is a suit in equity to restrain the defendant from diverting or polluting the waters of Oatka creek, to the injury of the plaintiffs, who are the owners of various mills and manufactories along the line of that stream. The" plaintiffs charge that the defendant has established and maintained salt works upon the same stream, at a point above the plaintiffs’ several properties ; and that it has-been in the habit of operating its works by sinking deep wells-into the underlying salt beds, using the water of the stream in large quantities for flooding the wells, dissolving the salt until the water is saturated, then withdrawing the brine, and evaporating it, in such manner that a considerable quantity of the water is diverted from the stream; and that such- portion thereof as ultimately finds its way back into the stream is greatly polluted and rendered unfit for use. Upon this alleged state of facts, the-plaintiffs, expressly reserving any and all right to damages until they can resort to their appropriate legal remedy, ask that the defendant be enjoined “ from diverting or making use of the water of the said stream, or of any tributary thereof, for the purpose and in the method hereinbefore set forth, or in any other method which shall prevent the same from being restored (to the stream) substantially in the same volume in which it is diverted therefrom, and in its natural purity, and without pollution or contamination.” The answer admits that the defendant “makes a reasonable use of a small portion of the water,” but only so much as is, necessary for its operations; insists that such use is lawful and' proper ; and denies the remainder of the complaint. The issues thus joined came on for trial at the Wyoming special term. The trial consumed nearly a week, and resulted in a dismissal of the plaintiffs’ complaint.
    Morris Morey, for app’lt; Theodore Bacon, for resp’ts.
   ADAMS, J.

Section 3253 of the Code of Civil Procedure provides for the granting of an extra allowance “in a difficult and extraordinary case, where a defense has been interposed in any action,” which shall not exceed the sum of five per centum “upon the sum recovered or claimed, or the value of the subject matter involved.” That this case was sufficiently difficult and extraordinary to authorize the court, in the exercise of its discretion, to award the defendant a reasonable sum by way of additional costs, is not seriously controverted; and it is fair to assume, from the record furnished us, that the defendant’s motion would have proved successful but for the fact that the special term was unable to discover any basis upon which a computation could be made. The sole .question, therefore, which this court is called upon to consider, is whether or not the “subject-matter involved” in this litigation can be reduced to a money val ue.

The action is virtually one to restrain the continuance of a nuisanee. Mo damages are asked for in the complaint, and no relief is demanded other than that the defendant be enjoined from a further commission of the acts complained of; nor does the answer contain the averment that any injury of damage would result to the defendant if the relief sought were granted; but, upon the motion, affidavits were read by the defendant, which tended to show that its salt plant, in the condition in which this action found it, was worth $220,000, but that, if deprived of the water drawn from the stream in question, it would not be worth to exceed $20,000 ; and upon this statement it rests its contention that $200,000 is the value of the “subject-matter involved,” and consequently the basis upon which a computation can be made. This proposition certainly possesses the merit of ingenuity, and it is supported by an array of authorities which it is insisted by the learned counsel are conclusive upon the question; but, after a careful examination of the same, we are persuaded that the weight of authority, at all events, is adverse to this contention. Without any intention to analyze all the cases which attempt a definition of the term “subject-matter involved,”—an undertaking which it inay as well be conceded would in many instances be by no means free from difficulty,—it is worth while, perhaps, to advert to a few of the leading ones. In the case of Lattimer v. Livermore, 72 N. Y. 174, where the plaintiff sought to restrain the defendant from making certain permanent errections which would have the effect to destroy a valuable easement, it was held that the easement was the subject-matter involved, because that was what was directly affected by the relief demanded. In Ogdensburgh & L. C. R. Co. v. Vermont & C. R. Co., 63 N. Y. 176, the plaintiff sought to determine the validity of a lease of its road, and the right to the possession of the entire road was thereby necessarily involved, for, as was said by the court, “if the lease was held invalid, the plaintiff was entitled to the possession.” And it was shown that the actual value of the road was $5,000,-000, and of the annual rental at least $400,000. An extra allowance was granted, upon the basis which these figures furnished; and this the court of appeals said was error, for the reason that the title to the road and the right to its possession were only incidentally involved, and that the real “subject-matter”, was the lease, the value of which must furnish the only correct basis upon which a computation could be made. So, in Conaughty v. Bank, 92 N. Y. 401, which was an action brought to restrain a corporation from the exercise of.its corporate franchise, it was held that the term “ subject-matter involved ” referred simply to property or other valuable thing “the possession, ownership, or title to which is to be determined by the action, and does not include other property, although it may directly or remotely affected by the result.” To the same effect is the case of Spofford v. Land Co., 41 N. Y. Supr. Ct. 228, while in Rothery v. Rubber Co., 24 Hun, 172; affirmed, 90 N. Y. 30, it was expressly held that in a case like the one at bar an allowance must be computed upon the damages recovered or claimed, and not upon the value of the plaintiff’s property affected by the nuisance.

In this connection, the inquiry suggests itself whether, if the plaintiffs had claimed $5,000 damages in their action, any question could possibly have arisen as to the proper and only basis upon which an additional allawance could have been computed; and, if not, then how can the omission to claim pecuniary damages require the adoption of any different rule? The case which seems to approach nearer than any other to the defendant’s standpoint is that of Empire City Subway Co. v. Broadway & S. A. R. Co., reported in 87 Hun, at page 279; 67 St. Rep. 741, which was an action to restrain the defendant from maintaining a subway and conduit for electrical conductors in the streets of New York City. It was shown that the value of the subway was $60,000, and that the use of the conductor was worth $700 per mile, and this was held to furnish a sufficient basis for computing an extra allowance. But here, also, it will be found, by careful examination, that the conclusion reached was by reason of the fact that the value of the subway and the use of the conduct were directly, and not incidentally, affected by the result of the action. In other words, the plaintiff was endeavoring, by means of an injunction, to prevent the defendant from using its property altogether, and herein lies the real distinction 'between that case and the one in hand. Had the plaintiffs in this action sought to enjoin the defendant from operating its plant in any manner, there would be some force in the contention that the entire property would be directly affected by the result, and consequently that it constituted the subject matter of the action, but, as we have seen, such is not the case. The plaintiffs simply demand that the defendant shall conduct its business in such manner as not to befoul or diminish a stream of water in which the parties have a .common interest; and this demand is now met with the claim that, unless the defendant can operate its works in the manner complained of, its entire property will suffer from depreciation in value, in which event it is quite manifest that the damage sustained would be incidental or consequential, and not direct. People v. Genesee Val. Canal R. Co., 30 Hun, 565, affirmed, 95 N. Y. 666. It can be easily demonstrated that the plaintiffs’ various properties were, quite as much, if not more directly, involved in this litigation, than was the “plant” of the defendant; and yet it would not be seriously claimed that, in the absence of any demand for' pecuniary damages, their value would have afforded a proper basis for an additional allowance, had the suit terminated adversely to the defendant. We are led by these considerations to the conclusion that the defendant’s motion was propely denied, and that the order appealed from should consequently be affirmed.

Order affirmed, with $10 costs -and disbursements.

All concur.


author: BARRETT, J.

text:
    The People ex rel. James Mitchell, App’lt, v. O. H. La Grange et al., as Fire Commissioners, etc., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 13, 1896.)

    1. Municipal corporation—Oeeicbr—Removal.
    Under section 48 of the Consolidation Act, a right to a formal trial upon the evidence is not given to the head of a bureau in any of the departments of the city government.
    2. Same.
    The fire commissioners of the city of New York may exercise their power of removal of the head of a bureau upon facts within their own knowledge, or upon information which they have received, and testimony is not required to be taken as the basis of their action.
    3. Same.
    But the cause assigned must be substantial and not shadowy, and the explanation must be received and acted upon in good faith, and not arbitrarily.
    4. Same.
    If they assign the cause upon facts within their own knowledge, they must so inform the accused; if they assign such cause upon information alone, they must furnish the accused with the nature of such information.

      5. Same.
    If, upon the explanation given by the head of a bureau, there is no reasonable doubt of the innocence of the accused, the law will not permit the commissioners to frustrate its purpose by the mere bald assertion of doubt.
    Certiorari to review the proceedings of the board of fire commissioners of the city of New York, resulting in a dismissal of the relator from the position of fire marshal in the city of New York. ........__
    William B. Ellison, for relator; William L. Findley, for resp’ts.
   BARRETT, J.

The cases where the dismissal of police officers and firemen have been reviewed upon certiorari are inapplicable here. These officials are entitled by law to a regular trial, and the court, upon certiorari, is authorized to review the testimony to the extent and in the manner provided in section 2140 of the Code'of Civil Procedure. No such right to a formal trial upon evidence is given to the head of a bureau in any of the departments of the city government. The provision of section 48 of the Consolidation Act limits their right in this regard to information as to the cause of the proposed removal, and an opportunity of making an explanation. It is well settled that the commissioners may exercise their power of removal upon facts within their own knowledge, or upon information which they have received, and that testimony is not required to be taken as to the basis of their action. People v. Thompson, 94 N. Y. 451. It is equally well settled that the cause assigned must be substantial, and not shadowy; and that the explanation must be received and acted upon in good faith, and not arbitrarily. To be substantial, the cause assigned must be some dereliction on the pan of the subordinate, or neglect of duty, or something affecting his character or fitness for the position. People ex rel. Munday v. Fire Com’rs, 72 N. Y. 445; People ex rel. Sims v. Fire Com’rs, 73 id. 440. It is no cause of removal that some other man is a better than he, or more congenial to the appointing or removing power. Allen, J., in the Munday Case, 72 N. Y. 449. If the cause assigned is not substantial, the removal is invalid. If it is substantial, the commissioners may rest upon it without legal proof. If. however, they assign the cause upon facts within their own knowledge, they -should so inform the accused. If, on the other band, they assign such cause upon information alone, it would be but fair and just to furnish the accused with the nature of such information. How else can he “explain?” The opportunity of explanation is his sole, and somewhat meager, right. For that very reason it should be carefully guarded and enforced. The origin of the charge should not be so veiled as practically to "deprive the accused of making his explanation advisedly, and of presenting it fully and thoroughly.“An explanation,” said Allen, J., in the Munday Case, “may consist either of excusing any delinquency or apparent neglect or incapacity,—that is, explaining its unfavorable appearances, or disproving the charges.” To do this efficiently the accused must not have to grope in the dark. He should know, not only the technical charge, but upon what, in fact, it is based. It is apparent that, to enable the accused thus to explain, he must be apprised, mot only of the general charge, but of the specification. He must know,too, whether his explanation should be addressed to removing some personal misunderstanding of the commissioners, or to dissipating unfavorable appearances stamped upon their minds by inaccurate information, or by a mistaken view of accurate information. All this proceeds upon the theory that the commissioners are acting in good faith, and are not seeking to evade the statute. They are aware that the provision in question was, as Allen, J., observes in the Munday Case, supra, “ intended as a substantial limitation” upon their “general power of removal, and to secure the continuance in office of the person named until a reasonable cause, other than the pleasure of the heads of the departments, or a change in the political character of the majority, should exist for their removal.” This wholesome doctrine was laid down as far back as the year 1878. It is accentuated by the spirit of later legislation, especially by the modern civil service acts.

It is apparent that, to give due effect to the act under consideration, not only must the charge be substantial, and the specification clear, but the explanation should be received and acted upon in good faith. This explanation is not a mere form to precede a predetermined removal. The minds of the commissioners must be open to the explanation. They must act upon it fairly and reasonably. They cannot arbitrarily disregard it. If it is such an explanation as should satisfy any fair-minded man, if it admits of no reasonable inference of dereliction or incompetency, it cannot be denied its due effect in acquitting the accused, and securing his continuance in office. The commissioners must be ■ satisfied with the explanation if it is clearly satisfactory. The law requires good faith even where the parties have contracted for personal satisfaction. A good reason must be then assigned for dissatisfaction. The doptrine is that “ that which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with.” Boiler Co. v. Garden, 101 N. Y. 390. A different rule applies in matters of taste and fancy. There the contract is subject to the “ pleasure ” of one party. These rules should be applied to public relations quite as liberally as to private contracts. The law which we are considering in effect declares that the commissioners shall not, in the particulars under discussion, gratify their fancy, serve their personal convenience, or satisfy their individual preferences, and, consequently, that they shall not remove at their pleasure. It impliedly declares, on the contrary, that before they remove they must be satisfied that there is just cause for removal. Their “satisfaction,” consequently, must not be a pretense. If, upon the explanation, there is no reasonable doubt of the innocence of the accused, the law will not permit the commissioners to frustrate its purpose by the mere- bald assertion of doubt.

This brings us to the consideration of the merits of the case at 4bar. The forms of law were technically complied with. Causes of removal were assigned, and an opportunity of explanation was-afforded. We have carefully analyzed these causes, and we are-oi the opinion that they are unsubstantial, and, in view of the relator’s explanation, wholly without merit. We will examine them seriatim. They are four in number. The first is undoubtedly the least trivial. It charges the relator with having permitted an assistant fire marshal, named Frank, and a detailed detective policeman, named Lenz, to remain on duty in his bureau for years after he whs informed of their unworthiness and, unfitness; also that, while in almost daily contact with them, he failed to discover that they were the associates and allies of ineendaries ; and that he only permitted Frank to resign, and only requested that Lenz be relieved from duty, after Frank was known to one of the board of underwriters to be corrupt. These charges are-based upon what happened prior to the advent of the respondents-as fire commissioners. -Consequently the charges were not based upon their own personal knowledge or observation. Indeed, the charges are in terms made solely upon information. What that information was, the notice did not convey to the relaton He asked for it, and it was refused him. He was told that the “ allegations were sufficiently specific to inform his mind.” Yet the “information” was subsequently sprpad upon the final judgment of removal. The importance of that information to the accused —nay, the absolute necessity that he should have it in order to make any useful explanation—is apparent when we consider what it was. It consisted (so say the respondents) of “ evidence furnished by the records of the department, investigation made by and furnished to its members in the discharge of their official duties,, and testimony given .by the relator before a committee of the-senate,—testimony given over four years before these charges-were made. Thus the relaior was really denied an opportunity of explanation. What testimony had the relator given before a senate committee ? What appeared in the records of the department? What investigation was made by the commissioners ? What evidence was furnished to them? Nota word of all this-was intimated to the relator. Not a word is now furnished to-the court. The record is a blank page as to the very matters upon which the relator has been thus condemned unheard. He has not only been condemned upon information which was denied him, but upon charges which were never serven upon him; for we find that the particular charge which we are-considering was amended, strengthened, and amplified in the judgment. We find, too, distinct and additional charges embraced in the findings, charges of a sweepingly general character, which were never served upon the relator, and which presumably he heard of for the first time when he read his conviction. The charge which was served upon him proceeds upon the inaccurate-, assumption that the relator had power to prevent Frank and Lenz from remaining on duty in his bureau. The rest, in its vague and general form, amounts to but little more than an accusation that the fire marshal was not gifted with powers of divination, that he, lacked intuition, and that he was not as suspicious or shrewd as; he should have been. The entire charge ignores rhe fact that the fire marshal had no power to appoint, retain, or remove either of these men. The judgment ignores the uncontradicted explanation that the fire marshal had no control over them ; that they were put where they were by his superiors; that they were aetually assigned to specific duty by these superiors; that Frank was-actually in charge of the bureau when the- relator was appointed fire marshal; that he was left no discretion as to the assignment of his assistants; and that the moment he discovered the misconduct of these men he recommended their removal. The judgment ignored, "too, conclusive evidence of the truth of what was material in this explanation, consisting of sworn copies of actual orders of the board of fire commissioners.- It also ignored the statement of one of the former commissioners to the same effect. Having ignored the explanation, it proceeded to develop and add to the original charges, to specify information which it had refused to-furnish to the accused, and to convict him upon the new charges-as well as the old, and to so convict upon such undisclosed information in support of both. It is clear that there was no juristification for removal upon this charge. The case for removal was far weaker than it was in People v. Campbell, 82 N. Y. 247, where the court of appeals held that there must be some evidence-(undoubtedly intending by the word “ evidence ” to convey the idea of some founded ground of removal) to justify a removal; and where there is none the removal is not for cause, and the order may be reversed.

The second charge is open to the same criticism as the first. Having here accused the relator of permitting a newspaper article to be compiled or tabulated from the records of the bureau, they convicted him as well of addressing a communication to the editor of the newspaper, relating to the official bureau of the department, without the knowledge or approval of the board. They then-spread upon the judgment record the information upon which the-charges—those which were served and those which were not served—are supposed to be supported. Again the information, consists in part of undisclosed records of the department. The-charge which was served sonstituted no offense. The article in question was a valuable contribution to knowledge which the-public was entitled to. It'could not possibly have hindered the efficient working of the department; and it was an aid to those who were endeavoring to suppress incendiarism in this city. But, even if the relator should not have permitted the compilation from the records of his bureau, the explanation was complete. He did not permit such compilation, and the undisclosed information on-that head was misinformation. The fact was that the article was compiled from the published and public records of the depart* ment and from the public records of the district attorney’s office. The entire case on this head was baseless.

The third and fourth charges are still weaker. The third charge states no offense justifying a removal. On the contrary, it charges commendable zeal on the part of the fire marshal. The charge is that he asked the comptroller if money could not be set apart to pay witnesses in arson cases, and, finding that that could not be done, hé made the same suggestion in substance to the board of underwriters, which the latter adopted. Why should he not ask information of the comptroller as to whether money could be obtained from the treasury to pay witnesses in cases of arson, and why should he not permit, the board of fire underwriters to pay out money for such purposes ? In the first cause assigned he is charged with doing too little; in this “third cause” he is charged with doing too much. In neither case is there a genuine fault of commission or omission. Even as to this third' •charge there is a complete, though quite unnecessary, explanation. The relator never did what he was charged with doing. Again the undisclosed information must have been inaccurate, for the denial is supported by the affidavits of both the comptroller and the superintendent of the survey bureau of the board of fire underwriters, and is absolutely conclusive upon the record.

It is difficult to speak moderately of the fourth cause. It amounts to a charge that the fire marshal aroused a spirit of jealousy on the part of police detectives by claiming—certainly with some show of justification—the credit for securing convictions in arson cases. That, says the charge, alienated the good will of these detectives, and this renders difficult their hearty and cordial co-operation. One would suppose that this was a ground for disciplining the detectives, rather than the relator. It is difficult to understand why this apparently faithful servant of nearly ..seven years’ standing should have been removed because he is proud of his success, and because the detectives do not like his self-appreciation. He might well be pardoned for some slight self-appreciation in view of the sworn statement of the assistant district attorney, Mr. Davis, to the eEect that his duty had been both intelligently and energetically performed, and that his services were of great value to the cause of the people; also in view ■of the resolution of the board of fire underwriters, adopted some four months prior to these charges, that their thanks, and the thanks of the citizens of New York, were due to Fire Marshal Mitchell for his sagacious and energetic labor in the detection and punishment of the bands of incendiaries who have recently caused so many fires in this city.

Upon the entire record it is evident that a grave injustice has been done to the relator; that .the charges against him were mere formulae for removal; and that his explanations should have satisfied fair-minded men that he was deserving of commendation, not condemnation.

Upon both the facts and the law the action of the board should be annulled, and the relator reinstated, with $50 costs and disbursements.


author: PER CURIAM.

text:
    Erie and Central New York Railway Company, App’lt, v. Frank Welch et al., Resp’ts.

      (Supreme Court, Appellate Division, Third Department,

      Filed Feb. 27, 1896.)

    Condemnation pboceedings—Petition—Sufficiency.
    An application for the condemnation of land, made on a petition which fails to state that the petitioner intends to complete the work for which the land is said to be condemned, is properly denied on oral objections of the defendant.
    Appeal from an order denying a petition for the condemnation of lauds.
    Irving H. Palmer, for app’lt; Maynard, Gilbert & Cone (I. H. Maynard, of counsel), for resp’ts.
   PER CURIAM.

The plaintiff, at a special term of this court held iii Broome county on the 29th day of October, 1895, upon the petition and notice of motion, a copy of which is contained in the papers submitted to us, moved for the condemnation of the lands described in said petition, and for the appointment of commissioners to ascertain and fix the compensation to be made therefor. The defendants appeared, and opposed said motion. No answer was served, nor does it appear on what grounds the defendants objected to the application. The petition was defective in not containing “ a statement that it is the intention of the plaintiff in good faith to complete the work or improvement for which the property is to be condemned,” as required by subdivision 7, § 3360, 'Code Civ. Proc. The allegation so omitted was material and necessary to be stated to entitle the plaintiff to the relief demanded. In Re Metropolitan Transit Co., 111 N. Y. 588; 20 St. Rep. 516, where a like application, under chapter 140, Laws 1850, was under consideration, it was held that, “ as a condition upon which the court could be asked to intervene in its favor to enable it to acquire lands and street rights, the company was obliged to show, under oath, that it is its intention "x" *' * in good faith to construct and finish a railroad from and to the places named * “ * in its articles of association.” See, also, Met. E. Railroad Co. v. Dominick, 44 St. Rep. 872; 8 Supp. 151; Rochester Railway Co. v. Robinson, 133 N. Y. 242; 44 St. Rep. 872. The petition being thus defective, and it appearing that the defendants ■objected to the granting of the application of plaintiff for the condemnation of the premises in question and the appointment of •commissioners to ascertain and fix the compensation to be made therefor, we are unable to determine that the court below was in •error in making the order from which the appeal is taken. If there had been no appearance by defendants, the court could properly have denied the application on the insufficient petition presented. The papers do not show that the defendants waived the objections to the defective petition on which the plaintiff moved. We are also of the opinion that under the provisions of the “ condemnation law,” where the petition on which the plaintiff moves fails to comply with the provisions of section 3360 of the Code of Civil Procedure, the court may properly sustain oral objections to the granting of the application for condemnation and the appointment of commissioners. The view above taken renders it unnecessary for us to consider the other questions discussed by the-learned counsel for the respective parties.

The order should be affirmed, with costs and disbursements.


author: RUMSEY, J.

text:
    The People, Resp’t, v. William W. McLaughlin, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 13, 1896.)

    1. Cbiminal law—Chang® oe venue.
    A proceeding to change the place of trial is not a proceeding in the criminal action, but is a matter outside of such action, brought to obtain relief' which is no necessary part of the criminal action itself.
    3. Same.
    Such a proceeding is a special proceeding within the definition of seo tione 3383, 3334 of the Code.
    3. Same.
    In such case, before the court can acquire jurisdiction to act in the matter, a notice of motion of at least ten days must be served.
    4. Same. -
    After such jurisdiction is acquired in such manner, the court has the-power to entertain any motion which may be made in the special proceeding, and it is its duty to decide' any question which might be thus pre sented to it.
    6. Same.
    In such case, the court is not divested of the jurisdiction by proceeding, in any incidental matter, in a way not prescribed by the statute.
    6. Same.
    An order to show cause may be made in a special proceeding as well as in an action.
    7. Same.
    Under the provisions of the Code of Crimial Procedure, no right is given to the district attorney to move to change the place of trial of a criminal1 action. ,
    8. Same.
    Though the court has jurisdiction to hear and decide such application, when made upon the motion of the defendant, it is error to attempt to shorten the time within which the motion should be made.
    0. Same.
    Where, three days before the time set for trial of an indictment in the court of oyer and terminer, defendant prepares notice of motion for change of place of trial, fixing the seventeenth day thereafter as the day on which it shall be heard, and on this obtains an order of the justice of the supreme court staying the trial of the indictment until the time fixed in the motion for liearihg, and serves these papers on the district attorney, requiring defendant to proceed forthwith with his motion, and, on his refusal so to do, denying the motion for a change of place of trial and vacating the stay, while not void for want of jurisdiction, is erroneous in compelling defendant to proceed to a hearing of his motion at a day earlier than that fixed in his notice.

      Appeal from an order denying a motion made by defendant to •shange the place of trial in the indictment.
    Edward C. James, for app’lt; Daniel Gr. Rollins, for the people.
   RUMSEY, J.

The defendant was indicted for a felony, and Ms trial took place in the court of oyer and terminer, in the month of April, 1895. On the 11th day of May the trial was brought to an end by a disagreement of the jury. The judge presiding at the term at which the trial had just been had set down the case for another trial on the 20th day of May, nine days after the end of the first trial.' The defendant at once took steps to make a motion to change the place of trial, upon the ground that an impartial trial could not be had in the county, of Mew York The papers upon that motion, which were very voluminous, were partially finished on the 17th day of May, and on that day a notice of motion was prepared, and upon that notice of motion and the affidavits an order was procured from a justice of this court staying the trial of the criminal action until the time fixed in the notice of motion for the hearing of the application to shange the place of trial. These papers, which were regular in form, were served on the district attorney on the afternoon of Saturday, the 18th day of May. • The trial of the action in oyer and terminer had been set down for 10 o’clock on the next Mon-, day. The motion to change the place of trial was noticed to be heard at the special term to be held on the 3d day of June, which was 17 days after the date of the notice and 14 days after the time when the ease was set down for trial in oyer and terminer. On the afternoon of the day on which the motion papers were served, the district attorney, upon an affidavit made by him, procured from a justice of this court an order to show cause, returnable on Monday, May 20th, at 10:30 o’clock, why the argument of the motion which had been noticed by the defendant to be heard on the 3d of June should not then and there proceed forthwith before the special term. This order to show cause was served about 7 o’clock in the morning of Monday, May 20th, and at the time prescribed in it both parties appeared before the special term—the people to bring on the motion mentioned in the order to show cause, and the defendant simply for the purpose of objecting to the hearing of the motion, upon the ground that the court had no jurisdiction to require the defendant to make the motion at that time, and upon other grounds which need not now be considered. The court overruled the objections taken by the defendant, and required him to proceed forthwith with the, motion to change the place of trial. This he declined to do, and thereupon the court entered an order denying the defendant’s motion to change the place of trial, and vacating the stay of the trial, From that order this appeal is taken.

The first question presented is whether the court bad jurisdiction to make this order. For some years before the time when the Code of Criminal Procedure took effect, the proper proceeding to change the place of trial of an indictment for- a felony was by a motion in the oyer and terminer. Laws 1859, o. 462. That motion, being made in the court in which the inditment was pending, was a proceeding in the case, and was subject entirely to the control of the court in which the case was pending. This motion in the oyer and terminer could be made either by the people or%y the defendant. But, by the Code of Criminal Procedure, which took effect in 1882, this manner of proceeding was entirely changed. The criminal action, as the proceedings upon the indictment are called by that Code, was pending in the court of oyer and terminer. The Code provided that a motion to change-the place of trial of any criminal action must be made to the supreme court, at a special term in the district, upon notice of at. least ten days to the district attorney of the county where the indictment was pending, with a copy of the affidavits or other-papers upon which the application was founded. Or. Code, § 346. The Code further provided that, to enable the defendant to make-the application, a justice of the supreme court might, in his discretion, for good cause, shown by affidavit, make an order staying the trial of the indictment until the hearing and decision of the motion. Id. § 347. It is apparent, from these and the subsequent sections of the Code upon the subject, that, by this proceeding, the criminal action was not removed from the court of oyer and terminer, but still remained pending therein, and the court was at liberty to proceed with the trial of the action in the ordinary course, unless that trial was stayed as provided by the section quoted above. The proceeding, therefore, to change the place of trial was not a proceeding in the criminal action, but it was a matter outside of that action, brought to obtain relief which was no necessary part of the criminal action itself. It resembled more an application for a writ of prohibition or mandamus, directed to an inferior court, to direct the course of proceeding-in that court in an action which was pending in it, but which did not. draw to itself the particular action with regard to which the writ was asked. The proceeding was one in the supreme court. It was a proceeding for the enforcement of what was claimed to be a right, and it was not a civil action, because a civil action is an ordinary proceeding instituted by a summons. Belknap v. Waters, 11 N. Y. 477, 478. This one was, within the definition of the Code of Civil Procedure, a “ special proceeding.” Code Civ. Proc. §§ 3333, 3234. It could only be commenced by the service of the-affidavits and notice of motion. When those papers were served upon the people, they were brought into court, and the proceeding had an inception, and from that time the supreme court han jurisdiction of the proceeding, because the service of the notice of motion lay at its foundation, and was the mode prescribed by the statute for bringing the people into court upon the application for the relief sought. In no other way could jurisdiction be acquired. There was no power in the court, at that time, to assume jurisdiction upon any shorter notice, any more than there would have been to take jurisdiction of a civil action upon summons returnable in less than 20 days. But in this proceeding, vyhen the papers were served upon the people, they were brought into court, and the court gained jurisdiction, as it would have jurisdiction of the civil action upon the service! of a summons. As-it had jurisdiction, it had the power to hear and determine the subject-matter in controversy between the parties, and not only to decide the principal question, the determination of which was the immediate object of the proceeding, but every other incidental question which might arise in the course of the proceedings, and which could be brought before the court for solution. People v. Sturtevant, 9 N. Y. 263, 266.

When, therefore, this notice of motion and affidavit had been served, the court was in possession of the special proceeding. It is a court of general jurisdiction, and having, by the service of these papers, acquired jurisdiction to act in the matter, it had the power to decide every question which might be brought before it In the proper form; and, if it decided erroneously, its conclusion, while it might be reversed for error, was not void for want of jurisdiction. It is quite true that, before it could acquire jurisdiction to act in the matter, a notice of motion of at leaet ten days must be served, because that is the preliminary step which the law requires should be taken to give the court the right to» act. But the power to act in the matter came into existence upon, the service of the papers. It was not necessary for the court, before any act could be done, to wait until the expiration of the time mentioned in the notice of motion for the hearing to take place, to enable it to take cognizance of the proceedings; but it could, in a proper case, lu.ar and decide other matters which might be presented to it before the return day of the order to show cause. For instance, it would undoubtedly be within the power of the court to postpone the hearing, although the application for that purpose might be made before the time fixed in the notice of motion for bringing on the matter. It might grant to the moving party the right to serve further papers. Any incidental relief, to-which either party might be entitled, in the course of the proceedings, before the time for hearing thereof, might be granted by the court, by virtue of the general jurisdiction which it had, and which it acquired in this proceeding because of the fact that the defendant had brought the people into court in the way prescribed by law. Any act done in the proceeding by the court, after the service of the notice of motion, was done by virtue of its power as a court of general jurisdiction. By virtue of that power it could take cognizance of any motion made in the matter, for such motion might be made as well in a special proceeding as in an action. Code Civ. Proc. §§ 767, 768, Such a motion might be brought on either by an order to show cause or by a notice of motion, as in any other action or special proceeding. To be sure, the special proceeding itself could not be originated by an order to show cause, because the court could only get jurisdiction of it in the manner prescribed by the statute, and that was by tlje service of a notice of motion returnable in- at least ten days. But it must not be forgotten that not only did this notice of motion lie at the foundation of the jurisdiction, but, when properly served, the jurisdiction, attached, and it attached in a court of general ■jurisdiction with regard to whose acts, from that time on, every presumption is that they were within its powers. After that jurisdiction had been acquired, the court had the power to entertain any motion which might be made in the special proceeding, and not only did it have the power, but it was its duty, to decide any question which might thus be presented to it. Its right tb decide any such question did not depend upon the correctness of the decision, but having the power to make the decision, its action was binding until the decision was reversed.

So, therefore, when there was presented to the special term, on the morning of the 20th of May, an order to show cause, in this matter, why the motion should not be heard at an earlier day than that for which it had been noticed, this condition of things existed. A special proceeding, properly commenced, in which all the parties were before the court, was pending, and the court had power, not only to grant or deny the relief ultimately sought, but had the power, besides, to "act upon every other question that might be presented to it in the orderly course of practice, and anything which it did in that regard must be attributed to the exercise of the general jurisdiction which it had acquired. Having that general jurisdiction, and having possession of the cause under it, it was not divested of the jurisdiction by proceeding, in and incidental matter, in a way not prescribed by the statute. For instance, the statute prescribes that no judgment for default shall be taken until twenty days after service of summons, and undoubtedly the court should not enter judgment by default on the nineteenth day arter the summons was received. But the court acquires jurisdiction of the action by the fact of the summons, and if, by mistake or otherwise, it should direct a judgment to be entered on the nineteenth day, instead of the twenty-first, after the service, such a judgment would not be void, but would be simply erroneous, and would either be vacated or reversed in a proceeding taken for that purpose. So the statute prescribed that the trial of an action can be brought on only by 14 or 16 days’ notice, but if the plaintiff, having put his case upon the calendar without serving notice of the trial, proceeds to bring the case to trial, and the court assumes to hear it, even against the protest of the defendant, a judgment entered upon that hearing would not'be void but it would be a valid judgment until it was reversed or set aside. The principle is that where, by the service of due process, the court acquired jurisdiction to act, its action thereafter in doing anything which the law says may be done in the proceeding, although it may be mistaken and erroneous, is not void, but reversible only.

This principle has also been recognized in several cases reported in the courts bf this state,—notably in Von Rhade v. Von Rhade, 2 Thomp. & C. 491, decided in the First department. That was an action for divorce, in which, as is well known, the court has only such jurisdiction as is given to it by statute. The summons was served by publication, and, instead of waiting until twenty days after the service of the summons, the court on the nineteenth day took the defendant’s default, and ordered judgment tobe entered against him. A motion was made to set aside the jugdment, and it was strongly urged that the action of the court in directing judgment to be entered before the defendant was in default rendered the judgment void. But this proposition was not acceded to. It was held that, the court having acquired jurisdiction by the service of the summons, any departure from the statutory provisions regulating the proceedings before judgment was only an ¡irregularity, which did not affect the validity of the judgment. The court cited the case of D’Ivernois v. Leavitt, 8 Abb. Prac. 59, which was also decided by the general term of this department. The rule laid down in that case was that the want of jurisdiction •can never be alleged as to the interlocutory proceedings in an action where the court has obtained jurisdiction originally, and renders the proper judgment in the case. The rule is also recognized in Schaettler v. Gardiner, 47 N.Y. 404. It must be borne in mind that the service of the original notice of motion in this proceeding had the effect, not only to fix the time when the moving party .•sought to bring the matter to a hearing, but it also had the -effect to give to the court the power, from the time of its service to do any act which a court general of jurisdiction might do in .the course of the particular proceeding. The jurisdiction of the -court, which had been acquired by the service of the notice of motion, could not be divested, because of the fact that the court, ;'iu attempting to do some act in the course of the proceeding, did mot observe that regularity which the statute required. An order to show cause may be made in a special proceeding as well as ¡in an action, as we have seen. The judge, therefore, had jurisdiction, undoubtedly, to make the order to show cause which was returnable on the 20th of May. When that order was made, it was not only within the power, but it was the duty, of the special -term before which it was returnable to pass upon the question presented by it. That question was whether or not the motion noticed for June 3d should be heard at an earlier day. As it was the duty of the court to decide that question, we have the case of a court of general jurisdiction presented with a question which it was his duty to decide, and deciding that question, as we think, erroneously ; but its decision was not void, however erroneous it must be said to be.

Although we have reached the conclusion that the order made on the 20th of May, by which this motion was denied, was not void, still it was undoubtedly erroneous. There can be no doubt .that, under the provisions of the Code of Criminal Procedure above cited, no right is given to the district attorney to move to change the place of trial of a criminal action. If the people have such right under any circumstances, whicti we do not here decide, that must be found elsewhere than within these sections of the Oode of Criminal Procedure. The court had jurisdiction, undoubtedly, to hear, and decide this application, made upon the motion of the defendant; but it was error to attempt to shorten the time within which the motion should be made. The legislature have prescribed, in this, as in many other matter’s, the time within which proceedings at law shall be taken. For instance, they have directed that at least eight days’ notice of an ordinary-motion must be given, unless the time is shortened by an order to show cause. They have required at least fourteen or sixteen days’ notice of trial, and ■ that costs should be taxed upon two days’ notice. All these requirements are binding upon the courts. Adherence to them is not absolutely necessary in every case, to the existence of jurisdiction, because, after the court has acquired jurisdiction, it is not lost by an irregular proceeding; that is, by one which the court had power to take, but is only made irregular because it was taken too soon. But yet such adherence'is necessary to correct action in the matters involved. When the legislature has directed the time within which an act must be done, it is improper to shorten that time, except as a condition of granting a favor. Especially is this strict adherence to the ence to the rules of procedure necessary in actions involving the administration of criminal law. A speedy determination of criminal actions is undoubtedly of great importance. It is undoubtedly o£ great benefit to the community that punishment of crime should not only be certain, but quick. But it is of far more importance, in the administration of the criminal law, that the rules for grave and orderly procedure, which have been laid down by the statutef should be preserved; for it is the observance of these rules which makes the distinction between mpb law and the-dignified and decent procedure of the courts. The penalty for crime is inflicted quite as much for example as for punishment, and it can only be made to serve as an example when it is understood that it is attained by a strict observance of those forms which years of experience have shown are necessary to the protection of the rights of those people-against whom the criminal law is set in motion. So far as the punishment of crime is to operate as an example, it is open to grave doubts whether it does-not entirely lose its force if a conviction is obtained at the expense of any of those safeguards with which the lawmakers have-seen fit to protect those who are brought under the ban of criminal law. Such conviction has its greatest weight when it has been procured only by orderly proceeding, with careful observance of the rights of the accused person.

In the case at bar, we do not think- such rights were protected as they ought to have been upon this motion. The facts presented by the voluminous papers upon the application to change the place of trial called for serious and careful consideration. Many of them undoubtedly were of great force, and they might well have led the defendant to believe that it was doubtful whether an impartial jury could be ^procured to try his case within the-county of New York. Without attempting, here, to express any opinion as to the force of these facts, or whether the plaintiff was entitled to any relief upon them, it is sufficient to say that they were such as called upon the court to whom they wferé presented to carefully weigh and consider them, even if it did not call upon the people to answer or explain them. It is apparent, from the papers, that no such consideration was had. The court undertook to compel the defendant to bring on this motion at a time sooner than was fixed in the notice, without any fact having been made to appear which would warrant the exercise of that power, even 'if it existed. The only facts stated in the affidavit of the district attorney were that a large number of jurors had been summoned to try the case, the hearing of which was set down for that day. ’Those facts might have been important as giving a reason why the stay should have been vacated as improvidently granted, or why the court, as a condition of retaining the stay, should not compel the defendant to make his motion earlier than the day it was noticed.' But beyond that the court had no power to go in -.the premises. It was for the defendant to say when the motion was to be made, and if the day which he fixed was so far off that a delay of the trial to that time would have operated as an obstruction to the administration of justice, the court might have vacated the stay, upon a proper motion for that purpose, or might have imposed an earlier hearing of the motion as a condition of allowing the stay to continue. But it could not properly fix any other time for the hearing of the motion, and for the reason that it attempted to do that,and, upon the defendant’s refusal to proceed, denied the motion peremptorily, its action was erroneous, and cannot stand. The order denying the motion to change the place of trial should, therefore, be reversed.

The order, in addition to denying the motion to change the place of trial, vacates the stay which had been granted of the trial of the action in the court of oyer and terminer." This would have been the effect of the order, even though nothing had been said about the stay ; for, when the proceeding had been brought to an end by the final order of the court, the stay granted pending the proceeding necessarily fell of itself. But so much of the order as vacates the stay must also be reversed with the other order. The effect of the final order which is here reviewed was to put an end to the special proceeding to change the place of trial, and to leave the matter in precisely the same situation as though no such proceeding had been begun. When, therefore, the case was moved in the court of oyer and terminer, it was the duty of the court to proceed in the criminal action, unless, for some good reason shown there, the trial should be postponed. The only objection made there was that the order here reviewed was void, which we have found was not the case. No claim was made in that court that the defendant was not ready for trial, except for the reason that his counsel was absent, but that was provided for by the court. The action of the court, therefore, in proceeding with the trial, was proper, if, upon the trial, an impartial jury was impaneled, as we have found, upon the appeal from the judgment, to have been the case. No injustice was done to the defendant by the action of the court in the premises, because he had, as a result of all the proceedings, a trial before an impartial jury, and therefore he had no reason to complain. We do not pass, of course, upon the merits of the defendant's application to change the place of trial. This decision is put solely upon the ground that the action of the special term in compelling the defendant to proceed to a hearing of this motion at a date earlier than that fixed in his notice was erroneous.

The order should be reversed, but under the circumstances, without costs.

All concur.