text:
    John J. P. Read, App’lt, v. Charles N. Brayton, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Stay-Action against clerk of court.
    An action against the clerk of the court to recover property delivered to him by express order of the court cannot be maintained without permission from the court, and where an action has been so commenced the court may stay the proceedings or punish the plaintiff for contempt, or both.
    Appeal from an order of the Erie special term staying the prosecution of this action.

      O. O. Cottle, for app’lt; John Cunneen, for resp’t.
   Haight, J.

It appears that the plaintiff deposited with the Marine Bank a sum of money for which it issued to him two certificates of deposit, and that he subsequently brought action against the bank to recover the amount thereof. Upon the trial one Rockwell was summoned by a subpoena duces tecum, to produce the certificates. He appeared, and upon order of the court produced them, but claimed that they belonged to the estate of Elizabeth A. S. Rockwell, deceased, and that he held them as her personal representative. The court thereupon made an order that they be delivered to the clerk of the court, and that he retain them in his possession subject to its further order. Charles A. Orr was at that time the county clerk, and as such the clerk of the court. He took possession of the certificates pursuant to the order, and upon the termination of his term of office turned them over to his successor, the defendant in this action. Upon the trial of the action against the bank the court ordered judgment in favor of the plaintiff, which judgment has been reversed by the court of appeals, and sent back for a new trial. Read v. Marine Bank, 136 N. Y., 454 ; 49 St. Rep., 675.

The plaintiff then moved at the special term for an order directing the clerk to deliver the certificates to him, which order was denied, but without prejudice to renewal thereof upon notice to Rockwell or the personal representatives of Elizabeth A. S. Rockwell, deceased. Thereupon this action was brought, and papers in replevin placed in the hands of the sheriff, who demanded from the defendant the certificates in question.

We do not understand that this action can be maintained. The defendant is the clerk of the court, and the custodian of the certificates, made such by the express order of the court. He is, therefore, an officer of the court, represents it, and his possession is that of the court.

In the case of Noe v. Gibson, 7 Paige Ch., 513, the chancellor says : “ It is well settled that after a receiver is appointed and has taken the rightful possession of the property, it is a contempt of court for a third person to attempt to deprive him of that possession by force or even by a suit or other proceeding against him without the permission of the court by whom the receiver was appointed. * * * The same principles are applicable to every other interference to the possession of a receiver, sequestrator, committee or custodee who holds the property as the officer of this court, as his possession is in law the possession of the court itself.” See also Albany City Bank v. Schermerhorn, 10 Paige Ch., 263; Walling v. Miller, 108 N. Y., 173-178; 13 St. Rep., 93 ; Higgins v. Wright, 43 Barb., 461-468.

It will thus be observed that the defendant, as the custodian of the certificates, is placed under the same protection as a receiver.

When an action has been commenced against a receiver without leave,' the court may stay the proceedings or punish the plaintiff for contempt, or both. James v. James Cement Co., 8 St. Rep., 490; De Groot v. Jay, 30 Barb., 483 ; Taylor v. Baldwin, 14 Abb. Pr., 166.

It may be said that the court improperly took the certificates of deposit from the possession of Rockwell and impounded them with the clerk, but Rockwell is not here complaining. The order still remains in force and unreversed. If improvidently granted it may be corrected upon motion.

The order appealed from contains a provision to. the effect that the stay should continue until the personal representatives of Mr. and Mrs. Rockwell are brought in as parties to the action, and that then the clerk be permitted to turn the certificates over to the county treasurer. We see no reason for changing the custodian of the certificates or in continuing this action until other parties are brought in. The defendant is entitled to have the prosecution of it absolutely restrained.

The order appealed from should be modified by striking out all after the word “brought ” in the second line of the 55th folio of the printed case, and as so modified affirmed, with ten dollars costs and disbursements.

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


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    The Rochester Distilling Co., Resp’t, v. Mary M. Devendorf, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Election of remedies—Fraud.
    The prosecution of an action for the purchase price of goods, the sale of which was induced by false representations, is not an election of remedies unless such action was prosecuted to judgment with knowledge of the fraud. The rule does not interfere with the right of a party to rescind a contract for fraud where the election so to rescind is exercised immediately upon the discovery thereof.
    Appeal from a judgment entered upon a verdict at the Monroe circuit

      Walter Welch, for app’lt; George D. Reed, for resp’t.
   Haight, J.

This action is in replevin to recover the possession of personal property. The defense is that the goods replevined were sold by the plaintiff to Stewart L. Devendorf, the husband of the defendant; that subsequently the plaintiff brought an action against him in the supreme court and recovered judgment for the purchase price thereof; that the defendant is the owner of the goods, and that she purchased them of her husband in good faith for a valuable consideration. The action was prosecuted upon the theory that Devendorf at the time he purchased the goods falsely represented to the plaintiff that he was solvent and able to pay therefor ; that as soon as it was discovered that his representations were false the plaintiffs elected to disaffirm the sale and to puisne the property, and the evidence amply sustains the verdict in •this regard. It is contended, however, that the plaintiff cannot disaffirm after judgment; that by bringing the action and proceeding therein to judgment it elected its remedy, and the judgment becomes a bar to this action. The rule doubtless is that when a matter in controversy between parties has been submitted to a competent judicial tribunal, its decision thereon is final between the parties until it 1ms been reversed, set aside or vacated; and the rule of res adjudicata applies not only to the judgments of courts but to all judicial determinations, whether made by courts in ordinary actions, or in summary or special proceedings, or by judicial ■officers in matters properly submitted for their determination. It applies not only to judgments rendered after a litigation of the matter in controversy, but to judgments rendered upon default or confession. Brown v. Mayor, 66 N. Y., 385-390.

But this rule does not interfere with the right of a party to rescind a contract for fraud where the election so- to rescind is exercised immediately upon the discovery thereof. Strong v. Strong, 102 N. Y., 69.

The plaintiff did bring an action against .Stewart L. Devendorf upon the sale and recovered a judgment for the value of the goods sold. It is claimed, however, that this was done without knowledge of the fraud. The plaintiff did have notice of the transfer of the property by Devendorf to his wife before bringing that action, and the trial court submitted to the jury the question as to whether it liad knowledge of the insolvency of Devendorf at the time the purchase was made. The jury found in favor of the plaintiff on this question. The plaintiff claims that its first information was derived through an examination of Devendorf in supplementary proceedings, and that immediately thereafter it elected to disaffirm the sale, and demanded of the defendant the return of the goods, and upon her refusal to so do this action was brought; subsequently the judgment was discharged and the proceedings pending supplementary to the execution were dismissed.

The rule as stated by us in Terry v. Munger, 49 Hun, 560-563; 18 St. Rep., 506, is that, where there exists an election between inconsistent remedies the party is confined to the remedy which he first prefers and adopts after knowledge of all of the facts. Applying this rule to the case under consideration, the prosecution of the action against Devetadorf was not an election of remedies unless such action was prosecuted to judgment with knowledge of the fraud. This precise question appears to have been considered in the case of Kraus v. Thompson, 30 Minn., 64, and the conclusion reached in that case seems to be in accordance with the spirit of our own cases. Terry v. Munger, 121 N. Y., 161; 30 St. Rep., 746; Crossman v. Universal Rubber Co., 127 N. Y., 34; 37 St. Rep., 230; Morris v. Rexford, 18 N. Y., 552; Moller v. Tuska, 87 id., 166; Powers v. Benedict, 88 id., 605; Lloyd v. Brewster, 4 Paige Ch., 537._

The satisfaction of the judgment doubtless raises a presumption of the payment, but that presumption is removed by the testimony of Devendorf, in which he states that the plaintiff’s claim has not been paid.

The defendant purchased the goods from her husband, but paid-nothing therefor. The purchase price was credited upon an antecedent indebtedness. She is not, therefore, protected. Stevens v. Brennan, 79 N. Y., 254; Taft v. Chapman, 50 id., 445-448; Weaver v. Barden, 49 id., 286-294.

The judgment and order should be affirmed.

Dwight, P. J., and Lewis, J., concur; Bradley, J., not-sitting.


author: Dwight, P. J.

text:
    The Buffalo, Bellevue & Lancaster Railroad Co., Resp’t, v. The New York, Lake Erie & Western Railroad Co. and The Buffalo, New York & Erie Railroad Co., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

      1. Railroad—Crossing—Appointment of commissioners.
    Objections to the use of an electric trolley system “in the places,and intlie manner proposed by the petitioner ” for a crossing as unnecessarily dangerous; a public nuisance; a conversion of a highway into an entirely new use, etc., are not available to defeat the appointment of commissioners to determine the points and manner of crossing. The commissioners are the tribunal to determine such questions, and their determination cannot be anticipated by objections.
    2. Same—Street railroads.
    Section 12 of the railroad law, chap. 565, Laws 1890, applies to street surface railroads.
    Appeal by the defendants from an order, or interlocutory judgment, of the Erie special term, confirming the report of a-referee and appointing commissioners to determine-the point and manner of the intersection of each of the defendants’ roads by the road of the plaintiff, and the compensation to be made therefor.

      E. C. Sprague, for app’lts; Porter Norton, for resp’t.
   Dwight, P. J.

The proceeding was under § 12 of “ the railroad law,” being chapter 565 of the Laws of 1890, as amended by chapter 676 of the Laws of 1892. Issue was joined in the proceeding by an answer of the defendants to the plaintiff’s petition, and the issues so made were referred to a referee “ to hear and determine,” but by stipulation of the attorneys, approved by the court, his report wa's treated as that of a referee to take testimony and report the same with his opinion thereon, and his findings and conclusions of law and fact were taken as the opinion and recommendation of a referee so appointed. Accordingly the case was moved at special term for a confirmation of the report, which was in favor of the plaintiff, and for the appointment of' commissioners. The motion to that effect was granted, and from the order or interlocutory judgment granted thereupon this appeal was taken.

We are unable to see that there was any good ground for the-appeal. The grounds assigned by the appellants are two: (1) That the provisions of the railroad law which authorize the crossing or intersection of one railroad by another and prescribe the proceedings by which such right may be enforced do not apply to the case of street surface railroads of whatever motive power * and (2) that the use of the electric trolley system, “in the places and in the manner proposed by the petitioner ” fpr its crossings, would be “unnecessarily dangerous,” “a public nuisance,” “a conversion of a highway or street into an entirely new use ” and “ an invasion upon and disturbance of the rights of the defendants.”

The latter objection was raised by an averment to the effect, above stated in the answer of the defendants and by their offer, on the hearing before the referee, to prove the facts so particularly averred. The evidence so offered was excluded on the objection of the plaintiff, which was sustained, as appears by the-referee’s memorandum opinion, on the ground that the question of the place and manner of the crossing was not within the matters referred to him, nor to be passed upon by the court on the-application for the appointment of commissioners, but to be determined by the commissioners after they should be appointed. And such is, distinctly, the provision of the statute in question, viz.: that “ if the two corporations cannot agree upon * * *” the line or lines, grade or grades, points or manner of such intersections * * * the same shall be ascertained and determined by commissioners * * * to be appointed by the court, etc.” Laws of 1892, supra, chap. 676, art. 1, § 12.

The commissioners, then, are the tribunal by which all questions of “ the places and the manner ” of the crossings to be made by the plaintiff’s road are to be determined, and that determination must necessarily be made in view, among other things, of the motive power employed and the mode of its application. If the commissioners do their duty no nuisance will be created at the crossings fixed upon by them; but in any case it is clear that objections to their determination cannot anticipate the determination itself.

The other ground of objection to the proceeding is the one principally relied upon, but is, we think, untenable. It is, as we have seen, to the effect that the provisions of § 12 of article 1 of the railroad law, above cited, have no application to street surface railroads. An examination of that section shows that it makes no exception of street surface railroads from its operation, but, on the contrary, by its terms includes “ every railroad corporation.” This must, of course, be construed to mean every railroad corporation whose organization, location and powers are provided for in the same article of the statute in which this section occurs;'and that this category includes street surface railroads there can be no doubt. The article embraces the subjects of organization, general powers and location. Its second section, providing for the incorporation of railroad.companies, prescribes the contents of the certificate to be executed, acknowledged and filed, and by its eleventh subdivision specifically states what the certificate shall contain if the railroad to be incorporated is a street surface railroad. Further, § 4 confers “ additional powers ” upon every corporation thus formed, and among them, by subdivision 7, the power to convey persons and property on its railroad “ by the power and force of steam,,or of animals or by any mechanical power," except where the power is specially prescribed, etc. Again, § 6 of the same article, in providing for the location of the route, of railroads to be constructed under the act, expressly excepts from its requirements street surface railroad corporations ; and, finally, § 12, which contains the particular provisions whose application is here in question, in terms extends its provisions to “ every railroad corporation whose road is or shall be intersected by any new railroad.” We think the conclusion is unavoidable that street surface railroads are included in all the provisions of article 1 of the railroad law, except those from which they are-expressly excluded; and, consequently, that the provisions of § 12 are applicable to the -case of the plaintiff in this proceeding.

The order and interlocutory judgment appealed from should be .affirmed.

Order and interlocutory judgment appealed from affirmed, with ■costs.

Lewis and Haight, JJ., concur.


text:
    In the Matter of the Application of The City of Buffalo to take and appropriate lands for park purposes in the Fifth and Eleventh wards of the city of Buffalo and the town of West Seneca.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Eminent domain—Railroad.
    Lands once taken for and devoted to a public use pursuant to law cannot be again taken under the right of eminent domain and dpvoted to another public use without special authority from the legislature.
    '2. Same—Laws 1892, chap. 466.
    As under chap. 466, Laws 1892, the city will acquire the title to the land condemned and the right to take possession of the same, and the act does not provide for the taking of the lands of any railroad which is in actual use for the purposes of its incorporation, the land of a railroad within the limits named in the act cannot be condemned thereunder.
    Appeal by the Buffalo, Bochester & Pittsburg Bailroad Company from an order of the Erie special term, overruling objections and appointing commissioners to appraise.

      John S. Rockwell, for app’lt; W. F. Mackey, for the city of Buffalo, resp’t.
   Haight, J.

Proceedings were instituted on behalf of the city to acquire lands for park purposes pursuant to chap. 466 of the Laws of 1892. The lands so proposed to be taken include a portion of the appellant’s lands occupied by its main tracks in the town of West Seneca.

Upon the hearing before the special term, the appellant appeared by its attorney and objected to the appointment of commissioners to appraise its lands upon the grounds:

“1. Ho authority is given by the act under which this proceeding is taken to take the lands of the Buffalo, Bochester & Pittsburg Bail way Company, or of any railroad company;
2. Ho authority is given by said act to acquire the right •to carry the approaches of parks therein mentioned across the lands of said railroad company or to acquire an easement therein;
“ 3. That the land of said company cannot be condemned or taken by the city of Buffalo for park purposes;
“ 4. That the right or easement across the railroad of said company, with the park or approaches, can only be given by special legislative authority, -which has not been given ;
“ 5. The said proposed parkway or approach is not a highway in the town of West Seneca, and has not been laid out as such, and that the said city of Buffalo cannot carry said parkway across said railway under the act relating to highways.”

The court overruled the objections so made and appointed commissioners'to appraise the lands so proposed to be .taken.

The statute under which the proceedings were taken provides-that upon the confirmation of the report of the commissioners and the payment of the money as provided for in the order “the said lands shall vest forever in the city of Buffalo for the uses- and purposes in this act mentioned, and the said park commissioners shall be entitled to enter upon, take possession of and forever use the said lands as an addition to and part of the public; parks, approaches thereto, and streets connecting the same, which are now under their jurisdiction.”

Another provision of the same statute is, that the lands, when so taken, “ shall be under the control and management of said park commissioners.”

It thus appears that under the provisions of the act the city would‘acquire the title to the land with the right to take possession of and use the same through its park commissioners, and that the same shall be under their management and control. They would thus have power to eject the appellant and prevent it from running or operating its railroad over the lands in question.

The provisions of the act do not provide for the taking of the lands of the appellant or that of any other railroad company which is in actual use for the purposes of its incorporation, and it is well settled that lands once taken for and devoted to a public use pursuant to law cannot be again taken under the right of eminent domain and. devoted to another public use without special authority from the legislature. Matter of the Application of the City of Buffalo for the Appointment of Commissioners to Appraise Certain Lands, 68 N. Y., 167; Prospect Park & Coney Island R. R. Co. v. Williamson, 91 id., 552; Matter of the Application of the New York Central & Hudson River Railroad Company to Acquire Lands, etc., 77 id., 248; Matter of the Petition of the New York, Lackawanna & Western Railroad Company to Acquire Lands, etc., 99 id., 12 ; Mills on Eminent Domain, chap. 5. §§ 44-46.

Upon the argument the counsel for the city announced that there was no intention on the part of the city to interfere with the; appellant’s right to operate its railroad over the lands in question. But the taking from the railroad of its title to the lands puts it in the power of the city or its park commissioners to interfere with its use, and the intention of the officers of the city may be changed.

There is another statute which provides for the extending of highways over the right of way of railroad companies, but in it there is no provision for the condemning and taking from the railroad company the fee to the land.

The order appealed from, in so far as it appoints commissioners to appraise the lands of the appellant, should be reversed, with ten dollars costs and disbursements, and the motion to appoint commissioners of appraisal as to appellant’s land's should be denied..

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


text:
    The Buffalo, Bellevue & Lancaster Railroad Co., Resp’t, v. The New York, Lake Erie & Western Railroad Co. and The Buffalo, New York & Erie Railroad Co., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Eailroad—Crossings—Constitutional law.
    Chapter S39, Laws 1893, providing that the court shall upon application direct that a street railroad be permitted to intersect and cross the track of another railroad pending the determination by commissioners of the points and manner of crossing, on giving bond to conform to the requirements imposed by the commissioners as to such points and manner of crossing and the compensation to be made, is not unconstitutional.
    Appeal from, an order of the Erie special term denying defendant’s motion to set aside an order of the Erie special term.

      E. C. Sprague, for app’lts; Porter Norton and Adelbert Moot, for resp’t.
   Haight, J.

On the 6th of April, 1893, a petition was presented to the Erie special term on behalf of the respondent setting forth that it is a street surface railroad corporation duly organized under and by virtue of chapter 565, of the Laws of 1890, and amendments thereto; that it had proceeded to lay out, designate and adopt a route for its railroad between the termini specified in its articles of incorporation, and had' obtained the consent of the local authorities and property owners therefor required by statute and had proceeded to construct its railroad; that a portion of the route was along and in the Union road, a highway in the town of Cheektowaga, and that such route intersects and crosses the tracks and road bed of the appellants upon the surface ; that the town of Cheektowaga has less than 500,000 inhabitants, and that the respondent has been unable to agree with the appellants as to the line or lines, grade or grades, points or manner of such intersection or crossing and upon the compensation to be made therefor; that an application had been made to the court to appoint commissioners to determine the same and that the court had by an order duly appointed such commissioners. The petition concluded with a prayer for an order permitting the respondent to lay its tracks across and to intersect on the surface of the Union road the tracks and road bed of the appellants pursuant to the provisions of chapter 239 of the Laws of 1893. Accompanying such petition was a bond executed by the respondent, with sureties, conditioned that if the respondent company shall fully and faithfully perform and carry out any and all conditions and requirements which may or shall be imposed by the commissioners and be confirmed by the court in determining the line or lines, grade or grades, points or manner of the crossing and intersection of the tracks and roadbed of the appellant companies by the respondent company, and also in determining the amount of compensation to be paid therefor, and shall further conform the crossing and intersection of the' tracks and roadbed of the appellant companies by the respondent company to the requirement made by the commissioners and confirmed by the court, then, this obligation shall be void and of no effect, otherwise to remain in force and effect. Thereupon, on the motion of the attorneys for the respondent, the bond was approved and the order prayed for granted. Thereafter, and on May 3,. 1893, the appellants, upon notice, moved for an order vacating the former order, which motion was denied. From the order denying such motion this appeal was taken.

Chapter 239 of the Laws of 1893 is entitled “ An act in relation to the intersection and crossing of the tracks and road-beds-of certain railroads laid in, across or upon the highways, streets, avenues or roads of cities, towns’ and villages of the state.” The first section of the act is as follows : “ Whenever the railroad or route of any street surface railroad corporation shall intersect, and cross the tracks and road-bed of any railroad operated by locomotive, steam or other power, which are laid in, across or upon the surface of any street, avenue, road or highway in any city, town or village of the state having less than five hundred thousand inhabitants, and such street surface railroad corporation having been unable to agree 'with the corporation owning the-tracks and roadbed so intersected or to be intersected and crossed, as to the line or lines, grade or grades, points or manner of such intersection and crossing, or upon the compensation to be made therefor, shall have applied to the court by petition to appoint commissioners to determine the same, the court shall, upon application made by such street surface railroad corporation at or after the time of the appointment of such commissioners, or if an answer to the petition of such street surface railroad ' corporation has been interposed, at any time thereafter, direct that such street surface railroad corporation be permitted to lay its tracks, across and to intersect upon the surface of the street, avenue, road or highway the tracks and road-bed of such railroad operated by locomotive, steam or other power; provided such street surface railroad corporation shall at the time of obtaining such order-make and file with the clerk of said court its bond or undertaking in writing, in an amount and with surety or sureties to be approved by the court, conditioned for the full and faithful performance by such street surface railroad corporation of any and. all conditions and requirements which may be imposed by said commissioners and be affirmed by the court in determining the-line or lines, grade or grades, points or manner of such intersection and crossing, and as to the amount of compensation to be paid therefor, and also conditioned to conform such crossing and intersection made by virtue of such order of the court to the requirements made - by said commissioners as affirmed by the court. ” .

It is claimed that this act is in contravention of the constitution of the state, which provides that “ Private property shall not be taken for public use without just compensation.”

Upon reference to the act it will be observed that the proceedings authorized by it are connected with and dependent upon the proceedings authorized by the general railroad act in reference to the determination of the line or lines, grade or grades, point or manner of intersections and crossings of other railroads, and of the amount of compensation to be paid therefor. Proceedings under the act can only be resorted to where the parties have been unable to agree and where proceedings have been taken to procure the appointment of commissioners, and not then until after the commissioners have been appointed or an answer has been interposed.

The crossing can be allowed only upon the giving of a bond approved by the court, conditioned for the full and faithful performance of all of the requirements of the commissioners, etc. It is apparent that the occupation provided for is temporary and only continues pending the determination of the commissioners and the confirmation of their report by the court. The proceedings instituted are not for the purpose of condemning or divesting the appellants of any title to the lands occupied on their roadbed or of their rights to use the same, nor is it to acquire any exclusive use of the lands for the respondent. It is merely to fix the line or lines, grade or grades, points or manner of crossing and to determine the compensation which shall be paid therefor. Matter of Lockport & Buffalo R. R. Co., 77 N. Y., 557.

The general railroad act provides that railroad corporations may “ take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railroad, and to acquire by condemnation sucl¿ real estate and property as may be necessary for such construction, maintenance and accommodation in the manner provided by law, but the real property acquired by condemnation shall be held and used only for the purposes of the corporation during the continuance of the corporate existence.” The statute further provides that it may “cross, intersect, join or unite its railroad with any other railroad before constructed at any point on its route and upon the ground of such other railroad corporations with the necessary turnouts, sidings, switches and other conveniences in furtherance of the objects of its connections.” And further, “Every railroad corporation whose road is or shall be intersected by any new railroad shall unite with the corporation owning such new railroad in forming the necessary intersections and connections and grant the requisite facilities therefor. If the two corporations cannot agree upon the amount of compensation to be made therefor or upon the line or lines, grade or grades, points or manner of such intersection and connections, the same shall be ascertained and determined by commissioners, one of whom must be a practical civil engineer and surveyor, to be appointed by the court as provided in the condemnation law. Such commissioners may determine whether the crossing or crossings of any railroad before constructed shall be beneath, at or above the existing grade of such railroad and upon the route designated upon the map of the corporation seeking the crossing, or otherwise.”

It will thus be observed that one railroad has the right to cross another railroad, and that such right is given by the statute; that every railroad company, in acquiring land for the right of way, acquires the same subject to this right. A railroad traversing the state might completely cut off and prevent intercourse ■of one part of the state with the other, were it not for the reservation of the right of crossing. This reservation extends to highways of every nature and character. In this regard railroad corporations acquire a qualified title in their real property different from that of an individual.

Commissioners of highways may lay out public roads across the railroad tracks and require the railroad company to construct the same, and this without compensation. Laws of 1853, •chapter 62.

In the case of the Albany Northern Railroad Co. v. Brownell, 24 N. Y., 345-349, Denio, J., in considering the question of the constitutionality of the act permitting highways to be laid across railroad tracks without compensation, says: “But the statute declares that the highway may be laid across the track without compensation to the corporation owning the railroad. This, it is ■argued, is repugnant to the constitution as the taking of private property for the use of the public without recompensing the ■owner. Upon this my opinion is, that the railroad companies, under the general act, do not acquire the same unqualified title and right ■of disposition of real estate taken for the road and paid for according to the act which individuals have in their lands. The statute declares the effect of the proceedings which it authorizes to be, that the company 1 shall be entitled to enter upon, take possession of, and use the said land for the purposes of its ‘incorporation during the continuance of its corporate existence ; ’ and it further declares that the land which it thus appropriates shall be deemed to be acquired for public use. The title to the land being thus limited to its use for the purposes of the railroad enterprise, it is necessarily subject to the exercise of all those powers reserved to the legislature to which the franchises of the corporation are subject. If the latter can be restricted or modified by subsequent legislation, the uses to which the land which the corporation has acquired may be changed-by the same authority. It has long been the policy of the legislature to qualify corporate franchises in such a manner as to render them subject to the control of the law-making power. For this purpose the revised statutes provided that the charter of every corporation which should thereafter be granted by the legislature should be subject to alteration, suspension or repeal at its discretion. 1 R. S., 600, § 8. * * * Tire property of the railroads is not taken away from the proprietors, who are still allowed to use it for all the purposes for whicli it was acquired from the original owner. Nor is there anything unlawful in obliging the railroad company to make the necessary excavations or embankments for taking the highway across the railroad. The disturbance of the surface of the ground, which has rendered such work necessary, was effected by the railroad itself; and the reservation of the legislative authority we may suppose to have been inserted for the purpose of obliging the companies to conform to such directions as subsequent legislatures should discover to be necessarv for the public good or which should be required by public policy."

In the case of the Boston & Albany R. R. Co. v. Village of Greenbush, 52 N. Y., 510, Church, Ch. J., says, “ The validity of the act of 1853, authorizing the laying out of streets and highways across the track of railroads without compensation to the owners of such railroads was affirmed in the Albany Northern Railroad Company v. Brownell, 24 N. Y., 345, upon grounds •entirely satisfactory to this court, and we concur in the construction of the act given in that case.”

To the same effect is the case of the President, Managers and Directors of the Delaware & Hudson Canal Co. v. Village of White hall, 90 N. Y., 21.

It will be observed that these cases proceed upon the theory that the legislature in granting a charter to a railroad corporation has reserved to itself the power to qualify the corporate franchises and determine how its power shall be exercised, and that under this power it may permit the construction of highways on railroad lands so as to allow the public to cross the same without av/arding compensation for property taken. In such a case the constitutional provision referred to has no application for the reason that it is not the taking of private property, but is the exercise of a right reserved by the statute and the title of the railroad is deemed subject and subordinate to such right.

We are unable to see why this principle does not dispose of the question under consideration. True, a railroad is different from a highway laid out by commissioners of highways of towns, but, as we have seen, the statute gives one railroad corporation the right to cross another. The railroad to be crossed is deemed to own its lands subject to the conditions imposed by the statute. One of the conditions is that it shall permit any other railroad to intersect or cross. True, compensation is to be awarded.. Such is the provision of the statute. But the compensation is awarded under the statute, and not by reason of the constitution. The legislature in granting a charter to a railroad corporation had the right to impose the condition that it should allow other railroads to cross without compensation, and had it so provided it could not be successfully contended that the provision would have been in contravention of the constitution. The legislature has seen fit to provide for the manner in which the crossing shall be made and allows compensation therefor. This is independent of the constitution. It has now provided that the compensation may be secured by a bond approved by the court, and that upon giving such a bond the crossing may be had pending the determination of the commissioners. It is not an unreasonable enactment. The proceedings may be prolonged through a number of years and in the meantime the public deprived of the facilities which the crossing would afford, and under the powers reserved by the legislature the enactment does not appear to us to be in violation of the provisions of the constitution.

These views render it unnecessary to consider the question as to whether a bond furnishes a definite and adequate source of payment for the property taken under the rule referred to in the cases of Matter of the Mayor of the City of New York, 99 N. Y., 577 : Sage v. City of Brooklyn, 89 id., 196, and Bloodgood v. M. & H. R R Co., 18 Wend., 18.

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

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


text:
    Leonard Vogel et al., Resp’ts, v. Valentine F. Whitmore et al., Impl’d, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Mechanics’ lien—Joint contract—Subsequent agreement between CONTRACTORS. —
    A contract for building certain houses was made with two contractors jointly, who thereafter agreed between themselves that one should do the mason and the other the carpenter work, and fixed the amount each waste receive under the contract Held, that the effect of this agreement was to sever their interests under the contract, and to make each a sub-contractor under the joint contract, and that the lien of material men who furnished supplies to either upon his sole credit, and relying on his interest in the contract, was limited to the amount coming to the contractor with whom they dealt.
    Appeal from a judgment entered upon a decision of the Monroe equity term.

      Abram Benedict, for app’lts; F. E. Drake, for resp’ts.
   Haight, J.

This action was brought to foreclose a mechanic’s lien.

On the 21st day of March, 1892, the defendant Jacob J. Augustin entered into a contract in writing with the defendants Isaac McNeil and John Kleinow to construct for him certain buildings upon bis premises in the city of Rochester for the sum of $11,800. Upon the making of such contract the defendants MeNeil and Kleinow agreed between themselves that Kleinow, who was a mason, should do all the mason work upon the building, and furnish the material therefor, and that he should receive out of the contract price the sum of $5,210, and the defendant McNeil, who was a carpenter, should do all of the remainder of the work, and should receive therefor the balance of the contract price. The defendants McNeil and Kleinow each performed their part of the contract, and have each been paid in full the contract price, with the exception that there still remains due and owing to the defendant Kleinow $660, and to the defendant McNeil $3,731.58, making a total of $4,391.58; which sum the defendant Augustin has-paid into court to abide the result of this action. It further appears that the defendant Kleinow purchased of the firm of Whit-more, Rauber & Vicinus materials amounting to the sum of $694.46, and of the Rochester German Brick & Tile Company materials amounting to the sum of $1,519, which he used in the construction of his part of the building, and that on the 8th of August, 1892, liens were 'duly filed by these defendants for the amount of their respective claims.

The trial court has found as facts “ that the sale of materials by the said Whitmore, Eauber & Yicinus and the Rochester German Brick & Tile Company to said Kleinow was made with them respectively without any knowledge of the terms of said contract or that said Isaac McNeil, had any interest in said contract, and relying exclusively upon the interest of said Kleinow and the amount he was to receive therefrom, and that the said Whit-more, Eauber & Yicinus and the Rochester German Brick & Tile Company in making said sales gave credit solely to the said Kleinow relying upon his interest in said contract for payment for their sales.”

It further appears that the defendant McNeil purchased of the plaintiffs, who were doing business under the firm name of Yogel & Binder, lumber, sash, doors, blinds and frames which were used by him in the building, amounting to the sum of $1,187.95; that he also purchased of the defendants Edward Goggin and John W. Knowles, who were doing business under the firm name of Goggin & Knowles, the tin and galvanized iron used by him upon the building, amounting to the sum of $825; that he also purchased of the defendants Lyman M. Otis and Charles H. Moody, doing business under the firm name of L. M. Otis & Co., materials consisting of lumber, etc., which was used in the building amounting to the sum of $1,856.07, and that upon the 9th day of August, 1892, liens were duly filed by such plaintiffs and defendants for the amount of their respective claims. The amount of the liens so filed more than exceeds the sums remaining unpaid to the defendants McNeil and Kleinow on the contract.

The trial court found as conclusions of law that the defendants, Whitmore, Eauber & Yicinus and the Rochester German Brick & Tile Company, acquired a lien to the extent of the $660 still remaining due and owing to the defendant Kleinow; and that the plaintiffs and defendants Goggin & Knowles and L. M. Otis & Co., acquired a lien to the extent of the $3,731.58 still remaining due and owing to the defendant McNeil.

From the judgment entered thereon the defendants Whitmore,, Eauber & Yicinus, and the Rochester German Brick & Tile Company, appealed to this court. They claim that inasmuch as their liens were first filed, and that the defendants McNeil and Kleinow were joint contractors, that they are entitled to have their claims* first paid in full, and that all over the $660 going to Kleinow should come out of the amount going to McNeil.

The appellants would doubtless be entitled to have this disposition made of the funds were it not for the subsequent agreement-made between the defendants McNeil and Kleinow, and the equities of others that have come into existence thereunder. Pell v. Baur, 133 N. Y., 377; 45 St. Rep., 241.

But we think the circumstances of this case call for the application of a different rule. If A. should contract with the owner to construct a house upon his premises, and should sub-let the mason work to B. and the carpenter work to C., material-men supplying B. could acquire no lien upon the premises for more than the amount coming to him. They could not acquire a lien upon that which was going to C. Carman v. McIncrow, 13 N. Y., 70; Lumbard v. S., B. & N. Y. R. Co., 55 id., 491; Crane v. Genin, 60 id., 127 ; French v. Bauer, 134 id., 548 ; 48 St. Rep., 333; Larkin v. McMullin, 120 N. Y., 206 ; 30 St. Rep., 902; Hagan v. American Baptist Home Mission Society, 14 Daly, 131; 6 St. Rep., 212.

- The defendants McNeil and Kleinow entered into the contract with Augustin to construct the buildings. They thus became joint contractors, each liable to Augustin for the - proper performance of the contract. They were not, however, co-partners or agents for each other so that one could bind the other. The appellants were not parties to the contract, nor have they any contractual relation with either of the parties thereto, excepting Kleinow. After the execution of the contract with Augustin, McNeil and Kleinow entered into a further agreement by which Kleinow was to do the mason work, and McNeil the other work called for by the contract, fixing the ’amount that each should have therefor. The effect of this agreement was to sever their interests under the contract and to make each a sub-contractor under the joint contract.

The appellants furnished their material to Kleinow without any knowledge of the terms of the contract with Augustin or of the interest that McNeil had therein, and gave their credit solely to Kleinow relying upon his interest in the contract, and, under the rule to which we have referred their liens are limited to the amount that is coming to him under the contract. To hold otherwise would be inequitable and deprive the other lienors of rights which the statute intended to protect. Ordinarily the mason work has to be completed first before the carpenter can put in the woodwork. There is, therefore, no difficulty about the mason’s first acquiring a lien. If they can extend their liens so as to cover that which under the agreement" is reserved for the carpenters, the carpenters will stand but a poor show under our lien law. Wern ay assume that the plaintiffs and the defendants Goggin & Knowles and L. M. Otis & Co., who trusted the defendant McNeil for the material furnished to him to enable him to perform his part of the contract, knew of the contract with Augustin and of the subsequent contract with Kleinow by which it was agreed that McNeil was to have all of the contract price over and above the $5,210 going to Kleinow, and thus knowing his interest in the contract and relying thereon furnished him with the material with which to perform it. ,

We do not think that it was within the contemplation of the statute that the creditors of Kleinow should acquire a superior lien to the creditors of McNeil upon the funds going to him.

The case of Pell v. Baure, supra, has been pressed upon us as sustaining the appellant’s contention. We think, however, that ease is distinguishable. The mason and the carpenter submitted separate bids, but when the contract came to be drawn they requested “ that their several agreements be merged into one joint -contract between them and the owner.” There was no subsequent agreement between them by which they could be regarded as subcontractors. The material for which the lien was filed was furnished with the knowledge and consent of both parties, and the contest in that case was as between the lienor and the joint contractors. Whilst in this, the question is as to the rights of the lienors of the respective contractors.

We have carefully examined the evidence and are satisfied that the findings of facts by the trial court are amply sustained. The equities are with the respondents. It appears that the members of the firm of Whitmore, Rauber & Vicinus are" also stockholders and officers of the corporation, the Rochester German Brick & Tile Company; that their offices are together and one person keeps the books of the corporation and of the firm; and that the collector of. the firm also collects for the corporation: that Kleinow paid to the collector the sum of $1,800, the greater portion of which was money derived under the Augustin contract. . This money, instead of being applied upon the material furnished for the Augustin buildings, was credited upon an old indebtedness in violation of the rights of McNeil and his lienors.

The judgment should be affirmed, with costs.

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


author: Hardin, P. J.

text:
    Cassia A. Jones, App'lt, v. Richard E. Jones, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Judgment—Fraud.
    To justify the setting aside of a judgment on the ground of collusion, fraud or corruption on the part of the attorney for the moving party, the proof thereof must be clear and satisfactory.
    2. Same—Decision ob- reverse.
    The special term has no power, on motion to vacate a judgment on the ground of collusion or fraud of an attorney, to reverse, or to add to or subtract from the decision made by the referee on whose report the judgment was entered.
    3. Divorce—Jurisdiction,
    In an action for absolute divorce the answer denied all the allegations except that there had been a marriage in form between the parties, and set up that plaintiff had a husband living at the time of such marriage. On the hearing before the referee, the plaintiff failing to give any evidence, the complaint was dismissed and a judgment directed for defendant on the evidence produced by him declaring the marriage null and void. Held, no error ; that the referee and the court confirming his report had jurisdiction of the person and subject matter, and that the answer contained allegations sufficient to bring the subject matter within § 1743 of the-Code.
    4. Judgment—Vacation—Laches.
    A delay of fourteen months after notibe of judgment before moving try set it aside for fraud and collusion amounts to laches and neglect, which may be considered in disposing of the motion.
    Appeal from an order of the special term made on the 5th day of April, 1890, held by Kennedy, J., denying a motion made by the plaintiff “ to open, vacate and set aside the judgment in this action entered in the clerk’s office of the county of Madison, on the 11th day of May, 1888.’’ Plaintiff in her complaint alleged that on the 3d day of September, 1865, at Hastings, Barry county, Michigan, she was married to the defendant,- and that they lived as man and wife until some two years previous to the commencement of this action ; and in her complaint stated numerous alleged acts of adultery committed by the defendant without her consent, connivance or privity. An answer was served by the defendant on the 28th of September, 1887, which denied aff the allegations of the complaint except “ the defendant admits that on the 3d day of September, 1865, at Hastings, Barry county, Michigan, the plaintiff was in form married to the defendant; said marriage the defendant avers on information and belief was illegal and void as set forth in the second answer herein ”; and he also admitted that he was a member of the firm as stated in the complaint; and he also admitted “that the issue of said alleged marriage of the plaintiff and defendant was one child named Minnie A., now about, twenty years of age ”; and then the answer proceeded to set up an independent defense, viz: “ For a separate and further answer to said plaintiff’s complaint, under which this defendant asks for affirmative relief, the defendant avers on information and belief that on or about the 11th day of January, 1862, at the county of Barry and state of Michigan, the plaintiff herein was lawfully married to one John 0. Birdzell, and lived and co-habited with him as his wife ; that at the time of the alleged marriage of the plaintiff with the defendant, to-wit, the 3d day of September, 1865, the said John 0. Birdzell was alive, and deponent is informed and believes and therefore charges the fact to be, she, the plaintiff herein, was the lawful wife of said John C. Birdzell, all of which was unknown to the defendant at the time of his said marriage to the plaintiff. Wherefore the defendant demands judgment that the plaintiff’s complaint in this action be dismissed with costs, and that a decree be granted herein by this court declaring the marriage of the defendant with the plaintiff on the 3d day of September, 1865, as alleged in the plaintiff’s complaint, null and void.” October 5, 1887, the plaintiff served a reply denying all the allegations of “ the second count of defendant’s answer.”
    On the 22d of October, 1887, at a special term held in Onondaga county, “ On reading and filing the pleadings in this action, also the stipulation of the attorneys herein and consent of the parties in open court. Ordered that the issues joined in this action be referred to Delmar T. Willis, Esq., of Oanastota, an attorney of this court, to try and determine * * The first hearing before the referee was on the 2d of November, 1887, and on that day the plaintiff in person and the defendant in person, with their respective attorneys, appeared before the referee, and the plaintiff asked for an adjournment, which was had to the 15th of December, 1887; on which day they appeared and a further adjournment was had to January 3, 1888, on which occasion the parlies in person and with their counsel appeared before the referee and the attorney for the plaintiff stated “ That he has carefully examined and investigated the case and can find no evidence to establish the fact of the adultery of the defendant and that he has no evidence to offer on that question.” Thereupon the plaintiff rested and the defendant was sworn as a witness and denied the acts of adultery alleged in the plaintiff’s complaint, and also testified, viz.: “At the time of the marriage ceremony between the plaintiff and myself, I did not know that the plaintiff had another husband living." The defendant also put in evidence testimony taken on commission in the state of Michigan. On the 10th of October, 1887, an order for an open commission was filed in the clerk’s office in Madison county, naming Clement Smith as commissioner, and on the 11th of October, when the parties appeared in the city of Hastings, they ascertained that the commissioner was out of town, and they entered into a stipulation naming another commissioner before whom the evidence was taken, and in pursuance thereof it was returned and filed in the Madison county clerk’s office, October 17, 1887. At the close of the evidence, the case was submitted to the referee, who, on the 20th of February, 1888, made his report wherein he found as matter of fact:
    “ 1. That the parties are residents of Madison county.
    “2. That on the 3d day of September, 1865, at Hastings, Barry county and state of Michigan, the plaintiff was in form married to the defendant.
    “3. That the issue of said marriage was one child, a daughter named Minnie A. Jones, now about twenty years old.
    “4. That on or about the 11th day of January, 1862, at the county of Barry and state of Michigan, the plaintiff herein was lawfully married to one John C. Birdzell, by Charles H. Stone, Esq., a justice of the peace of said county, and that said John C. Birdsall was living on the 3d day of September, 1865, the time when the parties to this action were married and was then the lawful husband of the plaintiff herein, which facts were unknown to the defendant herein until on or about the time of the commencement of this action, and that the marriage of the defendant to the plaintiff was contracted on the part of the defendant in good faith.
    “5. That the defendant is not guilty of any of the acts of adultery charged in the complaint.”
    As matters of law the referee reported:
    “ 1. That the plaintiff is not entitled to the relief demanded in the complaint.
    “2. That the marriage of the plaintiff and defendant was absolutely null and void, the plaintiff having a lawful husband living at the time of such marriage.
    “3. That the issue of said marriage of the plaintiff with the defendant, Minnie A. Jones, is the legitimate child "of the defendant herein and that the defendant is entitled to the care, -custody and control of said child.
    “ 4. That the defendant herein is entitled to a decree in this action dismissing the plaintiff’s complaint with costs and to the affirmative relief demanded in his answer, declaring said marriage contract between the plaintiff and defendant nidi and void.”
    The referee’s report and the evidence taken by him, in pursuance of a notice bearing date the 10th of April, 1888, were presented at a special term held on the 28th of April, 1888, ia ‘Onondaga county, and a judgment was ordered in accordance with the referee’s report; the order for the judgment being signed by Kennedy, J., who presided at the said special term. The pleadings and the order, with the said proposed judgment, were filed May 11th, in the clerk’s office of Madison county, and the judgment, in accordance with the referee’s report, and of the order so made at special term was entered and notice of the judgment was, within a few days, given to the plaintiff’s attorney, Upon an affidavit verified by the plaintiff on the 10th day of July, 1889, with other affidavits and papers, a motion .was made to set aside the judgment, and numerous' affidavits and papers in opposition thereto enumerated in the order made, and after consideration by the court of the papers for and against the motion, an order denying the motion was made, which is brought up for review.

      C. A. Hitchcock, for app’lt; George W. Ray, for resp’t.
   Hardin, P. J.

So far as the moving papers contain allegations of collusion, fraud or corruption on the part of the attorney of the plaintiff in conducting the proceedings, they are fully met by contradictions, explanations and affirmative statements found in the opposing affidavits and papers. The power of this court to annul a judgment or set aside one for fraudulent practices in obtaining the same is undoubted. Smith v. Nelson, 62 N. Y., 288.

In Ross v. Wood, 70 N. Y., 8, it was said “That the fraud or' accident which will authorize interference with judgments must-be unmixed with negligence on the part of the moving party.”' And in Mayor v. Brady, 115 N. Y., 616; 26 St. Rep., 340, it is-said that it is incumbent upon a moving party to show that he was deprived of his rights “ by fraud or accident unmixed with negligence of himself or his agents.” And in Ward v. The Town of Southfield, 102 N. Y., 293; 1 St. Rep., 689, it was said that the proof must be clear and satisfactory to induce the court to interfere with the judgment alleged to have been fraudulently obtained ; and also that “The solemn judgment of the court should not be lightly interfered with. It is for the interest of the public,, as well as of individuals, that there should be an end of litigation,, and where parties have been lawfully brought into a court having-jurisdiction of their persons and the subject of litigation, and have had opportunity to prosecute their claims -and to defend iheir rights, and judgment has been regularly pronounced, while such-judgment is not vacated or reversed, it concludes the parties thereto; ’’ and also that “ Before a regular judgment can be thus assailed the proof should be clear and very satisfactory. It is not sufficient merely to raise a suspicion or to show what is sometimes called constructive fraud, but there must bo actual fraud. ” Applying the rules stated in the cases to which reference has been made to the proofs presented at the special term we are of the opinion that itr was justified in finding that no fraud was-practiced upon the plaintiff by her attorney or any other person connected with the trial before the referee or the motion to confirm the report, or in procuring the judgment which was entered dismissing her complaint and awarding the affirmative relief givenagainss her by the findings of the referee and sanctioned by the order of confirmation. We think we ought not to overturn the findings of the special term upon the proofs and papers found in the appeal book before us.

(2.) The special term had no power, in hearing the motion now brought before us, to reverse, or add to or subtract from the decision made by the referee. McLean v. Stewart, 14 Hun, 472 ; approved in Rockwell v. Carpenter, 25 Hun, 532. To obtain such a result the party’s remedy was by appeal, where the decision of the referee could be reviewed.

(3.) Doubtless the referee and the counsel engaged in the trial before him were influenced by the decision and opinion in Finn v. Finn, 62 How., 83, in which case it was held, “ that a marriage contract entered into by a person having a husband or wife living, with a third person, is utterly void;” and also that the evidence of the former marriage was competent in the case, and it being established, is a defense to the action ; and “ that under § 501 of the Code of Civ. Pro., in an action for divorce a vinculo■ a defendant may have affirmative relief.” It is not needful for the purposes of the decision of the appeal now before us to determine whether such relief could have been obtained had objection been taken thereto upon the trial before the referee; nor to determine that in case he had overruled such objections and appeal had been taken from his decision that his rulings would have been sustained in that regard ; nor is it needful to determine whether § 1770 of the Code of Civ. Pro. is restrictive and prohibitive as to the “ cause of action against the plaintiff and in favor of the defendant which may be set up in an action for divorce.” Mackellar v. Rogers, 109 N. Y., 472; 16 St. Rep., 406. Section • 1743 of the Code expressly authorizes an action to be maintained to'procure a judgment declaring a marriage contract void and annulling the marriage on the ground “ that the former husband or wife of one of the parties was living, and that the marriage with the former husband or wife was then in force.” That section confers upon the court power to annul a marriage for the cause stated. In the case before us the referee and the .court confirming his report had jurisdiction of the person and the subject matter of the action ; and the answer interposed by the defendant contained allegations sufficient to bring the subject matter within the provisions of § 1743 of the Code.

In Hunt v. Hunt, 72 N. Y., 228, it is said: “ Power given by law to a court to adjudge divorces from the ties of matrimony does give jurisdiction of the subject matter of divoroe. Though the proceedings before that court from first to last of the testimony, in an application for divorce, should show that a state of facts does not exist which makes a-legal cause for divorce, yet it-cannot be said that the court has not jurisdiction of the subject-matter, that it has not. power to entertain the proceeding, to hear the proofs and allegations and to determine upon their sufficiency and legal effect.” Prior v. Prior, 15 Civ. Pro., 436; Cromwell v. Hull, 97 N. Y., 209 ; Reed v. Reed, 107 id., 548 ; 12 St. Rep. 481. In the latter case it was said: “ The court, in the present instance, had jurisdiction of the parties and of the subject matter of the action, and from the decision made no appeal was taken. All the parties, therefore, are bound?’’ Rima v. R. I. Works, 120 N. Y., 438; 31 St. Rep., 590; Blanc v. Blanc, 51 id., 822.

(4) When the referee’s report and the order approving the same and directing judgment in accordance therewith (inasmuch as the reference was to hear and determine) were filed with the clerk of Madison county, he was authorized to enter a judgment without the same being signed by the judge who had directed the same. Code Civ. Pro., § 1204. Plaintiff having had notice of the judgment fourteen months before the notice of motion, is chargeable with laches and neglect, and the special term was warranted in taking into consideration such laches and neglect in disposing of the motion made by her to set aside the judgment. Mattern v. Sage, 3 N. Y. Supp., 120. The foregoing views lead to an approval of the decision of the learned judge at the special term.

Order affirmed, with ten dollars costs and disbursements.

Merwin and Parker, JJ., concur.


text:
    Minnie Haar, App’lt, v. The Industrial Benefit Association, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Principal and agent—Ratification of compromise bt agent.
    Plaintiff was the beneficiary named in a certificate of insurance issued by defendant. Her claim thereon being disputed, she referred defendant’s agent to her husband, who; at a meeting of which plaintiff had previously been informed, agreed to accept $100 in full settlement. The policy was thereafter surrendered and a check for $100 given, which was received by plaintiff and cashed by her with knowledge that it was from defendant on the certificate. Held, that the husband's act was ratified, and that plaintiff was bound by the settlement made by him.
    Non-suit granted at the Oneida circuit and judgment entered ior the defendant. Action upon a certificate of insurance issued by the defendant, payable to the plaintiff, named therein as the beneficiary. After proofs of death were delivered to the company, its agent went to the residence of the plaintiff in the city -of Htica on Sunset avenue, had an interview with her, and she referred him to her husband upon the subject of an adjustment of the claim made upon the certificate; he held an interview with the husband, and by an appointment, known to the plaintiff, met the husband the next day at the office of the local agent, Wagner, of the defendant, and near the close of that interview the husband and the agent came to an adjustment, which was ■evidenced by a writing signed by the husband in his own name and in the name of his wife. The instrument read as follows :
    “ This agreement made this 26th day of March, 1892, in settlement of claim on certificate No. 2,088, on the life of Annie Xnuth. Mamie Haar, beneficiary, agrees to accept the sum of •otie hundred dollars in full settlement and compromise .on said ■certificate, and upon payment of said sum agrees to receipt in full said policy and return same to said Industrial Benefit Association or their agent in the city of Utica, N. Y.
    “ Mamie Haar.
    61 Herman Haar.
    “ W. P. Colvin.”
    Subsequent to the execution of that paper, and on March 28, 1893, the president and secretary of the company executed a .sight order on the treasurer of the defendant for the sum of $100, and at the foot of that order are these words: “ This order payable only when accompanied by policy No. 2,088 properly receipted." The policy had indorsed upon it as of the 30th day of March, 1892, a receipt for the $100, and the policy was delivered to the defendant with the receipt subjoined. There is .some dispute as to the execution of that receipt, as to whose handwriting it was in, but the policy was surrendered to the company .and thereupon the defendant caused to be issued a draft drawn by the cashier of the First National Bank of Syracuse bearing date April 2, 1892, for $100, payable to the order of Mamie Haar and addressed to the First National Bank, N. Y. The ■draft was delivered to the local agent, Wagner, who, in a day or two thereafter, delivered the same to the husband, and the husband in a few days delivered the same to his wife, who took the .same and went to the store of Moore & Schuderer, where she was accustomed to buy goods, near her house, indorsed the same, and it went forward and was collected, she having received from Moore & Schuderer the money. Subsequently and apparently about the 12th of April the plaintiff applied to her attorney, who communicated with the officers of the defendant, who informed the attorney that the claim had been adjusted and subsequently this action was brought. Plaintiff appeals from the judgment.

      L. N. Southworth, for app’lt; Walter S. MacGregor, for resp’t.
   Hardin, P. J.

Plaintiff called as a witness Humbert, the ¡secretary and general manager of the defendant, who testified that the proof of death was received by the defendant February •5, 1892, and that after the proof was received the company paid .$100 on the claim; he also disclosed the correspondence that had ensued between the company and the attorney for the plaintiff just prior to the commencement of this action; that the company took action upon the proof and rejected the claim. He also testified that Colvin, the agent of the company, visited the city of Utica for the purpose of adjusting the claim, and that he made a report to the company of the result of his investigations, ¡and that the company had received the agreement as to a compromise and a return of the certificate, and the execution by the defendant of its order on its treasurer bearing date the 28th of March, 1892, and that the company received the policy by mail from the treasurer and approved it and returned it to the treasurer; that thereupon the draft for $100 issued by the First National Bank was obtained. He also testified that the agreement of March 26th was delivered to the company by Mr. Colvinafter visiting Utica and that thereupon the, company made its order upon its treasurer for the payment of the $100 to the plaintiff, and that it was forwarded by mail. It appears the bank draft was sent to Wagner, the local agent of the defendant, in the-city of Utica, and in a day or two after receiving the same he delivered the same to the husband of the plaintiff, and the husband of the plaintiff delivered the same to his wife and the wife indorsed it and used it to obtain the money on it and did not restore the money before the commencement of this action. Inasmuch as this witness was called in behalf of the plaintiff his testimony is to be accepted as entitled to belief. Upon looking into the evidence given by the witness Colvin and the witnesses Herman Haar and the plaintiff herself, it seems to be quite clearly established that the husband had an interview prior to-the execution of the paper of the 26th of March with the agent, and met him by appointment at the office of Wagner, and that while in the office of Wagner there was quite a discussion over the amount of this claim and an adjustment of it.

It seems that Colvin raised some question about the validity of the claim, and according to the testimony of Herman Haar, the-husband of the plaintiff, Colvin first offered to pay five dollars for every one that had been paid towards the policy and that that offer Haar declined to accept, and thereupon Colvin offered him fifty dollars for the claim and Haar declined “to do anything of the kind; ” and the appeal book shows further as to that interview as follows: “Then he and Mr. Wagner went into another side room and had a conversation, and Wagner called me in there; Wagner says, ‘You had better settle with him; or you won’t get-anything at all; ’ Colvin says, ‘ I will make it $75; ’ I says ‘Can’t you go any more ? ’ He says ‘ Ho; ’ I says, ‘ Can’t you give about what the old lady cost? She has cost about $300 now;’ ‘Well,’ he says, ‘That has nothing to do with our company;’ ‘Well,’ I says, ‘ she was transferred from the Rochester company into your company. You were anxious to get her; ’ he says, ‘ I will make it $100. The company won’t allow me to do that, and if I report that I have paid you $100, off goes your head.’ J said I would accept the $100 under protest. Says he ‘All right, I will write a paper here and you sign it;' ” thereupon the agreement to accept $100 was made out and signed by Haar in his own name and in the name of his wife and witnessed by Colvin. Haar testifies “After talking with Mr. Colvin at the office he drew that agreement and I agreed to accept the $100 in settlement; after that agreement was made I signed it for my wife; well, yes, I signed it understanding that I represented my wife; the next morning after I had signed this I told my wife about what I had done ; .1 told her I had signed it for $100.” When the plaintiff, the wife, was upon the stand she testified her husband “told me in the morning that he had made an appointment to meet him down at the company’s office and talk it over; that he was going to see about a settlement; when he came back he told me that he had settled; I said ‘ What made; you you didn’t have any authority to settle.” He said he had settled for $100; he didn’t say anything about signing an agreement; I did not ask him where the money was ; he didn’t tell me whether he got the $100 or not.” She also testified that the draft for $100, dated April 2, 1892, was delivered to her and that she made an indorsement thereon and got the money on it; she adds “ I knew what it was for; it was told to me by my husband ; he told me when I took it away from him; he had it in bis pocket for two days; he told me it was a check for $100 from the insurance company on this policy.”

It was admitted upon the trial that “She knew when she took that and indorsed it that the money was from the insurance company.” She also testified, “My husband told me in the morning that he was going down to see about the settlement of that claim. I understood that was the object of his going down. Q. It was to get the matter compromised if he could? A. Yes, sir.”

After a careful perusal of all the evidence it is .quite apparent that the adjustment was made by the husband as the agent of the wife and that she had knowledge that he was to enter into negotiation with Colvin with a view of adjusting the claim •and obtaining thereon what money could be secured by way of a settlement, and that shortly after the adjustment was made between the husband and Colvin that she had information of the details thereof and understood the facts and circumstances relating to the adjustment before she received the draft which was made payable to her order and indorsed by her and upon which she received the money. All the testimony justifies a belief that she ratified the act of the husband in making the adjustment; she acquiesced in it; she adopted the draft by an indorsement thereof and actually received the money. Even if it be assumed that she had not given explicit authority or exact directions as to the adjustment, yet as she was made aware of the adjustment and accepted the fruits of it, she ratified the settlement.

In Owings v. Hall, 9 Peters, 629, it is said : “That the ratification of an act of an agent previously unauthorized must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded in mistake or fraud.” This doctrine has been reasserted in Seymour v. Wyckoff, 10 N. Y., 213, and numerous other cases. We think the evidence found in the appeal book brings the case within the principle alluded to and that the plaintiff is bound by the adjustment made. The essential facts which give rise to the conclusion that there was a ratification are not the subject of dispute or contradiction. Nassoiy v. Tomlinson, 20 N. Y. Supp., 384; 48 St. Rep., 182, cited by the appellant, differs from the case before us, as in that case the party had received what “was no more than his due ” with full notice “ that it was not accepted in full ” and that it was applied in part payment of the indebtedness. Our attention is called to Ryan v. Ward, 48 N. Y., 204, which was a case where there was a payment of a portion of an undisputed account and a receipt was given in full, and it was held that a party was not precluded from recovering the balance. In the case before us there was such a dispute as to the claim prior to-the consummation of the adjustment as to distinguish it from the case just cited. If the trial judge had permitted the case to pass to the j ury and a verdict had been found upon the evidence in favor of the plaintiff, it is probable that the same views that lead him to grant the non-suit would have induced him to have set the verdict aside as against the weight of evidence. Under such circumstances we think the direction given at the circuit by the learned trial judge should be sustained.

Judgment affirmed, with costs.

Merwin and Parker, JJ., concur.