author: Peckham, J

text:
    The People ex rel., The Durant Land Improvement Co., Appl’t, v. John Jeroloman, Justice, Resp’t.

      (Court of Appeals,

      Filed October 3, 1893.)

    Mandamus.
    Where, in an application for a writ of mandamus, it appears that with reference to the very question at issue the conduct of the party applying for the writ has been such as to render it inequitable to grant him such relief the court may, in the exercise of its discretion, refuse the writ.
    Appeal from judgment of the supreme court, general term, first department, reversing order of special term granting a mandamus.

      Esek Cowen, for app’lt; William B. Putney, for resp’t.

       Affirming 53 St. Rep., 249.

   Peckham, J

A mandamus is only granted in the sound discretion of the court. This discretion is' not, of course, a .capricious or arbitrary exercise of the power of the court to refuse relief even in a proper case. When, however, it appears that with reference to the very question at issue the conduct of the party applying for the writ has been such as to render it inequitable to grant him relief by mandamus, the court may, in the exercise of its discretion, refuse the writ. People v. Board of Assessors, etc., of Brooklyn, 137 N. Y., 201; 50 St. Rep., 404, and cases cited.

We think there are facts sufficient in this case to justify the court in refusing a mandamus as matter of discretion. The relator gave a stipulation in order to have its appeal in the summary proceeding heard at an early moment. That stipulation gave rights to and imposed obligations upon the landlord which did not before exist. By reason of its execution the landlord obtained what it sought in the shape of an early determination of its appeal. Having obtained a reversal of the order appealed from, the proceeding to remove the tenant'was again set down before the defendant as justice, and when it came up the amendment of 1893 to § 1310 of the Code of Civil Procedure.was referred toby counsel for the tenant, and the defendant refused to proceed. The landlord then sought the aid of the court to relieve it from its stipulation, and in its moving papers assigned as a ground therefor that the amendment in question had stayed the proceedings to remove, and its counsel urged the same reason on the argument of the motion. The court took the same view as the counsel and, therefore, vacated the stipulation. Having thus accomplished the vacatur of the stipulation upon the ground that the amendment applied to the case in hand,' the landlord then on the same day asked the supreme court for a mandamus to compel the defendant to proceed with the trial of the summary proceedings on the ground that the amendment was not retroactive in its effect and that it did not, therefore, apply to thepresent proceeding.

We think the court below might well have refused the writ upon the ground that the landlord was not in a position to ask for a mandamus even though the court were of opinion the statute did not apply to proceedings pending when it was passed. Upon the assumption that it did apply, the landlord had got rid of what it regarded as a vexatious stipulation, and there is nothing inequitable in the court saying that the landlord shall not be thereafter heard when asking relief on the ground that the act did not apply.

The order of the general term of the supreme court does not state upon what ground the decision is based, and the writ majr have been refused as a matter of discretion. We do not look into the opinion for the grounds upon which the court proceeds in such cases. We could not review the exercise of discretion by the court below unless there were a clear abuse of it, which cannot be claimed here.

Without deciding whether the amendment in question did or did not apply to the proceedings then pending, we are of the opinion that the order must be affirmed, with costs, for the reasons above stated.

Order affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    The People, App’lts, v. Austin J. Camp, Resp’t.

      (Court of Appeals,

      Filed October 3, 1893.)

    Kidnapping—Confinement in insane asylum.
    Where a person is seized and removed in broad daylight over public highways and railroads in the presence and view of many people, and taken to a public insane asylum, it does not constitute the crime of kidnapping.
    The defendant was indicted, tried and convicted in the Cayuga county oyer and terminer for the crime of kidnapping. He appealed to the general term of the supreme court, where the conviction was reversed, and he was discharged. The People then appealed to this court. The facts appear sufficiently in the opinion.

      Louis Marshall and A. P. Rich, for app’lts; Frank D. Wright, for resp’t.

       Affirming 51 St. Rep., 30.

   Earl, J.

We think the court below could, under § 527 of the Code of Criminal Procedure, properly have reversed this conviction on the ground that'the verdict was against the weight of evidence, or that justice required a new trial. But if it had reversed the conviction upon either of these grounds, or for any other errors which could be obviated or corrected upon a new trial, instead of discharging the defendant, it should have ordered a new trial. Code Crim. Pro., § 543; People v. Phillips, 42 N. Y., 200. Therefore, to uphold the decision of the general term discharging the defendant, we must be able to see in this record some fundamental obstacle to his conviction for the crime charged in the indictment.

Kidnapping was an offense at common law, and consisted in the unlawful removal of a person from his own country or state against his will. 4 Black. Com., 219; 1 Russell on Crimes, 9th ed., 962; 1 Whart. C. L., 8th ed., § 590; 2 Bish. C. L., 7th ed., § 750. In the case of adult persons it is believed that at common law the crime of kidnapping was not complete until the person alleged to have been kidnapped was removed from his own country to another, and thus deprived of the benefit and assistance of the laws under whose protection he lived. But at a very early day in England statutes were passed extending the crime to other cases, and it is now defined by statutes, it is believed, in all the states of this country, and nowhere, so far as we can discover, would the acts of the defendant, as disclosed by the evidence in this case, constitute the common law or statutory offense of kidnapping.

How what are the material facts of this case? Mrs. Baird, aged twenty-nine years, was a married daughter of the defendant, living with him separate from her husband. In August, 1890, the defendant, alleging that she was insane, went to the county judge and stated the case to him. He designated two competent and qualified physicians to examine her, and they went to the house of the defendant and examined her, and investigated her condition, and certified under oath that she was insane, and subsequently their certificate was approved by the judge. She knew of these proceedings, and knew that the physicians had adjudged her to be a lunatic, and that she was to be taken to the asylum. The defendant, having the certificate, took her in the day time to the lunatic asylum at Utica, and for that purpose he used no force or violence whatever. He believed that he had the right to take her, and she, believing that she was obliged to go, voluntarily went with him, without making any resistance or any effort to escape. She was delivered at the asylum and there remained for about three weeks, when she was discharged on the ground that she was not insane. The asylum physicians and attendants believed that she was not insane at any time while she was in the asylum. Upon the trial there was a controversy as to her sanity when the certificate of the physicians was made, and as to the motive of the defendant in taking her to the asylum, and as to his belief that she was really insane at the time. We will, for the purposes now in hand, although far from believing it, assume that she was not insane, and that the defendant knew it, and that he used the forms of law from improper and malicious motives, and yet we are of the opinion that he did not commit the crime of kidnapping.

As we have stated, under the common law these acts would not have constituted the crime of kidnapping, because Mrs. Baird was not removed from the state. The revised statutes defined 'the crime of kidnapping as follows: “Every person who shall without lawful authority forcibly seize and confine any other, or who shall inveigle or kidnap any other with intent either (1) to cause such other person to be secretly confined or imprisoned in this state against his will; or (2) to cause such other person to be sent out of this state against his will.” 2 R. S., 664, § 28. And this section of the revised statutes, consisting of these subdivisions, was carried into the Penal Code, and is there subdivision one of § 211, as follows: “A person who wilfully seizes, confines, inveigles or kidnaps another with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service, or kept or detained against his will,” is guilty of kidnapping. The Code provision was a mere revision -of the provisions contained in the revised statutes, and we have no reason to suppose that it was intended to embrace within the definition of the crime acts before innocent. When the person seized or inveigled is not removed from the state, the intent must be secret confinement within the state. When the person is seized and removed in broad daylight over public highways and railroads in the presence and view of many people, and taken to a public asylum, where there are public officials, numerous physicians and other people, there certainly is no secrecy about the transaction, and it bears-no resemblance to what has always been understood to be kidnapping.

In such a case there may be an assault and false imprisonment, but not the crime here charged. Such a person has the protection of our laws and ample remedies against the wrongdoer, and the writ of habeas corpus is always available for his release. Suppose a public officer without authority of law publicly seizes-a person in the street and takes him to the police station or jail, is he guilty of kidnapping? Suppose the defendant, inflamed by undue religious zeal, had taken his daughter by force and carried her to some church and compelled her to sit in a pew by his side during religious services, would he have been guilty of this crime? These questions must obviously be answered in the negative, and unless they can be answered in the affirmative the defendant’s conviction upon the facts of this case cannot be maintained.

The first part of § 211 provides for all cases of kidnapping by seizure and confinement within the state. The latter part, after the words “ within this state,” relates to cases of removal of the person seized or inveigled from the state, and if a broader meaning be given to the latter part, then the fore part is useless and unnecessary. In construing the section, a purpose should be attributed to all the language used.

It is clear, therefore, that a new trial could not result in the conviction of the defendant, and hence he was properly discharged.

Many other questions are discussed in the learned and exhaustive briefs submitted to us, but we do not consider their determination at this time important.

The judgment should be affirmed.

All concur.


author: O’Brien, J.

text:
    The Farmers Loan & Trust Company, as Guardian, Resp’t, v. Elbert C. Wilson, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Landlord and tenant—Payment of rent to agent after prlncfal’s DEATH.
    The power of an agent-to collect and receive payment of rent falling due to his principal, when such power is not coupled with an interest, terminates and ceases upon the death of the principal, and payment made thereafter to the agent does not bind the estate of the principal, though the payment be made in ignorance of the principal’s death.
    3. Same.
    When a man knowingly deals with the agent of a principal who resides in a foreign county, it must be assumed that he will guard against the perils that the transaction necessarily involves.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered upon decision of the court without a jury.

      Hugo Hirsh, for app’lt; Turner, McClure & Rolston, for resp’t.

       Affirming 45 St. Rep., 623.

   O’Brien, J.

The plaintiff, as general guardian of infants, heirs and devisees of one William Maden, has recovered judgment against the defendant for rent claimed to be due under a lease of certain real estate, executed in the lifetime of the testator. Maden died in Cuba on the 6th of August, 1884, having by will devised the real estate in Brooklyn, the rent of which was claimed in this action, to his infant children, who are represented by the plaintiff. He had been for many years before his death a resident of Cuba, and the owner of the real estate in question. The will was duly proved and established under the laws of that country on the 27th of August, 1884, and such proceedings were afterwards had here that it was admitted to record in the office of the surrogate of Hew York on the 10 th of June, 1885, and the plaintiff was appointed guardian December 19, 1888. The real estate had been for many years managed and rented by an agent of the owner, who acted under a verbal authority. The judgment was for rent accruing under the lease subsequent to the death of the owner, from the month of September, 1884, to and including the month of May, 1885. It is undisputed that the defendant paid all the rent claimed to the agent subsequent to the death of his principal, but as it does not appear that the agent ever accounted for the same, the sole question presented by this appeal is whether the defendant is protected by such payment in this action. On the 8th of April, 1884, the testator, by his agent, and the defendant executed the lease, which appears to be under seal, acknowledged and recorded. By this instrument Maden, who is described as “of Corteñas, Island of Cuba,” demised to the defendant for the term of five years from May 1 thereafter the buildings in respect to which the rent is claimed to have accrued, at the yearly rent of $3,500, payable monthly in advance.

The lease contains a provision for renewal for five years, at $4,000 per year, payable in like manner. The defendant, on his part, covenanted to pay the rent as stipulated and to surrender •the premises at the expiration of the term. The defendant had, •during the four years prior to the execution of this lease, occupied the premises as tenant under agreement with the agent, and had paid the rent to him, and it appears that the defendant never had .any personal dealing with the owner, though he knew he was in fact the landlord, and where he resided. At the time that the -defendant paid the rent in question to the agent, neither of them had any knowledge or information in regard to the death of the -owner.

The rule is well settled by authority that the power of an agent to collect and receive payment of rents falling due to his principal, when such power is not coupled with an interest, terminates ■and ceases upon the death of the principal, and that payment made thereafter to the agent does not bind the estate of the principal, though the payment be made in ignorance of the principal’s death. Weber v. Bridgman, 113 N. Y., 600; 23 St. Rep., 674. The rule seems to have originated in the presumption that those who deal with an agent knowingly assume the risk that his anthority may be terminated by death without notice to them. The case of an agency coupled with an interest is made an exception to the rule. Grapel v. Hodges, 112 N. Y., 419; 21 St.Rep., 845; Hunt v. Rousmanier, 8 Wheat., 204. It is urged that the exception applies to this case for the reason that the agent was entitled to commissions upon the rents collected, and to be allowed his disbursements for repairs, insurance and taxes. The trial court •refused to find that he had such an interest as would prevent the revocation of the power upon the death of the principal. There was no proof to show that the agent, at the time of the death, had any claim on account of repairs, insurance or taxes, and, therefore, it is needless to inquire how far, if at all, these elements, if shown to exist, would change the case. It may be assumed that the agent was entitled to compensation for his services, in the form of commissions upon the money collected while the agency was in force. But this would not give him such an interest as would continue his power after his principal’s death. Agents are quite frequently paid by commissions upon sales of property, or upon moneys collected, and to hold that this constitutes such an interest as would -save the power from revocation by the death of the principal would be, in effect, to abrogate the rule in most cases. The interest, which can protect a power after the death of the person by whom it was created must be an interest in the thing itself. The power must be engrafted upon some estate or interest in the thing to which it relates. Hunt v. Rousmanier, supra. Here the agent had no estate or interest in the property nor in the rents as such.

The most that can be said is that he was entitled to commissions upon what was to be produced by the exercise of the power, and hence it cannot be said that the power and the interest are ¡united in the same person at the time of their creation. It cannot, we think, be claimed for a moment that the principal, in the creation of the power, conferred upon the agent any interest in the subject to which it was intended to relate. At no time could the agent act except in .the name of his principal, and a power thus limited must necessarily cease with 'the death of the person in whose name it is to be exercised. The learned counsel for the-defendant, in an interesting and ingenious argument, has attempted to take this case out of the operation of the general rule, but,, while much impressed with the equity of his position, we have not been able to make any satisfactory distinction between the facts as they appear in the record and those that appeared in the cases to -which reference has been made. The result which we feel constrained to reach will illustrate how a rule or principle of law will operate harshly and produce what might seem to be injustice-in a particular case. This conclusion must, however, be modified when we consider that either the defendant or the infant children of the deceased must bear the loss which has occurred by the default of the agent. The defendant could have foreseen what has-happened and protected himself against loss by insisting upon payment to the owners alone, or by proper stipulations in the-lease. There can be no doubt that a party may, by his contract, estop his personal representatives or his estate from recovering-money paid to his agent in good faith, after his death, under such circumstances as appear in this case, but we see no reasonable-way that the children of the owner, who are the real plaintiffs in this case, could have avoided the result. The presumption that every man knows the law implies that they will act with reasonable caution and vigilance in their business affairs, and that in entering upon contracts or carrying them out they will become informed by competent advice of the risks and dangers that beset, them. When a man knowingly deals with the agent of a principal who resides in a foreign county, it must be assumed that he will guard against the perils that the transaction necessarily involves, and while courts are disposed to exercise all their power to relieve parties who have acted in good faith from the result of their neglect to provide, in the first instance, against accidents which might have been foreseen, there seems to be no way open for such a result in this case, without disregarding or refining away an important rule of law. This would practically be judicial legislation. We feel bound to follow the current of authority, and to leave the work of reforming the law on this question, if reform be necessary or desirable, to the legislature.

There would seem to be an incongruity in the law of agency with respect to the effect of a revocation of the agent’s powers by the act of the principal himself and a revocation produced by his. death. In the former case the revocation does not affect third parties, dealing with the agent in good faith, without notice. Claflin v. Lenheim, 66 N. Y., 301; Williams v. Birbeck, Hoff. Ch.,, 359; Blake v. Garwood, 42 N. J. Eq., 276; Wharton on Agency, §§ 99-104; Story on Agency, § 470. While in the latter, as we-have seen, the revocation operates upon all parties, without notice, unless the power is coupled with an interest, in which case the-agent may execute it in his own name, notwithstanding the death of the principal. The civil law protected third parties who dealt in good faith with the agent without notice in all cases, whether the power was revoked by the act of the principal or his death, but, as Chancellor Kent has observed, this equitable principle does not prevail in the English law, 2 Kent Com. (13th ed.), 646, from which the rule that obtains in this state was derived, though in other jurisdictions, and perhaps in England, the harshness of the common law has been modified by statute. Weber v. Bridgman, supra, p. 602. The common-law rule has become too firmly established in this state to be disturbed by judicial action, though a change by the law-making power would be in harmony with more enlightened views, and would promote the interests of justice.

The judgment must, therefore, be affirmed, with costs.

All concur.


text:
    Henry Spruck, Resp’t, v. Hugh McRoberts, Impl’d, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Mechanic’s lien—Consent op owner.
    Plaintiff erected a building under a contract with T., who had wrongfully deprived this defendant of the land, from which T. was after-wards ejected. Before taking the contract he was fully informed as to the condition of the title, and warned by different persons that the land belonged to defendant, to which he replied that he was willing to take his ■ chances. Held, that the mere silence of defendant or his omission to forbid the plaintiff from proceeding under his contract could not be construed into consent on his part to anything that was done by the parties in possession, or by the plaintiff acting under their authority.
    3. Same.
    The true owner was not bound to seek out the plaintiff, or any one else acting under a hostile claim, and inform him of his rights at the peril of subjecting his property, which at all times he was seeking to recover, to the burden of a lien based upon acts manifestly wrongful, and against which he in every proper way protested.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff in action to foreclose mechanic’s lien.

      William M. Mullen, for app’lt; Oscar Frisbie, for resp’t.

       Reversing 45 St. Rep., 624.

   O’Brien, J.

The plaintiff recovered a judgment directing the sale of certain lands of the defendant McEoberts to satisfy a mechanic’s lien, which it was claimed the plaintiff had under the provisions of chapter 342 of the Laws of 1885. The -notice of the lien was filed in the proper county on the 11th day of April, 1889, against one George Tarter and his wife, as the owners of of the land, and the defendant McEoberts is not referred to therein as owner or otherwise. The plaintiff entered into a contract on the 13th of November, 1888, with Tarter and his wife for the erection of a hotel building on the lands, at a cost of over $6,000, and was paid by them from time to time during the progress of the work, and in pursuance of the contract, about $5,000. The defendant is, in fact the owner of the land, and was when the contract was made and the building erected, but some time before the contract was made the Tarters went into the actual possession under title hostile and adverse to the defendant, and kept their possession, and assumed to be the owners in hostility to the defendant until the 2d day of January, 1890, when they were compelled to surrender the premises to the defendant under a judgment and execution in an action of ejectment.

This action was commenced against the Tarters, their grantors and others, on the 27th day of March, 1889, by the service of a summons and complaint and the filing thereof with a notice of the pendency of the action in the county clerk’s office of the proper county. The plaintiff by his contract was to complete the building on or before May 1, 1889, and it was completed substantially according to the contract, a considerable part of the work having been done after the defendant had brought the action to recover the land upon which the structure was being erected. There can be no doubt upon the finding that the plaintiff entered into the contract and erected the building upon the faith of the title and responsibility of the Tarters, and trusted to them and their title for payment of his compensation. The referee has found substantially that the plaintiff, before entering into the contract, was notified by different persons that the land belonged to the defendant, and to have nothing to do with the erection of the building, to which he replied in substance that he was willing to take his chances ; but the force of these facts was evidently much impaired in the mind of the learned referee by the circumstance which he finds, that this notice was not given in pursuance of any authority or request from the defendant himself. One of the persons who thus warned the plaintiff of the danger of making any expenditure upon the land on the strength of Tarter’s title was the attorney of record for the defendant in this action, and it is a fair inference from the whole record that he acted for the defendant, or at least obtained the information from him. But however that may be, the important fact cannot be ignored that the plaintiff, before he made any contract to build and before he incurred any expense, was fully informed, not only of these statements, but by his own inquiries and investigations, as to the condition of the title, and that with full knowledge of all the facts he deliberately elected to enter- upon and perform the contract for the construction of the building upon the faith of a title which proved to be utterly invalid, and also in reliance upon the pecuniary responsibility of'parties who failed to pay the contract price in full. The record does not disclose the slightest ground for supposing that the plaintiff’s conduct in this respect was influenced in any degree by any word, act or omission of the defendant, and so far as the plaintiff seeks to sustain the judgment upon general principles of equity these considerations are important.

The statute which gives to a contractor, mechanic or material man a lien upon the lands of another created a remedy in such cases which was unknown to the common law, and while it must receive a liberal construction to secure the beneficial purposes which the legislature had in view, it cannot be extended to a state of facts not fairly within its general scope and purview. Spencer v. Barnett, 35 N. Y., 94: Tiley v. Thousand Island Hotel Co., 9 Hun, 424.

The statutory incumbrance is imposed upon real estate in such cases only when the work is performed or materials furnished in pursuance of some contract with the owner who is sought to be charged, or whose interest is to be affected, or when his consent is in some way established. It is not claimed that the defendant ever made any contract with anyone that connects him in any way with the work or material that the plaintiff put upon the land. The judgment proceeded and has thus far been upheld upon the sole ground that the building was erected with his consent. It is not, and obviously cannot be urged that any express consent is shown. The most that can be claimed is that the defendant knew what was being done by the plaintiff and failed to forbid or prevent him. There is not the slightest reason to believe that anything the defendant could have said to the plaintiff would have influenced his action or changed his resolution to take the chances upon his contract with Tarter. The latter agreed to pay him $6,860, and actually did pay $5,000, and no doubt the plaintiff would have been successful in collecting the whole sum from the parties who agreed to pay had the judgment in ejectment been delayed or given against the defendant. The result of that suit was a contingency which evidently did not enter into the plaintiff’s calculations at the time he entered upon the performance of the contract to build, though the information in his possession, or within his reach, might very well have foreshadowed the risk involved. If the defendant had consented to the expenditure made by Tarter upon this land, that fact might have been a very serious obstacle in the way of his action to recover it, or even if, with knowledge of all the facts, he looked on and allowed an innocent party, believing that he had the title, to make valuable improvements upon it without objection, equity might hold him estopped from afterwards calling in question the title of a party who had acted upon the faith of his silence. But these principles have no application to this case, for the plain reason that it does not appear that the defendant failed in any duty that the law imposed upon him, or that the plaintiff acted otherwise than upon his own judgment, having knowledge of all the facts.

The defendant had been ousted from the possession of his land by parties claiming title, but who were in-fact mere trespassers, and while thus out of possession and wrongfully deprived of any control or dominion over it, the plaintiff contracted with the wrong doers to erect a building on the land. His security for the payment of the contract price of the building under these circumstances was the personal responsibility of his employers and their interest, whatever it might turn out to be, in the land. In the absence of proof connecting the defendant with the contract, or showing that he consented to the work, neither he nor his title is bound by what was done. When a contractor, mechanic or material man proposes to erect a building, or to expend labor or material upon land under a contract with a person in possession, it is incumbent upon him to inquire and to assure himself of the fact that the person with whom he contemplates making the contract, or for whose benefit he is about to employ labor or materials, has in fact such an estate or interest in the land as will enable him to assert a statutory lien. If he fails to do this, or is mistaken in his calculations, and contracts with a person without title, the statute does not impress a lien upon the estate of the true owner unless he is in some way connected with the contract or has given his consent to the expenditure in such manner as to bind him within recognized principles of equity.

The cases relied upon by the learned counsel for the plaintiff to support the judgment are clearly distinguishable from this, as in all of them the actual owner had in some way authorized the improvement, or was related to the contract, or given his consent, or, having the control or possession of the property, his consent was found as a fact from circumstances, and such finding was a just and reasonable inference from his conduct. Schmalz v. Mead, 125 N. Y, 188; 34 St. Rep., 779; Otis v. Dodd, 90 N. Y, 338; Husted v. Mathes, 77 id., 388; Burkitt v. Harper, 79 id., 273; Cowen v. Paddock, 137 id., 188; 50 St. Rep., 386.

The record in this case discloses no such element of consent. The defendant’s position was that the possession of Tarter and his wife was wrongful from the beginning, and that they were trespassers upon his property. He not only refused to sanction any act of ownership or dominion on their part over the property, but actually brought an action to eject them therefrom a very short time after the plaintiff entered into the contract with them, and before it was performed, and there can be little doubt from the record that the plaintiff had full information as to his attitude. At all times, and in all reasonable ways, the defendant resisted and repudiated the Tarters’ possession and claim to the property, and the plaintiff, having acted under their authority solely, cannot, under the circumstances, be awarded any greater or different measure of relief than they could assert themselves.

The defendant having been deprived of the possession and control of the property, and his rightful relation to it having been usurped by a trespasser, his mere silence, if it be assumed, or his omission to forbid the plaintiff from proceeding under his contract, cannot be construed into consent on his part to anything that was done by the parties in possession, or by the plaintiff acting under their authority. The true owner was not bound to seek out the plaintiff, or anyone else acting under a hostile claim, and inform him of his rights at the peril of subjecting his property, which at all times he was seeking to recover, to the burden of a lien based upon acts manifestly wrongful and against which he in every proper way protested. Cowen v. Paddock, supra. The situation is not changed by the fact, if it be so, that the defendant’s property has been enhanced in value by the plaintiff. A learned authority on the law of damages, in discussing the rule applicable to cases quite analogous, remarked that the improvements may be very valuable, but they may be quite unsuited to the use which the plaintiff intends to make of bis land. Even if they are such as he would wish to make, they may also be such .as he could not have afforded to make. To compel him to pay for them or to allow for them in damages, which is all the same, is quite as unjust as it would be to lay out money in any other investment for a man, and then compel him to adopt if nolens ■volens. Mayne on Damages, 255; Woodhull v. Rosenthal, 61 N. Y., 397. One cannot make improvements upon the land of another without his consent, and charge him with their value, and as the defendant’s consent to the erection of the building cannot be implied from the facts in this case, the recovery cannot be sustained upon any just or fair construction of the statute in regard to mechanics’ liens, nor upon any principle of equity.

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

All concur.


text:
    Mary Eliza Rowland, Resp’t, v. Charles Miller, App’lt, Impl’d with The Taylor Company.

      (Court of Appeals,

      Filed October 3, 1893.)

    Deed—Covenant btjnning with the land.
    _ One B., owning several lots in the city of Mew York, contracted to sell eight of them to P. and 0., and she and they entered into a mutual restriction agreement as a covenant running with the land that no buildings other than houses or churches, chapels or private stables should be erected thereon, especially excluding a number of businesses enumerated or any irado or business ca/rried on upon said lots which shall be injurious oí' offensive to the neighboring inhabitants. Miller, who acquired the land subject to the restriction agreement, leased his lot with the house thereon to the Taylor Company, undertakers, who combined with their business a mortuary chapel and furnished rooms for the storage, dissection and post mortem, examination of dead human bodies, etc. Held, that the restriction agreement did not simply restrain nuisances, but prohibited any trade and business which would be offensive to people generally, and embraced such a business as was intended to be canied on by the Taylor Company, other . that of simply keeping coffins for sale and using the chapel as a place of worship.
    Appeal from judgment of the New York superior court, general term, affirming judgment for plaintiff entered at special term upon findings, etc.
    In November, 1865, Miss Burr owned several lots of land in the city of New York, on the easterly side of Madison avenue, extending easterly to Vanderbilt avenue, between Forty-second and Forty-fourth streets, all of which were then vacant; and on the twentieth day of that month she contracted to sell eight of the lots to Pierson and Cochran. Those lots extended southerly from the .southerly line of Forty-third street one-half way to the northerly line of Forty-second street. She still retained title to several lots in the same vicinity, and on the same day she and they entered into a mutual agreement “ for themselves and their representatives, heirs and assigns, owners of any of the said lots above described, that no buildings other than dwelling houses at least two stories high, of brick or stone, or churches, chapels or private stables of the same material, shall be erected on any of said lots; that no livery or other stable shall be erected on lots fronting on Madison avenue, and that there shall not be allowed or erected on any part of said lots of land any tenement house, brew.ery or lager beer saloon, tavern, slaughter house, butcher’s or smith’s shop, forge, furnace, steam engine, foundry, carpenter’s or carriage or car shop, manufactory of metals, gunpowder, glue, varnish, vitriol, turpentine, ink or matches, or any distillery, or any establishment for dressing hides, skins or leather, or any museum, theater, circus or menagerie, nor shall any other buildings be erected or trade or business carried on upon said lots which shall be injurious or offensive to the neighboring inhabitants ; it being expressly agreed that this covenant runs with the land, and is binding on ail future owners thereof.” This agreement is called the restriction agreement, and the lots have since been conveyed subject thereto.
    The defendant Miller has become the owner of the lot on the corner of Madison avenue and Forty-third street, and the plaintiff owns the lot next southerly thereof, which she occupies as her residence; and no question is made that those lots passed into the ownership of the plaintiff and Miller subject to the restriction agreement. On the 1st day of December, 1890, Miller leased his lot with the house thereon to the Taylor Company for the term of ten years, and it entered into the possession thereof. This action was commenced on the 81st day of January, 1891, to restrain the defendants from violating the covenants contained in the restriction agreement, by carrying on a business condemned thereby. The action was brought to trial at a special term, and the trial judge described the business carried on upon the Miller lot as follows :
    “ That the business of said company is, and for many years has been, that of undertakers, and that a part of that business consists in the reception of human dead bodies, their preparation for burial or other sepulture, involving embalment in some instances, and in the sale of coffins, caskets, shrouds and other paraphernalia generally used in the final disposition of dead human bodiés. That said company, when it obtained said lease, intended to fit up the building on said premises, which for the most part is built and arranged like an ordinary first-class corner dwelling house in that locality, for the purposes of their business, and have fitted up the same and are now carrying on their said business in said building. That said company keeps and uses fourteen wagons in its business, each of which, save one, is painted and otherwise fitted up after the manner of wagons used by undertakers in transporting dead human bodies or funeral appliances. That it has fitted up a room in said building called by said company a chapel, and intended by it for the use of people who desire to conduct or hold funeral services, and not for religious worship or services except so far as such worship or services may be incidental to such funeral ceremonies, which use of said chapel is a part of the business of said company, and from which it expects and intends to make money. That said company has also fitted up the front basement of said building (which hitherto was like the front basement of an ordinary dwelling in that locality) with special reference to and for the special purpose of holding autopsies upon and for the dissection and other post-mortem examination of dead human bodies, having prepared a marble table for that special purpose, and closed up the windows and other means of looking into their said autopsy room, in order to prevent observation of idle or curious people, who might otherwise be tempted to congregate about and look into the basement windows while dead human bodies were undergoing such dissection or examination. That in order to prevent the escape into other parts of said building of the foul and noxious odors and gases which usually escape from dead human bodies during autopsical or other post mortem examinations, said company have opened ventilating holes from said dissection room into two chimney flues, and placed gas jets in said flues in the hope and expectation that such gases and odors would escape from said building into the air above said building by means of such chimney flues, but they have taken no other precaution to prevent the spread of such odors and gases after their expected escape from the chimney flues. That a part of the undertaking business consists in the receipt and temporary storage of dead human bodies, and in affording facilities for autopsical or other post mortem, examinations upon such bodies whenever it is desired or required. That the parlors floors of said building have been elegantly fitted up for funeral purposes, and are designed by said company for that use, not as a matter of charity, but as a matter of business, and for business profit. That said company have extensively advertised their said business, and the use which they propose to make and are making of said building, and that they will furnish professional embalmers, and that their premises will be kept open day and night for the purposes of their business, by means of advertisements in newspapers which circulate mainly among undertakers, and by means of circulars addressed to members of the medical profession generally in New York city and vicinity, in which they offer the use of the said dissecting room and other autopsical facilities free of charge. That already there have been several funerals held at said company’s said rooms, one of them a Chinese funeral. That already there have been held several autopsies and post mortem examinations of dead human bodies in said dissecting rooms, and it is the hope and expectation of the said company to increase the use of their said premises for the foregoing purposes as a matter of business in order to make money.” And he found that the carrying on of such business was a violation of the restriction agreement, and he ordered judgment restraining it. The sixth clause of the judgment is as follows:
    “ Sixth. The action having been tried by the parties on the theory that it involved the question whether the combination of purposes (the one associated with and depending on the other) to which the Taylor Company devoted the building occupied by it under the lease from the defendant Miller violated the covenants aforesaid, and the defendants having made no claim that any one particular -use was exempt from the operation of the covenants, it is ordered that upon payment of the costs awarded and proof that the combination of purposes has ceased, and the use of the premises for the business of holding autopsies or other postmortem examinations, dissecting, receiving and storing of dead bodies,o and the use of said premises for the business of having funerals therefrom, has been abandoned, the said defendants may at any time apply to the court, on notice, to modify the injunction so as to permit the lessees to run the office and parlors connected with said premises to solicit orders and sell coffins by sample in the wareroom, and to use the room called a chapel for the legitimate purposes of a chapel, that is, as a place of worship, all within such limitations as may be necessary to preserve the integrity of the covenants and not offend its spirit and purpose.”
    Subsequently to the rendition of the judgment, the Taylor Company having complied with that clause and shown that the business complained of by the plaintiff had ceased, upon its application to the court the following order was made:
    “ Ordered, that the injunction contained in the said judgment or decree be, and the same hereby is, modified in compliance with the provisions of the sixth paragraph of the said judgment or decree, so as to permit the said defendant, the Taylor Company, the lessees of the premises mentioned and described, in the said judgment or decree, and the said lessees are hereby permitted, to run the office and parlors connected with said premises to solicit orders and sell coffins by sample in the wareroom, and to use the room called a chapel for the legitimate purposes of a chapel, that is, as a place of worship, so long as such uses do not impair the integrity of the covenants contained in the restriction agreement in said judgment or decree more particularly referred to, and so as not to offend the spirit and purposes of the said covenants or of the said restriction agreement, without prejudice to the right of said plaintiff to apply to the court to prevent or punish any abuses of said injunction as thus modified.” The defendant Miller alone appealed from the judgment to the general term, where it was affirmed, and then he appealed to this court.

      George Zabriskie, for app’lt; John L. Hill, for resp’t.

       Affirming 46 St. Rep., 967.

   Earl, J.

The main contention of the parties is over the meaning and force of the restriction agreement. The claim of the appellant that it simply restrains nuisances cannot be sustained, and hence the numerous authorities cited by his counsel on the argument before us have little or no application. If the agreement was intended simply to restrain any trade or business which was per se a nuisance, or which was carried on in such a way as to make it a nuisance, then it was wholly unnecessary. The law will always, upon the application of a party aggrieved, restrain and abate a private nuisance. This case is not governed by the general law as to nuisances, but by the force and effect of the covenants contained in the agreement.

When the agreement was made, the parties thereto, desiring to improve, protect and benefit their lots, and consulting their respective interests, absolutely prohibited the carrying on of certain kinds of business specified upon the lots. They determined for themselves that those kinds of business were undesirable in the vicinity of residences, and covenants restraining them can be enforced without any proof whatever that they are-‘‘injurious or offensive.” A person owning a body of land and selling a portion thereof may, for the benefit of his remaining land, impose any restrictions, not against public policy, upon the land granted he sees fit, and a court of equity will generally enforce them. Trustees of Columbia College v. Lynch, 70 N. Y., 440; Same v. Thacher, 87 id., 311; Hodge v. Sloan, 107 id., 244; 11 St. Rep., 770.

The business carried on by the Taylor Company is not among those kinds particularly specified in the agreement. But the claim of the plaintiff is that it is prohibited by the general clause in the agreement as “injurious or offensive to the neighboring inhabitants.” This clause enlarges the scope of the agreement. It is a too narrow construction to hold that it prohibits only trades or kinds of business which are nuisances per se, for reasons already given and for the further reason that nearly, if not quite all, the trades and business specially named are not such nuisances. Any kind of business may become a nuisance by the manner in which it is carried on, from its location, and a business may be offensive to neighboring inhabitants and yet fall far short of being a legal nuisance which a court of equity will abate as such.

This clause in the agreement must have a reasonable construction. We cannot suppose that the parties had in mind any business which might be offensive to a person of supersensitive organization, or to one of a peculiar and abnormal temperament, or to the small class of persons who are generally annoyed by sights, sounds and objects not offensive to other people. They undoubtedly had in mind ordinary, normal people, and meant to prohibit trades and business which would be offensive to people-generally, and would thus render the neighborhood to such people undesirable as a place of residence.

It cannot be doubted that the business of the Taylor Company was, within this definition, offensive to the neighboring residents. People of ordinary sensibilities would not willingly live next to a lot upon which such a business is carried on. An ordinary person desiring to rent such a house as plaintiff’s would not take her house if he could get one just like it at the same rent at some other suitable and convenient place. Indeed, her house would be shunned by people generally who could afford to live in such an expensive house.

The courts can take judicial notice of the offensive character of such a business. Judges must be supposed to be acquainted with the ordinary sentiments, feelings and sensibilities of the people 9,mong whom they live, and hence in this case the learned judge, after the character of the business carried on by the Taylor Company had been, proved, could have found, as matter of law, that it was in violation of the restriction agreement, without any further proof. It was, therefore, unnecessary for the plaintiff upon the trial to call witnesses from the neighborhood to give their opinions that this business was injurious and offensive. Even if such opinions were erroneously received, they were unnecessary and harmless, as upon the undisputed -evidence as to the character of the business carried on the legal conclusion of the trial judge must have been the same.

But it is contended that the restriction agreement ought not in -this case to be enforced, because most of the lots in the block between Forty-second and Forty-third streets and Madison avenue and Vanderbilt avenue are no longer occupied for residences, and are devoted to business purposes, and the counsel for the appellant cites as an authority on this point one decision in the case of The Trustees of Columbia College v. Thacher. The principles of that case are not applicable to the facts of this. There it appeared that the contract which the plaintiff sought to enforce was no longer of any value to it, and that its enforcement would result in great damage to the defendant, without any benefit to anyone. Here the plaintiff has the right to occupy her house as a residence, and in such occupation to have the protection of the restriction agreement. She has never violated the agreement herself, or consented to or authorized or encouraged its violation by others. In order to have the benefit of the agreement, she is not obliged to sue all its violators at once. She may proceed against them seriatim, or she may take no notice of the violations of the agreement by business carried on remotely from her residence, and enforce it against a business specially offensive to her by its proximity. This is not a case where the defendants can ask for immunity in an equitable forum because others are ip a greater or less degree also violators of the agreement. The plaintiff has done nothing and omitted nothing which should authorize the occupant of an adjoining lot, in violation of the agreement, to make her residence uncomfortable and undesirable. Generally, whether an equity court will refuse to restrain the violation of such an agreement, and leave the parties to their legal remedies, on account of the changed condition affecting the premises to which the agreement relates, rests in the discretion of that court, and such discretion will not be reviewed upon appeal here. The question to be determined in the exercise of such discretion depends largely upon the facts, and mainly whether the enforcement of the agreement would greatly harm the defendant without any substantial benefit to the plaintiff, so as to make the enforcement inequitable. We cannot say, reviewing all the evidence in this case, that it would be iuequitable for the plaintiff to enforce the agreement.

The appellant claims that the judgment is too broad in its restraints. But we think all his rights are fully protected by the sixth clause of the judgment, and the subsequent action of the court under that clause upon the application of the Taylor Company.

The matters to which we have thus given attention cover the whole ground of the appeal, and our conclusion is, that the judgment must be affirmed, with costs.

All concur, except Gray, J., not voting.


text:
    Sylvanus Judd, Treasurer of N. Y. & N. J. Sheep Brokers’ Association, App’lt, v. Dennis Harrington, Resp’t.

      (Court of Appeals,

      Filed October 3, 1893.)

    Contract—Restraint op trade.
    A contract between an association of wholesale Iamb brokers and a similar association of lamb butchers, whereby the former agrees not to slaughter any lambs except for export, or sell any except to the latter, and the latter to make all their purchases from the former, such stipulations being secured by penalties, is void, as being detrimental to public interests and forbidden by public policy.
    Appeal from judgment of the Hew York common pleas, general term, affirming judgment in favor of defendant, entered upon a verdict, and from order denying motion for a new trial.

      A. Prentice, for app’lt; Edward C. Boardman, for resp’t.

       Affirming 46 St. Rep., 925.

   O’Brien, J.

The plaintiff, as treasurer of an association called the Hew York & Hew Jersey Sheep Brokers’ Association, sued to recover $10,000. stipulated as liquidated damages in a contract entered into between the association and the defendant. He was defeated in the action, and one of the questions presented is whether the contract is of such a character as to entitle the plaintiff to invoke the aid of the court for its enforcement.

The contract was executed, as appears from its date, on the 11th of April, 1887, and was to be operative from the first of January preceding. The parties who signed the agreement were brokers and dealers in sheep and lambs consigned to market in Hew York and vicinity.

The paper recites that the persons signing the same, of whom the defendant was one, had associated themselves together for the purpose of guarding and protecting their business interests from loss by unreasonable competition, and that they had agreed to pool and make a common fund of all commissions earned in the sale of sheep and lambs, excepting such as it was agreed should be paid to the “ Sheep & Lamb Butchers’ Benefit Association of the City of Hew York.” All the members of the association thus formed by the agreement then proceed to enter into various stipulations with each other. Those that are material to the question involved are as follows:

(1) That all members of the association thus formed and everyone subsequently admitted should keep a just and true account of the number of sheep and lambs sold by them or their firms, by correct entries to be made in a book to be kept for that purpose; that at the close of each week, or within two days thereafter, a written statement from the books was to be made by each member to the treasurer showing the full amount of sheep and lambs sold during the week, which statement the treasurer was to enter in a book to be kept by him and at the same time file the statement for reference.

(2) At the close of each month a settlement between the members was to be made, and the treasurer was to ascertain the total number of sheep and lambs sold, and the total sold by each member, and make a statement o£ the same, a copy of which, within two days thereafter, was to be delivered to each member, who :was, within three days thereafter, to pay to the treasurer eleven, and three-fourth cents per head for each and every sheep and lamb sold by him or his firm during the month as appeared from the treasurer’s statement. Then the treasurer was to distribute the fund between the members according to the percentage of the whole fixed by the agreement.

(3) All moneys which the treasurer was to receive from the butchers’ association above mentioned was to be divided between the members in the same way.

(4) For a violation of this agreement each member is to pay the treasurer $10,000, to be divided between the members in the-same way. It is alleged that the defendant carried out the agreement on his part until until about February 1, 1889, when he-refused to abide by it, and from that date wholly failed and re-. fused to render to the treasurer the account and statement provided for in the agreement.

On the 26th of December, 1886, the brokers’ association,, formed as above described and represented in this action by the plaintiff, and the butchers’ association, above mentioned and referred to in the agreement, entered into a mutual agreement with each other, to take effect at the same date as the one above described, to wit, January 1, 1887. This agreement recited that the brokers were engaged in selling and the butchers-in buying sheep and lambs for slaughter, and that it was for the interest of both that they should be closely connected in business, and should mutually aid and protect each other as therein-after set forth. The brokers bound themselves to keep correct books of account, showing the number of sheep and lambs sold by them on the market, and at the close of every month to render a full and true statement of all such sales to the secretary of the butchers’ association, and at the same time pay to said secretary three and one-fourth cents per head for each and every sheep and lamb sold. The brokers further agreed:

(1) Hot at any time during the term of the agreement to engage in or be directly or indirectly engaged in slaughtering sheep or lambs, except for export.

(2) Hot to sell any sheep or lambs to anyone else except the members of the butchers’ association, and if they did they were bound to pay the treasurer of the last-named association fifteen cents per head for the same. Any sales so made were to be reported every week and payment made on account thereof.

The butchers agreed to report to the brokers the names of all members of the association, including new members to be added from time to time ; that they would buy sheep and lambs from the brokers only, and if from any other parties, they would pay over to the brokers on account thereof fifteen cents per head, which purchases were to be reported to the brokers every week. These two papers must be read together, and thus considered they manifestly were intended for the purpose of creating a combination between the butchers engaged in buying and the brokers engaged in selling sheep and lambs, in order to control the market,, fix the price and destroy competition. The brokers were to sell only to the butchers, and the butchers to buy only from the brokers. The owners of sheep, or the drovers or consignees who had them for sale, and the public who were interested in the price of meat as an article of food, might have been prejudiced by the agreement. Whether they were in fact is not material.

The real purpose and intent of the agreement was to suppress competition in an article of food, and as such agreements tend to-enhance the price, they are regarded as detrimental to the public interest and forbidden by public policy. That such agreements are illegal and void has been settled by the decisions of the courts from the earliest times. These authorities are to be found in the learned opinion below, and upon the briefs of counsel in this-court, but I do not consider it necessary to refer to them further, or to discuss the question at length, for the reason that at this very term of the court the whole question has been examined, elaborately discussed and decided in another case. People v. Sheldon, Oct., 1893 ; S. C., 66 Hun, 590 ; 50 St. Rep., 231. Courts will not aid parties seeking to enforce such an agreement, Leonard v. Poole, 114 N. Y., 371; 23 St. Rep., 753, irrespective of the question, whether in fact it produced the evil results to which it tended or was harmless. It is said that the purpose was to facilitate the transaction of business and save useless expense. It is quite likely that the agreement did enable the parties to transact their business with less labor and expense, and that may be said of nearly all such combinations; but that circumstance cannot save them from condemnation when they tend to prejudice the public. The illegal character of the agreement appeared upon its face, and was a necessary legal conclusion from its provisions. It was doubtless the duty of the court to dispose of the case as presenting a question of law, but the illegal intent and purpose having been found by the jury, when the court was bound to declare it, the plaintiff is not injured by the ruling at the trial submitting the case to the jury on the question of the purpose and intent of the agreement. The right of the plaintiff to recover when no actual damages have been alleged or proven, and some other questions, are involved in the case, but it is unnecessary to consider them, as the illegal nature of the agreement sued upon is a fundamental objection to a recovery.

The judgment should be affirmed, with costs.

All concur; GrEAT. J., in result.


author: Maynard, J.

text:
    The Manhattan Life Insurance Company, App’lt, v. The Forty-Second & Grand Street Ferry R. R. Co., Resp't.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. COBPOBATIONS—LIABILITY FOB ACTS OF PBESIDENT.
    One Allen, who was president of defendant in 1888, procured a loan from plaintiff upon his individual note, and gave as collateral security therefor an assignment of an alleged certificate of defendant’s stock, some of the signatures to which he had forged. He had dated the stock 1881, at which time he was transfer agent, and had used a blank which had been signed by Green, who was president in 1881. Held, that Allen had no authority in 1881 to issue such certificate and defendant could not beheld liable for the misuse of a power which it never created.
    3. Same.
    When Allen made the loan and pledged the certificate he represented to plaintiff that it was a genuine certificate. Held, that when he negotiated the loan he was not engaged in the transaction of defendant’s business or in the discharge of any duty imposed upon him by the plaintiff, and therefore could not bind defendant by his representations.
    3. Same —Evidence.
    The certificate of stock was not admissible as evidence of the defendant’s liability.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered after trial at circuit.

      Artemas H. Holmes, for app’lt; Freling H. Smith, for resp’t.

       Aflirming 46 St. Rep., 130.

   Maynard, J.

In September, 1888, Eben S. Allen, the president of the defendant, a domestic railroad corporation, forged a ■certificate of 100 shares of its stock of the face value of $10,000, and pledged it as collateral security to the plaintiff for a personal loan of $6,500, which he then obtained. Default was made in the payment of the debt, and the plaintiff seeks to make the defendant liable for the amount of the loan, which is less in amount than the value of the stock, if it had been a genuine issue, and which represents the loss of the plaintiff by the fraud of the defendant’s president. The certificate bore date November 10, 1881. At that time John Green was president; Charles Curtiss treasurer, and Allen secretary and transfer agent of the defendant company.

The certificate was one of the printed or engraved forms used by the defendant, which had been cut from its blank certificate book in 1881, and signed in blank by Green, and left with the other officers of the company at a time when he was to be absent from the office for some months. It was intended for convenient use in case a stockholder desired to transfer his stock in the president’s absence, and to have a new certificate issued to the transferee. Allen obtained possession of it and kept it in his private drawer until 1888, when he filled up the blanks, dating it November 10, 1881, inserting his own name as stockholder, forging the name of Curtiss as treasurer, and signing his own name as transfer agent. Green ceased to be president in April, 1888, and at the same time Curtiss ceased to be treasurer. Allen was secretary and transfer agent from 1868 to April, 1888, and treasurer from 1883 to April, 1888, when he became president, and Ealph J. Jacobs became treasurer, and Charles P. Emmons secretary and transfer agent. When Allen issued the certificate in September, 1888, both Green and Curtiss were dead; and every name attached to it was, in a legal sense, forged. While the signatures of Green and Allen were genuine, they were not then the officers of the defendant which the certificate represented them to be, and the act of making and uttering the instrument was a forgery as to all the names written thereon, under §§ 519 and 522 of the Penal Code.

It is thus very plain that as president, in 1888, Allen had no authority, either actual or apparent, to issue the certificate of stock upon which this action is brought. The company had not invested him with any power as its then president to participate in the creation of certificates bearing date seven years previous. The authority which he possessed in 1881, as secretary and transfer agent, had then ceased to exist; and no state of circumstances has heen suggested, or can be conceived, under which he was empowered to countersign the certificate as transfer agent in 1888, and antedate it as of the time when he held that office.

The rule which imposes a liability upon the principal for the unauthorized acts of his agent is founded upon public policy, and is well defined. It is limited to cases where there was an apparent authority to do the act in question, and it appeared to have been done in the course of his employment as agent and was within the scope of his general powers. Hone of these grounds of liability have been shown here. The agency did not exist in 1888, which was necessary in order to deprive the principal of the right to disclaim responsibility for the unauthorized act. With respect to the creation of certificates bearing date in 1881 he was as destitute of authority as if he had been a stranger to the corporation. He not only could not issue them, but he could take no part in their issue, or do any act required by law, or by the bylaws, essential to give them validity. When he issued such a certificate in his own name, he was not apparently acting within the scope of any general authority conferred upon him by the corporation. The defendant cannot justly be held liable for the misuse of a power which it never created.

The case has no feature in common with the Fifth Avenue Bank against the same defendant, 137 N. Y., 231; 50 St. Rep., 712 There Allen, at a time when he was treasurer and transfer agent, rand invested with authority in both capacities to sign, countersign ■and seal valid certificates of stock, forged the name of the president to a certificate and issued it to a confederate, who negotiated a loan upon it at the bank, which, before receiving it, caused inquiry to be made at the office of the defendant, and was informed that the certificate was genuine. Allen was there acting within the •scope of his apparent authority, and whether the certificate had been actually signed by the president and was issued in the regular course of the administration of the affairs of the company were facts peculiarly within his knowledge, and the countersigning and issue of the certificate in due form was a representation by him that these conditions had been complied with, and that the facts existed upon which his right to act depended. Here there was a total lack of delegated power to Allen to do a single lawful act in the issue of the certificate in the form in which it was presented to the plaintiff.

There was no negligent or wrongful use by him of any authority derived from the defendant. It was a willful and criminal act,, perpetrated for private gain, and not connected with the exercise-of any official authority or semblance of authority which he possessed as the defendant’s agent.

The plaintiff insists that there is another ground upon which a recovery is permissible. When Allen made the loan and pledged the forged certificate, he represented to the plaintiff that it was a genuine certificate of the stock of the corporation; and as he was-then its president and chief administrative officer, the claim is made that the defendant is bound by his representations.

This question in its general bearings was discussed at great length by the counsel in the Fifth Avenue Bank case, but we refrained from considering or deciding it because not necessary to the decision of the case, and we do not think that it is involved in the present appeal. Allen, when he negotiated the loan, was not. engaged in the transaction of the defendant’s business, or in the discharge of any duty imposed upon him by the defendant. The declarations of an agent are only admissible against his principal when made as a part of a transaction undertaken in behalf of the principal, or in the performance of the duties of his agency. First Nat. Bk. of Lyons v. Ocean Nat. Bk., 60 N. Y., 278. Or, as is sometimes stated, the representations of the agent, when not expressly authorized by the principal, must, in order to bind him, be within the scope of his agency, which is but another form of expressing the same proposition. N. Y. Life Ins. Co. v. Beebe, 7 N. Y., 364. But, without determining what are the duties of the-officers of a corporation when called upon to respond to the inquiries of intending purchasers of the stock, there is sufficient reason why the plaintiff cannot avail himself of the representations of Allen in regard to the genuineness of this certificate. They were-made in a private and personal transaction, undertaken for his individual benefit, and so understood by the plaintiff.

The plaintiff knew that Allen, in the negotiation of the loan, was not acting as the officer or agent of the defendant, or in its behalf, and that his personal interest in the transaction might lead him to betray his principal. It is an old doctrine, from which there has never been any departure, that an agent cannot bind his principal, even in matters touching his agency, where he is known to be acting for himself, or to have an adverse interest. Stone v. Hayes, 3 Denio, 575 ; Bentley v. Columbia Ins. Co., 17 N. Y., 423; Claflin v. Farmers & Citizens' Bank, 25 id., 293; Wilson v. M. E. R. R. Co., 120 id., 145; 30 St. Rep., 787; Moores v. Citizens' Nat. Bank, 111 U. S., 156; Farrington v. South Boston R. R. Co., 150 Mass., 406.

The plaintiff in such a case assumes the risk of the agent’s disloyalty to his trust, and has no occasion for surprise when he discovers that the agent has served himself more faithfully than his principal.

The learned trial judge correctly decided when he held that, under the proofs, the certificate of stock was not admissible as evidence of the defendant’s liability, and dismissed the ■complaint, and the judgment and order appealed from must be affirmed, with costs.

All concur.


author: Mayham, P. J.

text:
    David Bloom, Resp’t, v. Aaron D. Huyck, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 15, 1893.)

    1. Summary proceedings—Pleading.
    The only answer in summary proceedings authorized by the. statute is one denying the allegations of the petition; an allegation seting up payment in full is unnecessary and surplusage, and may be disregarded.
    3. Same.
    The answer in summary proceedings denied that the defendant was indebted to the petitioner in any sum for rent, and further alleged that he had paid the rent in full. The justice ordered defendant to furnish a bill of particulars of the amounts paid, and in default thereof denied his application for a jury trial and rendered judgment against him. Held, error.
    Appeal from a judgment of the county court of Greene county, affirming a judgment of a justice’s court of that county, in a summary proceeding to remove a tenant.

      A. C. Griswold, for app’lt; E. Palmer, for resp’t.
   Mayham, P. J.

On the 13th of April, 1892, the respondent filed his petition, duly verified, with Henry D. Shores, justice of the peace, alleging among other things that he,-the petitioner, as landlord, rented certain premises to Aaron D. Huyck, the appellant, who took possession of the premises under a stipulated rent per month, about the 10th of April, 1891, and that the said Aaron D. Huyck was at the date of said petition indebted to the petitioner in the sum of $9 for rent; that he duly caused to be served on the defendant Huyck a notice in writing on the 6th day of April, 1892, requiring in the alternative the payment of the rent or the possession of the premises; that the rent or any part of it had not been paid and that the defendant Huyck was holding over and continuing in possession after a default in the payment of the rent, without the consent of the petitioner. On presentation and proof of service and demand for the rent alleged to be due, the justice issued his precept, requiring defendant Huyck forthwith to remove from the premises, or show cause before the justice on the 16th day of April, 1892, why the possession of the premises should not be delivered to the petitioner.

At the time fixed in the notice or order to show cause the defendant Huyck appeared before the justice and filed his answer, duly verified, which answer is in the following form:

“ Aaron D. Huyck for answer to the petition in the above entitled proceedings, dated the 13th day of April, 1892, denies that he is indebted to the said David Bloom in the sum of nine dollars for the month of April, 1892, or in any sum for rent during the year ending May 1, 1892.
“ The said Aaron D. Huyck had fully paid the rent of said premises for the term of the lease and asks judgment of this court that the proceedings be dismissed, with costs against the petitioner.’'

To this answer the petitioner interposed a demurrer, which demurrer was overruled. The petitioner thereupon demanded, before a venire was issued, a bill of items or particulars of the amounts paid by defendant, as set forth in the answer ; and the justice thereupon ordered the defendant to furnish such bill of particulars. To this rule and order this defendant excepted and refused to furnish the bill of particulars asked for by the plaintiff.

The defendant thereupon asked for a jury, and tendered to the justice the amount fixed by the justice as the costs of a jury.

The court refused to draw a jury until a bill of particulars as ordered was furnished. No bill of particulars being furnished by the defendant, the plaintiff immediately moved for a warrant to dispossess the defendant, Huyck, from the premises described in the petition. The defendant objected to any further proceedings until a jury was drawn and the matter tried.

The objection of the defendant was overruled, and the plaintiff’s motion was granted, and a judgment entered against the defendant directing a warrant to be issued against him for the delivery to the plaintiff of the possession of the premises described in the petition, with $2.82 costs against the defendant.

From this judgment the defendant appealed to the county court, where the judgment of the justice was affirmed with costs, from W'hich judgment of affirmance the appellant, Huyck, appeals to this court.

The question involved in this case is whether the justice could legally ignore the issue made by the defendant by his denial of the allegations of the petition, and could proceed summarily after a jury was demanded by the defendant, and the fees and expense tendered, and enter a judgment of eviction and issue his warrant against the defendant under his objection.

Section 2244 of the Code of Civil Procedure provides as follows : “At the time when the precept is returnable, without waiting as prescribed in an action before a justice of the peace, or in a district court in the city of New York, the person to whom it is directed, or his landlord, or any person in possession, or claiming possession of the premises, or any part thereof, may file with the judge or justice who issued the precept, or with the clerk of the court, a written answer, verified in like manner as verified answers in actions in the supreme court, denying generally the allegations, or specifically any material allegations of the petition.”

This is the only answer or pleading the statute authorizes the defendant to interpose in summary proceedings to recover possession of land. That portion of the answer, therefore, which sets up payment was unnecessary and surplusage, and doubtless would on demurrer to that part of the answer have been adjudged bad.

The only questions which could possibly be raised by the an. swer are those which directly put in issue by denial the allegations of the petitioner. These summary proceedings before a judge or justice of the peace, for the recovery of the possession of lands, are unlike proceedings in ordinary actions triable in justice court. An issue by the service of an answer containing a denial of the allegations in the petition presents the only question that can be tried before the judge or justice.

The trial of that issue differs in some essential particulars from an issue ordinarily tried in justice court.

Section 2247 of the Code of Civil Procedure authorizes the justice, where no jury is called, to hear and determine the issue thus presented ; but the defendant, by that section, is authorized on tendering or paying the proper amount of fees and costs of obtaining a jury to demand a trial by jury.

In such case the justice is required to issue his precept, directing that twelve persons nominated by him, and qualified to serve as jurors in courts of record, shall be summoned for the purpose of trying the matter in difference.

This provision of law differs also from the ordinary method of securing a jury to try actions in justice court.

The whole proceedings are purely statutory, and must, we think, be conducted strictly within the statutory provisions in order to be upheld. No power is conferred upon the justice todis-regard a verified answer denying the allegations of the petitioner, and no authority is conferred upon him, either to strike out that answer, or to proceed and hear and determine the questions in issue by the answer without a jury where a jury has been demanded and the fee paid.

The only answer that the court could recognize in this proceeding was a denial. Barnum et al. v. Fitzpatrick, 42 St. Rep., 184; Code of Civil Procedure, § 2244. That denial was interposed in this case, and was not waived or withdrawn, and upon the interposition of that denial the defendant demanded a jury. No discretion is vested in the magistrate to disregard or strike out that answer.

The answer therefore stood, presenting an issue in this case; was not waived, withdrawn, or stricken out, at the time the judgment or warrant of eviction was issued.

It is insisted by the respondent that although § 531 of the Code, which provides for furnishing a bill of particulars, in terms furnishes no other penalty for the refusal to serve a bill of particulars where required than that of depriving the party so refusing from giving evidence as to the subject upon which such bill of particulars is demanded, yet the court has inherent power to strike out the entire pleading as a punishment for such refusal.

And we are referred to the case of Gross v. Clark, 87 N. Y., 272, in support of that contention. That was an ordinary action in the supreme court, and an order was made by the court requiring the plaintiff to serve a bill of particulars before answer. That order was disregarded by the plaintiff and a motion made by the defendant to compel obedience to that order; the court as a penalty for that disobedience struck out the plaintiff’s complaint, invoking the common law powers which are vested in a court of general jurisdiction.

No such extraordinary power is lodged in a court of limited, qualified, or statutory jurisdiction.

If a bill of particulars could properly be demanded in a case like the one at bar, and was refused, the only penalty that a magistrate of limited jurisdiction could inflict for such refusal would be the penalty expressly provided by statute, to wit: that of ■depriving the defendant from giving evidence of the facts as to which such bill of particulars was refused; but if it could be held that Gross v. Clarke, supra, is an authority in this case, still the power of striking out the pleading was not to be exercised in this case, and the pleading remained upon the record, presenting a full and complete issue, by denial of all the allegations of the petition.

There was, therefore, an issue upon the record which could not be properly disposed of except by trial, and that trial before a jury such as is provided for in § 2244 of the Code.

If it be said that that trial would be unavailing to the defendant for the reason that he would be deprived of giving affirmative evidence of facts not specified in a bill of particulars, still, we think it would require the plaintiff to prove his case before the jury and afford the defendant all the advantage of a trial in the examination of the plaintiff’s witnesses, and in having a jury pass upon the truth of the allegations of the plaintiff’s petition.

Of such a right he could not, we think, be summarily deprived by the justice.

This conclusion is not in conflict with the case of Klocle v. Brennan, 35 St. Bep., 745. That was an action in the supreme court in which a bill of particulars might properly be demanded under § 531 of Code of Civil Procedure, and the principal question disposed of in that case was : “ Whether the party demanding a bill of particulars had been guilty of such laches as would render an order directing a bill of particulars improper, ” and it was held that a bill of particulars under the circumstances of that case wa s properly awarded and sustained within the discretion of the court Nor is it in conflict with the case of the Durant Land Improvement Co. v. East River Electric Co., 17 Civ. Pro., 224; 25 St. Rep., 928. None of the questions which we have discussed in this case arose in either of those cases.

The case of the People v. Loomis, 27 Hun, 328, cited by the learned counsel for the respondent, holds that summary proceedings instituted before a justice are governed, except as otherwise prescribed by statute, by the ordinary rules governing trials in justice courts.

As we have seen, the statute prescribes rules in summary proceedings inconsistent with the course pursued by the trial justice in this case, in that it directs the summoning of and trial by a jury where the allegations of the petition are denied in the answer and a jury is demanded.

Goff v. Vedder, 12 Civ. Pro., 358, is not in conflict with this doctrine, but seems to be in harmony with this conclusion.

We are, therefore, of the opinion that the justice erred in disregarding the defendant’s answer, denying his application for a trial by jury, and that the order or judgment rendered by him was for that reason erroneous, and that the judgment of the county •court affirming the judgment of the justice must for that reason be reversed.

Judgment reversed, with costs.

Putnam and Herrick, JJ., concur.


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    Dennison I. Dodge, Resp’t, v. Aaron Eckert, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 15, 1893.)

    Pleading—Contract.
    The complaint alleged a sale of goods to defendant which had not been paid for, and that defendant obtained credit therefor by false and fraudulent representations. On the trial the sale was proved, but there was no proof that the representations were untrue. Held, that a refusal to non-suit was proper; that the complaint stated a cause of action on contract, and that the portion which charged fraud might properly be rejected by the court as surplusage.
    Appeal from a judgment of the Sullivan county court, affirming a judgment of a justice of the peace in favor of the plaintiff.

      Henry J. Williams, for app’lt; J. M. Maybee, for resp’t.
   Mayham, P. J.

This action was prosecuted in justice court upon a complaint which alleged: “That within two years'last past, before the commencement of this action, he (plaintiff) sold and delivered to the defendant goods, wares and merchandise to the value of $70, for which the defendant has never paid; that the defendant obtained credit for said goods by false and fraudulent representation as to his means and ability to pay, which representation was made with intent to defraud the plaintiff, ■and demands judgment for $70 and costs.”

The answer is first, a denial, and second, a set-off and counterclaim.

Upon the trial the plaintiff proved the sale of the goods to the value of $68.10, and at the time of the purchase of the goods by the defendant he represented that one Williams was owing him for work, and that he expected his pay from Williams on a given day, and he would then pay plaintiff for the goods. The plaintiff failed to prove that the representation that Williams owed defendant was untrue, and it appeared on the cross-examination of plaintiff’s witnesses that Williams did in fact owe defendant.

The defendant failed to prove any offset or counterclaim.

At the conclusion of the trial the defendant moved to non-suit the plaintiff on the ground that the plaintiff’s complaint sounded in tort; that there was no evidence of fraud on the part of the •defendant, and no proof that the statements and representations made by the defendant at the time of the purchase of the goods were not true.

The justice refused to non-suit, and rendered judgment for the value of the goods, and from that judgment the appeal was taken.

The only question in this case important to consider is whether the complaint sounded solely in tort, and the action was prosecuted under the complaint for the tort, and not upon the contract or purchase.

If this action had been prosecuted solely for the tort without any allegation of a contract from which an obligation on the part of the defendant to pay could be legally inferred, then it would be necessary for the plaintiff, before he could recover, to prove the-wrong, as the wrong in that event would be the gravamen of the action; but where the complaint contains an allegation of a cause of action in contract not sounding in tort, although it may also charge tortious acts on the part of the defendant, the plaintiff will be allowed to recover upon the allegation of his complaint resting in contract, and the allegations of wrong in the complaint may be treated as surplusage. Under the liberal practice of pleading adopted by the Code, especially in courts of justice of the peace, pleadings are construed liberally with a view to the promotion of substantial justice between the parties. “In pleading under the Code, it is sufficient to state facts from which the law infers a liability or implies a promise." Zabriskie v. Smith, 13 N. Y., 330.

Although facts are stated in a pleading which are unnecessary to be proved to constitute a cause of action or defense, they may be disregarded upon the trial. Bedell v. Carll, 33 N. Y., 581.

A complaint containing a statement of facts constituting a cause of action on contract, sustained by proof of such facts upon the trial, authorizes a recovery, although the complaint is in form for a conversion. Conaughty v. Nichols, 42 N. Y., 83.

We are, therefore, of the opinion that the justice was right in refusing to nonsuit the plaintiff in this case; that the complaint stated a cause of action on contract, and that that portion of the complaint which charged fraud might properly be rejected by the court as surplusage and that the judgment rendered in such a case is a judgment on contract, upon which the party could not be arrested on final process.

Judgment of the county court and that of the justice court affirmed, with costs.

Putnam and Herrick, JJ., concur.


text:
    John C. Durr, App’lt, v. The Village of Green Island, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 15, 1893.)

    Municipal corporations—Nb«liqence.
    Plaintiff was injured by falling upon a slippery sidewalk in the defendant village. It appeared that during the previous month snow and ice had been allowed to accumulate and was not removed by the village; that two days before the accident a storm of snow and sleet covered the sidewalks of the village and rendered them generally slippery, and that the temperature continued below freezing. Éeld, that as_ it appeared that the injury resulted from one of two causes, for one of which the village would be liable and for the other it would be exempt, in the absence of proof as to which produced the injury, a nonsuit was proper.

      Appeal from a judgment entered upon the decision of a judge at circuit, dismissing the complaint

      Doyle & Fitts (Charles F. Doyle, of counsel), for app’lt; Smith & Wellington (George B. Wellington, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff brought this action for an alleged injury resulting to him from a fall on the sidewalk in the village of defendant, which fall plaintiff alleged he suffered by reason of the defendant’s negligence in suffering ice to accumulate thereon.

The evidence shows that during a portion of the month of November, and down to the last of that month, snow and ice had accumulated on the sidewalk on Pine street, in that village, and had not been removed by the village authorities; and that the same was about six inches in depth at that time; and that by reason of pedestrians passing over it it had at times when the temperature was high become soft and marked by foot-prints so as to present a rough and uneven surface, and in that condition had frozen.

Upon the 1st or 2nd of December following there was a precipitation of snow and sleet covering the entire surface of the sidewalk and rendering the sidewalks in the village of Green Island generally slippery. From that time until the 4th of December the temperature had been constantly below freezing point, ranging from nineteen degrees down to eight degrees above zero.

On the night of the 4th of December the plaintiff, while passing along and over the sidewalk on Pine street, stumbled or slipped from the icy portion of the sidewalk and fell and was seriously injured. For this injury he brings this action.

On the trial the plaintiff was non-suited on the ground that it was apparent from the evidence that the injury resulted from one of two causes, for one of which the defendant would be liable, and for the other the defendant would be exempt from liability.

We think the learned judge was right in his determination and that his decision must be upheld upon the evidence. It is, we should think, clear that the village of Green Island was negligent in allowing snow and ice to accumulate upon the sidewalk, as the evidence showed it to have done, without any effort on the part of the defendant to remove it during the month of November.

The testimony discloses that the temperature was sufficiently mild to soften the ice and snow on the sidewalk during that month, and thus rendering it reasonably possible for the village to have removed the accumulation, and. if this action had been prosecuted for injuries occuring before the precipitation of snow and sleet on the 2nd of December, it is quite probable that legal negligence might have been established against the defendant which would authorize a recovery, but the precipitation of sleet and snow on the 1st and 2nd of December, followed by a severe freezing condition of temperature and producing a general icy and slippery condition of the sidewalk of the entire village, makes it uncertain whether the injury resulted from this latter condition or from the condition existing on the last of November.

If the icy condition produced by the sleet and snow on the 1st and 2d of December produced the injury, then clearly within the decision of Taylor v. City of Yonkers, 105 N. Y., 208-9 ; 7 St. Rep., 332, there would have existed two causes, for one of which the defendant would be liable, and for the other of which it would not be liable, and the jury could not properly be permitted to speculate as to which of the two causes produced the injury.

In such a case the plaintiff must fail if his evidence does not show that the damage was produced by the former cause.” Searles v. Manhattan R. Co., 101 N. Y., 661.

This the plaintiff did not show by his evidence.

The judge was therefore right in refusing to allow the jury to speculate as to which of the two alleged causes produced the injury. Taylor v. City of Yonkers, supra; Kaveny v. City of Troy, 108 N. Y., 576-577; 14 St. Rep., 18; Tobey v. City of Hudson, 17 St. Rep., 454.

We think within these authorities the plaintiff failed to establish negligence on the part of the defendant for which it can be held liable and that the judgment should be affirmed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.