author:
Parker, J.
      Haight, J. (dissenting).

text:
    The Elmira Iron & Steel Rolling Mill Co., App’lt, v. Nathaniel C. Harris, Impl’d, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 22, 1891.)

    1. Partnership—Notice oe withdrawal op partner.
    A partner can only relieve himself from liability for subsequent transactions had with his former partners in the partnership name by giving notice of his withdrawal; such a notice published in a local paper only afiects those who deal with the firm for the first time after the withdrawal.
    2. Same—Dormant partner need not give notice.
    A dormant partner need not give notice, because his connection with the firm not having been known, it cannot have contributed in any degree towards establishing the credit of the firm, and his withdrawal could not take away a single elemennt which helped to build up the business reputation and credit of the partnership.
    3. Same—" & Co.”
    The words “ & Co.” indicate an agency, and that a principal or principals are undisclosed, and, if credit is given, the law presumes that it was given to all the principals.
    4. Same.
    The firm of Blood & Co. was formed January 1, 1862, under a written agreement that each of the Bloods was to give his entire time and attention to the business, and be paid §600 per annum, while Harris was to “be consulted in the business and all plans and operations of the firm * * and to have and receive $100 per year for his services “for the care and assistance which he may render to the firm without giving his personal attention to the business.” On the 25th day of October, 1869, Hams withdrew, and a notice was published in the local paper; hut such publication or notice did not come to the knowledge of the plaintiff, who had had dealings with the firm prior to Harris’ withdrawal. Held, that Harris was not a dormant partner, and was liable to plaintiffs as a partner; and that the notice could only affect those who should deal with the firm for the first time after the withdrawal.
    (Haiqht, J., dissents.)
    Appeal from a judgment of the general term of the supreme court, fourth department, entered on an order affirming a judgment in favor of the defendant Harris, entered upon the'verdict of a jury at circuit.
    The action is brought to recover upon liabilities of the firm of Blood & Co., originally composed of the defendants.
    The defendant Harris alone defends, and upon the ground that several years prior to the transactions upon which this action is founded he had withdrawn from the firm.
    It appears that the plaintiff had had dealings with Blood & Co., prior to Harris’ withdrawal, and that notice of such withdrawal was not given to the plaintiff. But the defendant insists that he was a dormant partner and therefore not bound to give notice of his retirement from the firm to those with whom the firm had. dealt prior thereto in order to relieve himself from liability for an indebtedness subsequently incurred by those who continued to-carry on the business under the same firm name.
    On the first day of January, 1862, JohnP. Blood, Samuel N. Blood and the defendant, Nathaniel C. Harris, entered into an agreement in writing, the material parts of which are as follows: “ The said parties have this day entered into a co-partnership, and by these presents do agree to become co-partners in the foundry, machine shop business, and in all things thereto belonging, and also in buying and selling, building and retailing all sorts of ware,, goods and commodities belonging to the foundry and machine shop business, and in the manufactory of all implements of husbandry,, and in general, all business which has heretofore been carried on by said Blood, and to continue for the term of ten years from the date hereof, if the said parties shall agree in their business. * * * And it is further agreed and understood by and between the parties that the said John P. Blood and Samuel N. Blood are to give their entire personal attention to the management of the business, which is to be located and carried on in the boro’ of Athens, at such place as shall be agreed upon by the parties, and said John P. Blood and S. N. Blood shall have $600 each year for their services in managing the business as aforesaid, to be drawn from the company’s fund, and neither partner shall have the right to draw any further sum without the written consent of the other parties.
    “ The said J. P. and S. N. Blood agree to give their whole time to the business, and to keep an accurate book or books, with entries of all matters of business belonging to the firm, which shall be accessible to both the parties at all times and for all purposes. * * * And said N. C. Harris shall be consulted in the business, and all the plans and operations of the firm shall be made and done with the advice of the firm; and the said H. C. Harris to have and receive from the firm $100 per year for his services for the care and assistance which he may render to the firm, without giving his personal attention to the business.”
    Thereafter and until about October 25, 1869, pursuant to such agreement, the parties thereto conducted business under the firm name of Blood & Có. On the day last named, Harris withdrew from the firm, and a notice of the dissolution was published in one issue of a local paper, but such publication did not come to the knowledge of the plaintiff, and notice thereof was not given nor attempted to be given to the plaintiff otherwise than by such publication. Thereafter the Bloods, together with Gf. M. Angier, under the same firm name, continued the business without interruption until March 21, 1876, when they made a general assignment for the benefit of their creditors. Angier worked in the manufactory as a shop-hand from the formation of the firm in 1862 down to the date of the general assignment, and during all this time there was no change either in the firm name, signs, or general aspect of affairs. Whilst Harris was a member of the firm he was engaged in other business, and took no part in the making of purchases or sales for the firm. He paid some attention to the financial part of the business, and had some correspondence with creditors of the firm, both in the name of the firm and his own. He testified that at the time he entered into the partnership it was said that it should not be made public, “ shouldn’t be talked about at all,” and evidence was introduced in his behalf tending to show that it was not generally understood that he was. John P. Blood testified that it was known by quite a number that Mr. Harris was a member of the firm, and that all persons dealing with the firm who asked him were told that Mr. Harris was a member; that he could not tell how many he told; that they told the parties interested in the concern to know who the partners were, and that it was customary for the firm to tell who were the members of the firm to those dealing with it, if they asked.
    Samuel N. Blood testified that the connection of Harris with the firm was not kept secret by him at all, and that he talked of it generally whenever the question came up. It appears that the plaintiff did not know until after its dealings with the firm of Blood & Go. were at an end that Harris was a member of the firm. The plaintiff’s president testified that no inquiry was made as “to who constituted the firm of Blood & Co. * * * We thought the credit of Blood & Co. when we first commenced dealing with them was good; we inquired and ascertained that the credit of the firm was good.” The court submitted to the jury the question whether Harris was an ostensible or dormant partner, with instructions that if they should find that under the evidence he was a dormant partner, then the defendant was entitled to a verdict; otherwise, that the plaintiff was entitled to recover. The result was a verdict in favor of the defendant.

      Other facts appear in the opinion.

      Frederick Collin, for app’lt; J. A. Gibson, for resp’t.

       Reversing 44 Hun, 626 mem.

   Parker, J.

J.—The question to be determined is presented by an exception taken to the refusal of the court to direct a verdict in favor of the plaintiff.

The plaintiff insisted that it was the duty of the court to determine, as a matter of law, that the defendant while a member of the firm of Blood & Co. was an ostensible partner. The trial court held otherwise, and submitted to the jury the question whether Harris was an ostensible or dormant partner, with the further instruction that if they should find that he was a dormant partner, then the defendant was entitled to a verdict.

Mow, it is the general rule that a partner can only relieve himself from liability for subsequent transactions had with his former partners in the partnership name by giving notice of his withdrawal. Austin v. Holland, 69 N. Y, 571; Howell v. Adams, 68 id., 314; Elkinton v. Booth, 143 Mass., 479. The rule is founded upon the principle governing the liability of a principal for the acts of his agent where an agent has once represented his principal; if the principal would avoid responsibility for his acts in the direction of his original authority after the agency has ceased, it is incumbent upon him to notify those with whom he has dealt that such relation no longer continues. And a partner in dealing with third parties in behalf of the partnership not only acts for himself but as agent for each of the other members of the firm. So that when a partner withdraws from a firm it is his duty to give notice of that fact in order that it may be understood that his former partners have no longer any right to represent him. And if he fail to discharge that obligation he cannot thereafter avoid liability for an indebtedness incurred in the partnership name to a party unaware of the changed situation.

It appears that a notice of dissolution was, at the time, published in a local paper, but that could only affect those who should deal with the firm for the first time after the withdrawal. It did not operate as a notice to the plaintiff, with whom the firm had had business relations prior thereto. As to it actual notice could alone suffice. It was not given, and, therefore, defendant is chargeable with the indebtedness sought to be recovered, unless he is entitled to the protection of the one exception to the rule continuing the liability of partners after dissolution who fail to give notice. A dormant partner need not give notice, and the jury have been permitted to find that such was Harris’ relation to the firm of Blood & Co Whether rightly, we must now consider. The first step in that direction is to ascertain what is meant by the term “dormant partner.” Bouvier defines “dormant ” as sleeping; silent; not known; not acting. “ A dormant partner ” (says Oollyer in his work on Partnership, 6 ed., p. 11) “ is he whose name and transactions as a partner are professedly concealed from the world, * * * is one who shares in the profits of a Business but is not known as a member of the firm.”

A dormant partner is one “ taking no part in the management •of the partnership.” Lindley on Part., 16.

“We think, however, the word implies both the quality of secrecy and inactivity.” Pars, on Part., 33.

In National Bank v. Thomas, 47 N. Y., 15, 19, the court said: “A dormant partner is one who takes no part in the business and whose connection with the business is unknown. Both secrecy and inactivity are implied by the word.” As the court cited North v. Bloss, 30 N. Y, 374, as well as other authorities in support of the definition given, it is clear that it did not understand or intend that the North case should have the effect of altering a rule which had been long settled as asserted by it. It follows that one occupying such a relation to a partnership need not give notice, because his connection with the firm not having been known it cannot have contributed in any degree towards establishing the credit of the firm, and consequently his withdrawal could not take away a single element which helped to build up the business reputation and credit of the partnership. Such we deem the rule and it should not be extended. Credit is a matter of such importance in the mercantile world, and the financial standing of any partner may through various sources be so readily commingled with that of his firm, that it is essential that he should be required to take the precaution of giving notice of withdrawal unless it clearly appears that his connection with the firm did not add to its reputation for responsibility. »

It is not attempted here to establish a partnership liability against Harris on the ground of estoppel, which would have burdened the plaintiff with the necessity of establishing that he held himself, or knowingly permitted another to hold him out as a partner; that the plaintiff had knowledge of such holding out, and was induced thereby to create the debt, and the authorities applicable to such a situation, of which Thompson v. First National Bank of Toledo, 111 U. S., 529, is a type, need not be considered.

The written agreement entered into between the Bloods and Harris made the parties actual partners. It neither limited the liabilities or the agency of either. It did not suggest that Harris’ •connection with the firm should be kept secret. It did not provide that Harris should, as to its business, be wholly inactive. It required each of the Bloods to give his entire time and attention to the business, for which each was to be paid $600 per annum. While as to Harris, who was engaged in other business, it was agreed that he should “ be consulted in the business and all plans and operation of the firm shall be made and done with the advice of the firm, and the said IST. C. Harris is to have and receive from the firm $100 per year for his services for the care and assistance which he may render to the firm, without giving his personal attention to the business.”

The agreement, therefore, does not indicate that it was the intention of the parties that Hams should be a secret partner, sharing in the profits as a reward for his contribution to the capital without contributing in any other manner to the standing and business of the firm. Neither was he in fact inactive during the seven years that elapsed before his withdrawal. While he did not engage in the purchase of material or the sale of manufactured articles, he did take part to some extent in the financial management of the partnership, and in the settlement of controversies, in which he wrote letters over his own signature as well as that of the firm. During some portions of the partnership period he was frequently about the shops, at times nearly every day, looking over the work, and occasionally speaking to the-different foremen about it.

Neither did his partners keep secret the fact of his connection with the firm.

John 0. Blood testified: “ I presume it was known by quite a number that Mr. Harris was a member of the firm of Blood & Co.; if a person asked me who had a right to know, I told them ; those who had a right to know were the men dealing with us, and the men who were dealing with us who asked me were told that Mr. Harris was a member of the firm; I couldn’t tell you how many I did tell.”

Samuel N. Blood testified: “ Q. Was his connection with the firm kept secret by you, or anybody else, to your knowledge? A. It was not by me at all.

“ Q. Did you tell persons inquiring that he was a member of the firm? A. I did, sir.

“ Q. And talked of it with persons doing business with you generally ? A. I did, sir, whenever the question came up.”

Again, the adoption of the firm name of Blood & Co. is in opposition to the claim of dormancy on the part of Harris. A dormant partner is one who becomes such by a secret amagement, while his associates are held out to tho worM as sol© proprietors and managers of the business. Beechm w* Musht 45' Mich.. 188-203. _ _ ‘

_ _ If the business had been carried on «afe fee fens name of Blood & Blood, or Blood Bros., then the Bloods wcraM have been held out as comprising the entire firm. Blit fee words “ & Co. ” indicate an agency and that a principal or principals are undisclosed, and if credit is given the law presumes that it was given to all the principals.

In Shamburg v. Ruggles, 83 Pa. St., 148, the court say: “If A. , B. & C. enter into articles of association and agree that the business shall be conducted by A., and in his name alone, B. & C. in such case are dormant partners, and though liable for the debts and obligations of the firm during its continuance, are not so liable for debts after its dissolution, although notice of such dissolution may not have been given "to the public or those previously dealing with it, for it is to be presumed that credit was given upon the responsibility of A. alone, and not upon that of B. & C. If, however, the business be conducted in the name of A. & Co., a different presumption arises, for then it is supposed that credit is given not to A. alone, but to all those composing the company; in other words, to the firm and not to any one individual of it. In such case, if B. & C. retire, notice must be given to those dealing with the firm, or he will continue to be liable for the debts thereof subsequently contracted with former creditors who may be ignorant of the dissolution.” To the same effect is the reasoning of the court in De Ford & Co. v. Reynolds, 36 Pa. St., 325; Podrasnik v. Martin, 25 Ill. App. Ct. (111) 300; Deering v. Flanders, 49 N. H., 225; Clark v. Fletcher, 96 Pa. St., 416.

notwithstanding the terms of the agreement of partnership, the adoption of a firm name which did not exclude the defendant, the announcement by each of the Bloods to those making inquiries and having dealings with the firm that Harris was one of the part ners, and the further fact that he, to some extent, participated in the settlement of accounts and the financial management of the business, facts which, standing alone, determine that Harris’ status in the firm was that of an ostensible partner, it is insisted that other evidence presented on the part of the defendant authorized a submission to the jury of the question whether he was a dormant partner.

The evidence relied on in support of such position was, 1, that it was said at the time of the formation of the partnership that it should not be made public, “ should not be talked about at all.” 2. The testimony of a number of witnesses residing in that locality, some of whom had had dealings with the firm of Blood & Co., to the effect that they did not know that Harris was a partner.

This evidence, it is. asserted, tended to show that his relation to the firm of Blood & Co. was not generally known. It may be observed in passing that one of the Bloods denied that there was any understanding at the time of the formation of the partnership that the fact of Harris’ membership should not be talked about, and evidence was adduced on the part of the plaintiff for the purpose of showing that it was quite generally known in the community that Harris was a member of the firm.

For the purpose of this review, however, the plaintiff’s answering evidence cannot be considered, as we are to determine whether the defendant’s evidence was of such a character as to authorize a jury to find that he was a dormant partner, notwithstanding the facts which if standing alone we have asserted require a holding that he was in law an ostensible partner.

The agreement of partnership was reduced to writing. It does not in any manner suggest that the membership of Harris was to be kept from the public. It purports to embrace the entire agreement and the defendant has not attempted to show that in reducing the agreement of the parties to writing anything was omitted by mistake or otherwise which had been agreed upon. It is not asserted that this so-called understanding was made a part of the original contract. It is not pretended that the parties made a subsequent agreement founded upon a new consideration. It does not clearly appear that the matter was spoken of in the presence of all the parties, much less assented to, for Samuel 1ST. Blood says he does not remember any such thing and was not a party to any such agreement, and Harris’ evidence does not necessarily include him. Harris’testimony on that subject and the whole of it is comprised in an answer to a single question. Q. Now you may tell me at the time you entered into this partnership was there anything said between you as to whether this should be made public? A. There was, sir; it was not to be talked about at all.” It is, we think, clear that this evidence cannot be permitted to effect a change in the legal relation which the parties assumed in writing and by subsequent conduct.

Neither can a general partner, who, in order to relieve himself from a liability which attaches to an ostensible partner, assumes the burden of proving that he was a dormant partner, be deemed to have so well borne it as to destroy the legal effect of acts of the character disclosed by this record by the testimony of his neighbors and others, given years after the dissolution, to the effect that they did not know until after the happening of that event that he was ever a member of the firm, supplemented by the expression of his own opinion that not one in ten in his vicinity knew of it. The question is not whether one knew it, or nearly all, but whether by agreement, the adoption of a firm name, and subsequent conduct, he so held out the Bloods as the only members of the partnership as to prevent his name from contributing to the standing and credit of the firm. If he did not, then he must be visited with the legal consequences of his failure to give notice to those who had, prior to his withdrawal, transacted business with the firm, and the lack of information on the part of some or many persons will not operate to shield him from it.

The plaintiff, it seems, did not know that Harris was a member of the firm, but that fact cannot avail the defendant, because at the time of the commencement of the dealings with the plaintiff he was “ an ostensible and not a secret partner, and was such as to all persons dealing with the firm, and his liability to the plaintiff is not changed by the fact that the plaintiff did not know that he was a partner. He trusted the copartnership, whoever the partners might be, who composed it.” Howell v. Adams, 68 N. Y, 314.

This position is not only supported by authority, but is well founded in the methods largely adopted in business circles for the purpose of ascertaining whether credit shall be given..

The competition in business and rapidity with which orders must be filled, make it necessary for business houses to promptly ascertain whether credit shall be given. This necessity has contributed to the establishment of agencies which undertake to ascertain the financial condition of corporations, firms and individuals engaged in business.

The inquiry addressed naturally is, what is the financial condition of Jones & Co. ? For, having no acquaintance with the individuals comprising the firm, information as to membership does not aid the inquirer. So, in this case, the plaintiff’s president testified that no inquiry was made as “ to who constituted the firm of Blood & Co. * * * We thought the credit of Blood & Co., when we first commenced dealing with them, was good; we inquired and ascertained that the credit of the firm was good.”

The judgment should be reversed.

Haight, J. (dissenting).

The action was brought to recover upon a liability of the firm of Blood & Co., in which it is sought to charge the defendant Harris as a member of the firm.

The facts are undisputed that from the 1st day of January, 1862, until the 25th day of October, 1869, the defendant was a member of the firm of Blood & Co.; that on the 25th day of October, 1869, the firm was dissolved by the withdrawal of the defendant Harris therefrom, and a new firm organized under the same name, in which one Gr. M. Angier took Harris’ place. The new firm continued business until the 21st day of March, 1876, at which time it made a general assignment for the benefit of creditors. The plaintiff first transacted business with the firm of Blood & Co. in the year 1869, prior to the withdrawal of Harris, and from time to time thereafter it sold the firm material until near the time of the general assignment made as aforesaid; that the liability upon which this action was brought was incurred shortly before the assignment, nearly seven years after Harris had ceased to have any connection with the firm. It further appears that the plaintiff or its officers did not know that Harris was ever connected with the firm until after the liability upon which this action was brought was contracted and the general assignment was made. It is sought, however, to hold him liable for the reason that no notice was given to the plaintiff or its officers of his retirement from the firm in 1869.

The trial court held that if Harris’ connection with the firm was open and notorious as an ostensible partner, he would be liable, but if his position was not open and notorious as an ostensible partner, but was that of a dormant partner, he would not be liable, and this question was submitted to the jury, who found in favor of Harris, and the judgment entered upon this verdict has been affirmed by the general term.

It has been repeatedly held in this court that questions involving the weight of evidence cannot be here reviewed, that they are finally disposed of by the general term, that this court can only inquire as to whether there is evidence upon which the verdict could stand. The claim is made that there is no such evidence.

A dormant partner has been variously defined as sleeping, silent, not known, not acting, one whose name and transactions as a partner are professedly concealed from the world, one who shares in the profits of a business but is not known as a member of the firm. In its strictest sense it may imply both the quality of secrecy and inactivity, but it has been held that to be such it is not essential that the dormant partner should wholly abstain from any actual participation in the business of the firm or be universally unknown as bearing a connection with it. He may act in an advisory manner in the general business of the firm, and it is sufficient if he is not generally known as a partner. North v. Bloss, 30 N. Y., 374.

With this understanding as to the meaning of the term “ dormant,” we proceed to inquire as to whether there is any evidence tending to show whether Harris was such, which required a submission of that question to the jury. Our attention is first called to the articles of copartnership, in which we find it provided that' it is “ agreed and understood by and between the parties that the • said John P. and Samuel N. Blood are to give their entire personal attention to the management of the business, which is to be located and carried on in the boro’ of Athens at such place as shall be agreed upon by the parties, and said John P. Blood and S. N. Blood shall have $600 each year for their services in managing the business as aforesaid, to be drawn from the company’s fund, and neither partner shall have the right to draw any further sum without the written consent of the other parties. The said J. P. and S. N. Blood agree to give their whole time to the business, and to keep an accurate book or books with entries of all matters of business belonging to the firm, which shall be accessible to both parties at all times and for all purposes. * * * And the said N. C. Harris shall be consulted in the business, and all plans and operations of the firm shall be made and done with the advice of the firm, and the said N. 0. Harris is to have and receive from the firm one hundred dollars per year for his services for the care and assistance which he may render to the firm, without giving his personal attention to the business.”

It thus appears from the express provisions of the instrument that the two Bloods are to carry on the business of the firm, and keep its books; that the defendant Harris is not to give his personal attention to the business, but is to be consulted. His position in the firm, therefore, is that of a counselor or adviser, and this is one of the things that he may do and not become an active partner.

It is said, however, that the defendant Harris often visited the work shops of the firm, looked over the buildings and the work that was being done by the employes; that he wrote two letter’s to individuals in reference to the affairs of tlie firm, in one of which he signed his own name, and in the other that of the company. There is nothing, however, in the contents of the first, subscribed by him individually, which indicates that it pertains to any of the affairs of the firm. ' The other, however, has attached a bill of the firm for a balance of an account rendered, to which attention is called in the letter, and the statement is made that the same can be settled by the payment of one-half down and by giving a note for the balance. Harris testified that he took no active part in the business of the firm; that he was engaged with one Clark in the manufacture of mowing machines, ana that they employed the firm of Blood & Co. to manufacture quite a large number of those machines. If this be so, he could properly look after the construction of the machines from time to time as a member of the firm of Harris & Clark, and still not interfere with his character as an inactive partner of the firm of Blood & Co. Whilst the writing of the letter on behalf of the firm may be a circumstance for the jury, this act standing alone would not, as a matter of law, constitute him an active partner.

It is urged that the contract does not provide that Harris should, as to the business of the firm, be wholly inactive. Yery true no such expression appears in the articles of agreement. It does, however, state what his duties shall be, that of advising, etc., but as I have already shown, it is not necessary that he should be wholly inactive, or that he should wholly abstain from, any actual participation in the business.

It consequently appears to me that taking the evidence in connection with the articles of copartnership a question was presented in which the jury might find that his position in the firm was that of an inactive partner.

It still remains to be determined as to whether his • connection with the firm was kept secret to such an extent as not to be generally known. Upon this question Harris testified that at the time they entered into the copartnership it was talked between them that it should not be made public, that it was not to be talked about at all, that that was the understanding when he went into the firm, that he did not know that anything had been said in reference to his connection with the firm in the community in which they did business.

John P. Blood testified that at the time Harris became a member of the firm it was said that he should not be generally known as a partner. On his cross-examination he said he presumed it was known by quite a number that Mr. Harris was a member of the firm, that if a person asked him who had a right to know, he told him, etc. He does not, however, state that any one did ask him or that he in fact told any one.

Evidence was also given on behalf of the defendant by a number of individuals living at the place "in which the firm’s business was conducted, to the effect that they had had business transactions with the firm during its existence, and that they never knew or understood that Harris was a member of the firm until the notice of dissolution was published. It is true that the evidence in reference to the talk about the arrangement to keep Harris’ connection with the firm secret is controverted by the testimony of S. M. Blood, and that various witnesses testified that Harris was reputed to be a member of. the firm. But this only raised a conflict in the evidence which it was necessary to have settled by the jury.

If it was talked and understood that his connection with the firm was not to be talked about at all, as testified to by Harris and John C. Blood, and if the testimony of the witnesses who lived in the immediate vicinity is to be believed, to the effect that they had done business with the firm during it's existence and had not heard or known of Harris’ connection with it, the jury was justified in finding that Hams’ connection with the firm was that of a dormant partner.

But it is said that nothing was said about keeping Harris’ connection with the firm secret in the articles of copartnership and that this evidence was incompetent and should not have been admitted for the reason that it tends to vary a written instrument, that the contract purports to embrace the entire agreement between the parties. It is true that nothing is said in the articles of co-partnership in reference to keeping secret the relation of Harris but I do not understand that it purports to embrace the entire agreement. ‘ If it does, may I inquire how much capital was put in by the Bloods or either of them, or by the defendant Harris, and in what proportion were they to share in the profits or be liable in case of losses? These are quite important subjects in co-partnership agreements, and yet in carefully scanning the agreement-it appears to be silent upon those subjects. At the end thereof it-states that: “ This partnership is made up and based upon all the stocks, tools, patterns, horses, wagons, goods manufactured and in process of being manufactured as per. invoice, with the parties' names attached.” But no such invoice is attached to the exhibit and I consequently am unable to determine as to its contents, and yet reference is made to it as an instrument upon which the agreement is based. So that instead of purporting.to embrace the entire agreement it expressly purports to be based upon another instrument which does not appear in the case.

But again, the question of secrecy is not one which would ordinarily be entered in a written contract. A contract between co-partners usually regulates the rights and liabilities of the members of the firm, and it is not usual or customary for it to regulate the rights of strangers or parties with whom the firm may transact business. Whether or not Harris’ connection with the firm was made public or kept secret did not affect or change the rights and liabilities of the copartners. As between the members of the firm their rights and liabilities were the same whether his connection was public and notorious or secret and unknown. Persons transacting business with the firm alone would be affected. The evidence was competent and it is in entire harmony with the written contract.

But I am of the opinion that the defendant’s motion for a non-suit might have been properly granted. My examination of the case fails to disclose any evidence showing that the relation of Harris with the firm was that of an open, notorious, ostensible partner, or that he was generally understood as such. His name does not appear in that under which the firm did its business. He was not to be active under the provisions of the agreement, and even conceding the testimony of the witnesses to be true who had heard rumors and reports in reference to his being a member, it falls short of giving him the general reputation as an acting, ostensible member, which, under the circumstances- of this case, would render him liable. If a dormant partner, it is conceded he would not be liable by reason of the failure to give .notice of the dissolution of the partnership, and the reason of the rule, is that the plaintiff suffers nothing in consequence of such failure. If the plaintiff had no notice of Harris’ connection with the firm at the time it transacted its business, it could have given no credit on his account.

This rule is salutary and is founded upon reason. The plaintiff has no right to exact a penalty from Harris by reason of his failure to give notice. The word “ dormant,” when used in this connection, should be held to cover cases that clearly come within the reason of the rule. The plaintiff, in order to recover, must show that it has suffered, in consequence of his neglect. It is frankly admitted that the president or officers of the plaintiff did not know that Harris was a member of the firm at any time until after the final credit was given and the general assignment of Blood & Co. was made.

It therefore gave no credit to the firm on account of Harris and it suffered nothing by his failure to give a notice of his retirement, unless his relation with the firm was so notorious and ostensible as to give it a financial standing and reputation with the public. There is no pretense that his relation was of this character, or that any credit was given by the plaintiff because of any such reputation. It would rather appear that the credit was given on account of the Bloods, for in the examination made by the plaintiff before giving credit it is stated that they discovered that the real estate upon which the buildings were constructed belonged to the Bloods.

In the case of Davis v. Allen, 3 N. Y., 168-172, the action was brought against three persons as partners, who did business under the name of the Albany & Buffalo Towing Company. The action was for work and labor done and performed. The defense of the defendant Childs was that the demand accrued against the •company subsequent to his ceasing to be a member of the firm. His name did not appear in the name under which the company did its business. It was claimed, however, that he was liable for the reason that the plaintiff had worked for the company during the years that he was a member, and that no notice had ever been given of his retirement from the firm. Jewett, Ch. J., in delivering the opinion of the court, states the general rule, and then concludes as follows: “ In order to render him liable on this ground it is necessary that he should have been known as a member of the firm to the plaintiff, either by direct transactions or public notoriety.”

In the case of Thompson v. First National Bank of Toledo, 111 U. S., 529, the court at circuit was requested to instruct the jury that if Thompson was not in fact a member of the partnership the plaintiff could not recover against him, unless it appeared from the testimony that he had knowingly permitted himself to be held out as a partner, and that the plaintiff had knowledge thereof during its transactions with the partnership. The court charged all except the last proposition, which it refused. On review it was held that the circuit court erred, holding that the plaintiff could not recover unless he had knowledge that the defendant held himself out as a member of the firm during the time that the plaintiff had transactions with the partnership.

Whilst this case differs from the one under consideration, the principle involved is the same. Gray, J., in delivering the opinion of the court, says: “ A person who is not in fact a partner, who has no interest in the business of the partnership and does not share in its profits, and is sought to be charged for its debts because of having held himself out or permitted himself to be held out as a partner, cannot be made liable upon contracts of the partnership, except with those who have contracted with the partnership upon the faith of such holding out. In such a case, the only ground of charging him as a partner is, that by his conduct in holding himself out as a partner he has induced persons dealing with the partnership to believe him to be a partner and by reason of such belief to give credit to the partnership. As his liability rests solely upon the ground that he cannot be permitted to deny a participation which, though not existing in fact, he has asserted or permitted to appear to exist, there is no reason why a creditor of the partnership, who has neither known of nor acted upon the assertion or permission, should hold as a partner one who never was in fact and whom he never understood or supposed td be a partner at the time of dealing with and giving credit to the partnership.” In further discussing the question the learned justice in his opinion calls attention to the exception and sajrs that “ there may be cases in which the holding out has been so public and so long continued that the jury may infer that one dealing with the partnership knew it and relied upon it, without direct testimony to that effect,” in which case the party would be liable.

Gollyer in his work on Partnership, in § 536, says: “Even where a person has retired from a firm, who though intentionally a dormant partner was known to many as a member of the firm, he will not by failing to give notice of his retirement become liable to the creditors of the remaining partners if such creditors at the time of their respective contracts were ignorant of his being a parner.” See, also, Story on Partnership, §§ 159-160 ; 1 Lindley’s Law of Partnership, 410; North v. Bloss, supra.

I do not understand the case of Howell v. Thomas, 68 N. Y.,. 314, to be in conflict. In that case the defendant had been a member of the banking firm and had filed a certificate with the superintendent of the banking department under the provision of the act to authorize the business of banking and the acts amendatory thereto. He was by this certificate made a notorious, active, ostensible partner upon which as a banking firm' a financial credit was given. The business was conducted under the name of the Suffolk County Bank. The plaintiff did not know who composed ‘the firm at the time of making his deposit. It "was, how-. ever, held that the defendant was liable even though notice of his prior withdrawal had been given. Attention is called to this distinction in the opinion of Gray, J., in the case of Thompson v. First National Bank of Toledo, supra, and also by Jewett, Ch. J. in the case of Davis v. Allen, supra.

I cannot believe that there is anything in the name of “ Blood. & Co.” that makes the defendant Harris liable. There were two members by the name of Blood and one could properly be known as the company.

I am therefore of the opinion that the judgment should be affirmed, with costs.

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

All concur, except Haight, J., dissenting, and Eollett, Ch. J., not sitting.


source: Caselaw Access Project

author: Vann, J.

license: Public Domain

text:
    The National Tube Works Company, Resp’t, v. William J. Gilfillan, App’lt.

      (Court of Appeals, Second Division,

      Filed January 22, 1891.)

    1. Manueactubins companies—Laws 1848, chap. 40, § 10—Liability op STOCKHOLUEB POB NON-PAYMENT OP CAPITAL STOCK.
    All that the statute requires to make a stockholder liable is that a valid debt shall he contracted under the circumstances therein mentioned and before the capital stock has been paid in, either in cash or in property honestly regarded as a fair equivalent to cash.
    2. Same.
    The Brooklyn Marine Power Company was organized September 18, 1884, with a capital stock of $300,000, divided into 600 shares, none of which were paid for in cash, or otherwise than by the transfer of a lot of unpatented inventions by one Bliven. Two hundred shares were donated to the company, 100 shares to defendant in payment of a debt of $15,000, 10 shares to one Baxter in payment of an old debt of Bliven to him of $2,500, and 27 shares to qualify persons as trustees and to induce them to act. Reid, that the property procured in exchange for stock was purchased at an over-valuation, not through error of judgment, but in bad faith and to evade the statute, and that the stockholders were individually liable.
    3. Same—Object op the statute.
    The object of the statute in requiring a certificate to be filed is to inform the public so that they can transact business with the corporation, upon the assurance either that the capital stock has all been paid in, or that the stockholders are severally liable for an amount equal to the stock held by them respectively.
    Appeal from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment for plaintiff entered on a verdict, and also affirming an order denying a motion for a new trial.
    Action by a judgment creditor of the Brooklyn Marine Power Company, a corporation organized under chapter 40 of the Laws of 1848, against the defendant as a stockholder of said company, to recover a debt pursuant to § 10 of said act, upon the ground that the capital stock had not been paid either in cash or in property fairly worth the par value of the stock issued.
    While the answer put at issue all the allegations of the complaint, which was in the usual form in such actions, upon the trial there was no question as to the right of the plaintiff to maintain the action, provided there had been a violation of said section.

      Charles H. Luscomb, for app’lt; Alfred Jaretzky, for resp’t.

      Affirming 11 N. Y State Rep., 533.

   Vann, J.

The substantial issue in this action was whether the property procured in exchange for stock was purchased at an overvaluation, not through error of judgment, but in bad faith, and to evade the statute. Douglass v. Ireland, 73 N. Y., 100, 104.

The trial judge instructed the jury that if they found “ that the stock issued exceeded in amount the value of the property taken in exchange for it and for which it was issued, and that the trustees deliberately and with knowledge of the real value of the property overvalued it and paid in stock for it an amount which they knew was in excess of its actual value, they must find for the plaintiff. If the jury do not find this to be the fact, then they will find for the defendant.”

The jury found a general verdict for the plaintiff and as a special verdict that the property purchased at $300,000 was really worth but $75,000.

The evidence in support of the verdict is sufficient, if not overwhelming.

The company was organized September 18, 1884, with a capital stock of $300,000, divided into 600 shares of $500 each. Within less than a year thereafter it was hopelessly insolvent with all its property levied upon under an execution issued on a judgment recovered by the defendant, its president and a trustee from the outset. None of the stock was paid for in cash or otherwise than by the transfer of a lot of unpatented inventions by one Bliven. Two corporations had been previously organized with the defendant as a trustee in each to handle these inventions, one of which seems to have been merely a corporation on paper that “ had no existence in fact to amount to anything,” while the other was “a disastrous speculation.”

The inventions were purchased by the corporation whose transactions are directly involved in this action, substantially in the following manner, viz: Bliven assigned them to the defendant, who, as trustee, transferred them to the company in consideration of the entire capital stock to be held by him in trust as follows, to wit: 200 shares for the benefit of the company itself; 100 shares, par value $50,000, for the defendant (in payment of a debt of $15,000 owing him by Bliven); ten shares, par value $5,000, for one Baxter (in payment of an old debt of Bliven to him of $2,500); twenty-seven shares apparently given away to qualify persons as trustees and to induce them to act; the remainder to Bliven or for his benefit.

According to the evidence, the jury made a liberal estimate of the real value of the inventions when they found that they were worth $75,000. The good faith of the trustees, including the defendant, as one of the most active in the transaction of this business, may be inferred from the foregoing facts. If they honestly considered the inventions worth $300,000, why was one-third of the avails, $100,000 in stock, donated to the company by Bliven? Why did the defendant accept of $50,000 in stock in payment of a debt of $15,000? Why was $5,000 given to Dexter to pay $2,500 ? Why was $13,500 in stock given to persons ^o induce them to become trustees? Would $300,000 in money have been disposed of in this way? The arrangement to thus dispose of the stock was made before the purchase and became a part of it. The facts were all known to the 'trustees, including the defendant. They were apparently intelligent men, the defendant being a physician. Although they testified that they considered the inventions worth $300,000 or more, the surrounding circumstances permitted the jury to find, as the general term said, that they “ were not only worth less than the price agreed to be ¡¡aid for them, but that it was so understood by the defendant and the other parties to the transactions.” From these and other significant facts, not recited, it is evident that a case was presented for the consideration of the jury and that the motions to dismiss were properly denied.

The merits are with the plaintiff, and when that is the case the exceptions should be overruled, unless a material and manifest error of law has been committed.

The defendant excepted to the following instruction to the jury, made at the request of the plaintiff, viz.: “It is not necessary for plaintiff to prove that the trustees of the Brooklyn Marine Power Company have been guilty of a fraudulent intent to entitle ■ the plaintiff to recover.” We do not think that the exception was well taken, because the jury is presumed to comprehend and act upon the charge as a whole and hence to have understood that the “ fraudulent intent ” referred to meant an actual, furtive design to perpetrate a fraud, for they had already been told that “the fraud is consummated by the issue of stock as full paid stock * * * which has not been fully paid * * * and it does not depend upon any fraudulent intent other than that which is evidenced by the act of knowingly issuing stock for property to an amount in excess of its value. All that is necessary to establish legal fraud * * * is proved in two facts,” etc. The reference was to actual fraud as contrasted with what was termed legal fraud.

The defendant also excepted to the refusal of the court to charge, at his request, that “ if the plaintiff sold the goods to the corporation with full knowledge of what the inventions and improvements owned by the corporation were and, relying upon the merits of the inventions, gave the corporation credit, defendant is entitled to judgment.” This exception is without merit, because the knowledge of the plaintiff and the facts which induced it to sell its goods on credit were wholly immaterial. Within the limitations of the statute the stockholders are liable for “ all debts and contracts made by such company,” irrespective of the circumstances under which they were made. Laws 1848, chap. 40, § 10. There is no exemption from liability because credit was imprudently given by the creditor, or because he supposed that the property of the corporation was sufficient to pay its debts. All that the statute requires to make a stockholder liable is that a valid debt shall be contracted under the circumstances therein mentioned and before the capital stock has been paid in, either in cash or in property honestly regarded as a fair equivalent to cash.

The object of the statute in requiring a certificate to be filed is to inform the public so that they can transact business with the corporation upon the assurance either that the capital stock has’ ’ all been paid in, or that the stockholders are severally liable for an amount equal to the stock held by them respectively. If, therefore, the plaintiff, when it parted with its goods, knew the facts as they then existed, it knew no more than the statute contemplates that all persons, who deal with manufacturing corporations, shall know.

We have examined the other exceptions taken in behalf of the defendant, but find nothing that requires a reversal of the judgment, which should, therefore, be affirmed.

All concur.


author: Parker, J.

text:
    John Horey, Resp’t, v. The Village of Haverstraw, App’lt.

      (Court of Appeals, Second Division,

      Filed January 22, 1891.)

    1. Highway—Pabtial discontinuance—Laws 1861, chap. 311.
    It does not follow, because a portion of that which, was originally laid out as a continuous highway remains such, that all of it does. If a part of it cease to be traveled and used for a period of six years, the public in the meantime using some other route, such part is no longer a highway.
    3. Same.
    A road which for six years is not only not used and traveled but is impassable for conveyances of any kind, is fenced off and the public travel by another route, presents a situation upon which the statute must operate to destroy its legal character as a highway, and it matters not that at the beginning the road was rendered impassable and fenced off by a trespasser.
    3. Same.
    The highway commissioners are charged with the duty of keeping the pu.lic highways in proper condition for public travel, and provided with the legal machinery necessary to prevent trespassers from doing damage to the highways, and means necessary to restore them after injury done, and if they neglect this duty or refuse to perform it for a period of six years and the traveling public acquiesce so that in all that time no one can or does make use of the highway, it ceases to be such.
    4. Same.
    Where it is shown that a certain street for six years has been impassable for teams and vehicles, from a point where a fence had been built across it, to the extreme end as originally laid out, that it was not travelled or used for highway purposes during that period, but was fenced off and the sand and clay excavated and carried away by parties without hindrance by the town officials or the public, it is sufficient to justify a jury in finding that the locus in quo was not a public highway.
    Appeal from a judgment of the general term of the supreme court, second department, entered on an order affirming a judgment rendered October 3, 1887, in favor of the plaintiff.

      Calvin Frost, for app’lt; Alonzo Wheeler, for resp’t.

       Reversing 14 N. Y. State Rep., 498.

   Parker, J.

The plaintiff alleged that his injuries were occasioned by the neglect of the defendant to keep in safe and proper condition for public travel a certain street within the corporation limits known as Warren avenue.

The defendant denies that the place where the accident occurred was at the time of its happening a public highway.

An order laying out Warren avenue as, such was made and filed in 1868,'but defendant asserted that easterly from a point a little west of the intersection of Rockland street it had ceased to be travelled or used as a highway for six years prior thereto, and, therefore, as provided by chap. 311 of the Laws of 1861, had ceased to be a highway for any purpose.

The question is presented on this review by exceptions taken, 1st, to the charge of the court that it “ never ceased to be a public highway by reason of this excavation; not for an instant;” 2d, to the refusal of the court to charge “ that if the part of Warren avenue east of Rockland street has not been travelled or used as a highway for six years before the time of the injury, such part of the street ceased to be a public highway for any purpose, and the defendant was not bound to keep it in repair.”

The introduction of evidence showing that Warren avenue had been legally laid out as a highway raised the presumption of its continuance as such. The burden of establishing that a portion of it had ceased to be a highway, therefore, rested upon the defendant. It is conceded that from a point a little west of Rock-land 0street to Broadway it still remains a public street, but that from such point easterly towards the Hudson the defendant asserts it had ceased to be such before the plaintiff was injured. It does not follow that because a portion of that which was originally laid out as a continuous highway remains such that all of it does. If a part of it cease to be travelled and used for a period of six years, the public in the meantime using some other route, such part is no longer a highway. Lyon v. Munson, 2 Cowen, 426. A highway opened and worked for a part of the distance only, as described in the survey, but not on a particular portion thereof until after the lapse of more than six years, ceases, as to such part, to be a highway for any purpose. Christy v. Newton, 60 Barb., 332. The statute which provides that “ all highways that have ceased to be travelled or used as highways for six years shall cease to be a highway for any purpose,” also provides that “ every highway hereafter to be laid out that shall not be opened and worked within a like period (six years) shall cease to be a road for any purpose whatever.”

The provision last referred to was before this court in Beckwith v. Whalen; 70 N. Y., 430. It appeared that the highway as laid out had been worked to some extent down to a raceway which was twice bridged, and some other work done, but that over a marsh about 200 feet in all, no attempt had been made to render the road passable for teams and wagons. The court said: “ Highways are for public use to enable the public to pass and repass with teams and vehicles, such as are ordinarily used; and when a highway laid out shall remain unopened and unworked for six years, the statute declares that it shall cease to be a highway for any purpose. The requirement to open and work a highway implies that it must be made passable as a highway for public travel. It need not be a first class road; it need not be finished ; but it must be sufficient to enable the public to pass over it.” While the court in the case from which we have quoted did not have under consideration the provision declaring that failure to use a highway for six years shall operate to destroy it, it did have before it that portion of the same section which declares that a failure to open and work a highway within six years after its laying out shall have the same effect. Its decision, therefore, seems to make clear not only the general purpose but the scope of the entire statute.

As a road is declared not to be opened and worked within the meaning of the statute which is not made passable for teams within six years, so a road which for six years is not only not used and travelled, but is impassable for conveyances of any kind, is fenced off and the public travel by another route, presents a situation upon which the statute must operate to destroy its legal character as a highway, and it-matters not that at the beginning the road was rendered impassable and fenced off by a trespasser. Indeed, such must always be the case unless it be done by the public authorities. The public can be protected by the highway officials, whose duty it is to see to it that all public highways are kept in proper condition for public travel. They are not° only charged with a duty to do so, but are provided with the legal machinery necessary to prevent trespassers from doing damage to highways and the means necessary to restore them to a safe and passable condition for travel after injury done. And if they neglect this duty or refuse «to perform it for a period of six years, and the traveling public acquiesce, so that in all that time no one can or does make use of the highway, it ceases to be such.

This question was not before the court in Driggs v. Phillips, 103 N. Y., 77; 3 N. Y. State Rep., 69. It was not suggested in that case that the highway had ceased to be such because of nonuser and an obstruction to travel for six years. Plaintiff encroached upon, but did not obstruct the highway. Non-user did not result from his act And the attention of the court was not even called to the statute which the defendants rely upon here.

The accident to the plaintiff occurred September 26, 1886, within the boundaries of a highway laid out in 1868, known as Warren avenue. At that time it extended from Broadway easterly towards the Hudson river. But at the time of the accident the road was only open and used from Broadway east to a point about 210 feet west of Rockland street, which intersected with Warren avenue from the south. There a fence was maintained across Warren avenue, and the public drove either in a southerly or northerly direction over roads which were not laid out as highways, but which they were accustomed to use. From near the fence crossing the avenue easterly past the place of the accident, and for its entire length, the evidence shows that at the time of the accident this highway was impassable, not alone because of the fence (which had been erected as a guard to the public), but because of excavations which had been made in securing material for the manufacture of brick. In this immediate vicinity it appears that below' the surface there is about twenty feet of sand, and then is reached a bed of clay. Now, from the fence east, until within about forty feet of the place of injury, the sand had been removed, and still below it the clay had been excavated to a depth of about thirty feet, making a total depth from the original surface of the road of about fifty feet. At the point where plaintiff entered from private property within the boundaries of Warren avenue (so called) the sand had been removed, so that he was then twenty feet below the original surface of the road. Westwardly for about forty feet was a bench of clay twelve feet lower still, and then was reached the line of excavation of the depth of fifty feet, already referred to. Plaintiff fell from the level upon which he entered the avenue to the bench of clay twelve feet below.

In addition to a description of the condition of that which had once been laid out and used as a highway, to which we have but briefly alluded, the defendant offered evidence tending to show that it was impassable for teams, and had been for a period of more than six years before the injury.

Leavilette Wilson, a surveyor, sworn in behalf of the plaintiff, testified, in effect, that while the highway was laid out in 1868, it was never opened and worked as a public street. That in 1875, , nearly eleven years before the accident, a fence was built partly across Warren avenue, but a little further east than its present location, and that from sometimé in that year the street was dug away, that from 1879 the whole of the street has been excavated so that it could not be entered from Rockland street at all. The plaintiff attempted to show that as late as the year 1883 teams were driven upon the highway at the point in question. Defendant’s witness Yau Yalen who was "for a number of years president of the village, testified that not in eight or ten years has there been a place east of the fence across the street where a person could drive upon Warren avenue except from private property.

We need not consider further the evidence presented by this record, for we have already gone far enough to make it appear that if the jury believed the evidence most.favorable to the defendant they could have found that for more than six years previous to September 26, 1886, from the fence across Warren avenue to the extreme easterly end thereof as originally laid out, it was impassable for teams and vehicles, that it was not traveled or used by any one for highway purposes during that period but was fenced off and the sand and clay excavated and carried away by private parties without hindrance by the town officials or the public.

Had they found such to be the fact the defendant would have been entitled to a verdict on the ground that the focus in quo was not a public highway and therefore the defendant did not owe to' the plaintiff the duty of keeping it in repair.

The judgment should be reversed.

All concur.


author: Barnard, P. J

text:
    Alexander M. Hunter, Resp’t, v. Clara L. Walter, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Mechanics’ lien—Filing.
    Where there was no proof of the date of the actual filing of the lien, hut counsel stated that it was filed on a certain day, and the notice was dated the previous day, and stated that the work was completed within ninety days prior thereto, and a copy of such notice was served on the owner the day following such alleged filing, Held,, that in the absence of any specific objectionor demand for proof of filing, the referee was jnstifFd in finding that the lien was filed on the day stated bv counsel, and that the work waa done within ninety days preceding the filing.

      2. Same—Certification.
    A general objection to a copy of the lien offered, in evidence, that it is “.not properly certified,” is not sufficient; the particular defects objected to should be specified, so that the plaintiff may furnish the proper proof.
    3. Same—Notice.
    A notice of lien which particularly describes the work done under the contract, and states that the lienor " performed extra work in or about the building and premises aforesaid, and -furnished materials therefor ” of a certain value, is sufficient.
    4. Same—Contract—Abandonment.
    Where the owner fails to pay as agreed, the contractor may abandon the work and charge a quantum meruit price for the work done.
    Appeal from, judgment in fayor of plaintiff, entered on the report of a referee.
    Action to foreclose a mechanic’s lien.
    The notice of lien stated that the nature and amount of the lien claimed was as follows:
    “ I, the said Alexander M. Hunter, entered into a contract witn the owner hereinafter named by the terms of which I agreed to perform certain labor and furnish certain materials in and about the alterations and repair of the dwelling house on the premises hereinafter described, and to build a chicken house thereon and to build a servant’s dining room thereon and to alter and repair the carriage house and stable thereon, for which she agreed to pay the sum of $2,800. That all of said work was duly performed by me, and she has paid on account thereof $2,650 and no more. That at her request I also done and performed certain extra work in and about the building and premises aforesaid, and furnished certain materials therefor, of the reasonable value and amount of $675.51, no part of which has been paid. That all of the said work was done and completed and said materials were finally furnished within ninety days immediately preceding the date of this notice, and all the work and labor for which the claim is made has been actually performed, and said materials have been actually furnished, and I claim a lien upon said buildings and the land upon which the same stands, for the sum of $825.51, with interest thereon from the 22d day of August, 1885.”
    The copy notice offered on the trial was certified simply by the words, “ a copy,” signed by the clerk.

      Fromme Brothers, for app’lt; J. F. Harrison, for resp’t.
   Barnard, P. J

The defendant is the owner of a house upon which the plaintiff agreed to do certain work for the sum of $2,800. The work has been done with a trifling exception and there is due the plaintiff upon the contract $149.50. The plaintiff did extra work upon the building and the referee has found that there is due to the plaintiff for that the sum of $672.01 besides interest. There is no proof of the precise day upon which the’lien notice was filed'in the Westchester county clerk’s office. It seems to have been assumed that the day of filing was 29th of August, 1888. The counsel for the plaintiff stated that as the day of filing accompanied by a certified copy of the notice filed. Objection was only taken to the form of the certification and that only by a general objection that it was “not properly certified.” The notice states the work to have been completed within ninety days immediately preceding the date of the notice and that the interest will be demanded from the 22d of August, 1888,' and the notice is dated August 28th and a copy was served on the owner August 30, 1888, and no motion for a dismissal of the complaint for lack of proof was made. Under this proof, without a specific objection or in some way calling for proof of the filing of the notice, the referee was justified in finding the lien to have been filed the day stated by the counsel as the day of filing and that the work was done within ninety days preceding the filing. Hor can objection be made that the certificate was not more formal. Whenever the objection would permit the party to furnish the proper proof, a formal general objection will not suffice to put the party on his guard. A certified copy is. made evidence by § 8 of chap. 342, Laws of 1885.

The lien notice was sufficient under the lien law. The whole notice must be read together. The notice is very particular as to that part of the claim which is included in the regular contract. The claim for the extra work is stated to have been performed upon the same premises and the material to have been furnished therefor. The claimant states that he performed service and furnished materials which have been used in the owner’s house. The notice and amount of the labor and service and the materials furnished are sufficiently stated. The owner claimed that there was a contract for the construction of certain fences at an agreed price outside of the $2,800 contract which the lienor failed to do. The plaintiff denies this allegation. He testifies “ there was no contract made with regard to the fence.” The referee has found that the plaintiff did not fail to complete the fence contract, but the plaintiff admits that the fencing never was completely done. Assuming, therefore, a contract to do a piece of fencing for $140 and a failure to complete it, no ground is established for denying a lien for one contract and extra work upon another. Ho counterclaim was set up for the failure to perform the contract for fences ; and the referee has allowed nothing for fencing beyond what was done, being some forty feet of temporary fence. The owner failed to pay as agreed and the contractor could abandon the work' and charge a quantum meruit price for the work done. Hone of the exceptions noticed upon the appellant’s points seem to have any injurious effect upon the issues tried between the parties.

The judgment should therefore be affirmed, with costs

Dykman and Pratt, JJ., concur.


author: Barnard, P. J.

text:
    In the Matter of the judicial accounting of Druscilla Werry et al., Ex’rs of Peter Werry, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Wills—CoNSTBTJCTioisr of.
    ' Testator, by Ms will, devised two farms to Ms son and directed the other lands to be sold. He gave a daughter a life estate of $2,000, with remainder to her children and to his wife a life estate in all his loose money. On the sale of any of the real estate the testator bequeathed .the proceeds to his other four daughters. Held, that the proceeds of the farms sold were not included in the term loose moneys and the said daughters were entitled thereto at once after setting aside the life estate of the-daughter first named.
    Appeal from decree of the surrogate settling the accounts of the executors.

      William Van Namee, for app’lts; Fullerton & Rushmore, for the special guardian, resp’t.
   Barnard, P. J.

The evident intention of the testator drawn-from the will is plain. The testator had-a son and he had wife- and daughters. He had both real and personal estate. He gave absolutely to the son two farms of land with all the property upon them. He directs the other lands to be sold. After giving two. small legacies he gave his wife a life estate in all his loose money. The will is silent as to the fact whether or not the loose money shall include the proceeds of the farms, but the question is not important if the final disposition of the proceeds of the land sóidas well as the personal property is made clear by the will, and this depends upon the construction to be given to the sixth section of the will, which is in these words :

Sixth: It is my will further that as soon as any or all of my real estate is sold, which I have ordered sold, and any accumulation of rents and the money arising from any other source except as I may have hereinbefore disposed of after my just debts and funeral expenses are paid, I give and bequeath the following: To my daughters Elizabeth and Druscilla each one quarter thereof to be theirs absolutely. The interest and income arising upon one quarter to be paid annually to my daughter Mary Osborn for and during her natural life, and at her death the same to be paid to her children share and share alike. The one quarter which my daughter Adelia Kernick would have been entitled to had she survived me I give and bequeath to her children share and share alike.”' This language plainly makes a general residuary clause of all the-testator’s property which was undisposed of by the will. The general scope of the will is against a construction which shall leave-the testator intestate as to the bulk of his property. The testator had disposed of some land and had given a life estate in $2,000' to his daughter Margaret with remainder to her children, and then he gave money from all sources except so far as disposed of by the will to the four remaining daughters. I think the proceeds of the farms were not included in the term loose money and that Margaret’s life estate did embrace the proceeds of the farms sold, and that when the farms were sold the four daughters were entitled at once to the proceeds after setting apart the life estate to-Margaret. The death of the widow leaves the entire residuary estate to be divided, and it is of no importance whether the four-daughters could have taken the portion of the proceeds of the-farms when they were sold.

The decree of the surrogate should be both modified so -as to-divide the entire residue among the daughters mentioned in the sixth clause, and, as directed therein, with costs to appellants out of the estate.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    In the Matter of the Application of The Kings County Elevated Railroad Company to acquire land. In re Joseph Bryan.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Eminent domain—Damages—Report.
    In proceedings by a railroad to acquire land, the commissioners appraised the damages to respondent’s land, but, at the request of the railroad, certified in their report that in doing so they made no allowance or deduction for any real or supposed benefits to the land. Held, that the special term had power to send back the report to the commissioners to consider and pass on the question of benefit, and properly exercised its discretion in so directing.
    Appeal from order recommitting report to commissioners.
    In proceedings by the railway company to acquire title to the • property of Bryan, the commissioners reported that he was entitled to $5,000, and that in determining the amount of such compensation they made no allowance or deduction on account of any Teal or supposed benefits which parties in interest may derive from the construction of the railroad. This report was confirmed March 15, 1890. Subsequently, on June 30th, the court made an order, on motion ,of the property owner, recommitting the report to the commissioners with directions that they shall state therein whether any benefits have accrued from the railroad to the property, and, if any, the amount thereof, and whether or not such benefits have been deducted in estimating the damages at $5,000, and from this order the railway company appeals.

      Leslie W. Russell and Welton Percy, for app’lt; Smith, Wood-ward & Buckley (Chas. J. Patterson, of counsel), for resp’t.
   Pratt, J.

Commissioners were regularly appointed and made their report, which was confirmed.

In their report the commissioners certified as follows, to wit, “ In determining the amount of such compensations, we made no allowance or deduction on account of any real or supposed bene- ■ fits which the parties in interest may derive from the construction of the road.”

Although this clause was inserted in the report at the instance of the counsel for the railroad, an appeal has been taken by the railroad company, and it may be possible that it was error on the part of the commissioners not to determine and take into account in assessing the damages any supposed benefits that might accrue ■to the owner of the lands from building the road, although it would seem that if upon the hearing the railroad company made no •claim for benefits, it ought not to be regarded as error if the commissioners failed to consider that question.

It is but just, however, to both parties that the report should be sent back in order that the commissioners may consider and pass upon this question, and if necessary amend their report The power of the court at special term to make such an order cannot be questioned. Matter of N. Y. C. & H. R. R. R, 64 N. Y., 60; also In Matter of N. Y., L. & W. R. R., 29 Hun, 602, affirmed 93 N. Y., 385.

We think the discretion was properly exercised by the court at special term in making the order appealed from, and it must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Edward L. Kelsey, App’lt, v. Robert Burgess, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Highways—Tbesfass.
    In an action for trespass committed by defendant as overseer of highways in removing plaintiff's fences, which were erected across a road, the defendant proved a certificate made by commissioners of highways after the erection of such fences ascertaining and describing the road as a highway, but such certificate did not purport to be based upon a record nor upon an adjudication by the commissioners that there had been twenty years user. The court held the certificate conclusive, and excluded evidence tending to show that the road had not been used as a highway and was not one by use or dedication. Held, error.
    Appeal from judgment m favor of defendant dismissing the complaint
    Action to recover damages for trespass upon plaintiff’s land and removing fences. The defendant in his answer justified, alleging that the locus in quo was a highway and that he entered as overseer of highways to remove an obstruction.
    Appellant proved his title to the land, possession and the entry by respondent and consequent damage, and rested. Thereupon respondent called Richard E. Allen, a commissioner of highways, and was allowed to show, in spite of the appellant’s objections and exceptions, that the commissioners had met in May, 1889, and ascertained that the locus in quo had been used as a highway for many years, and had thereupon caused a survey and record thereof to be made. This witness himself testified that he resided in a distant part of the town and did not know, except, by hearsay, how long the road had been used prior to the time the commissioners made the record of it as above stated, and at that time that there was a fence across it. There was no other-evidence that the premises in question was a highway.
    The respondent then rested, and the appellant offered to show that the locus in quo was not a highway, and the commissioners had no jurisdiction to make the order. This was objected to by the respondent, on the ground that the commissioners’ order ascertaining and describing the road precluded the appellant from showing that the road was not a highway. The court sustained the objection and the appellant excepted. The appellant further offered to prove that there had never been any dedication of the land to the public as a public highway, nor acceptance thereof by the public authorities or by public user, prior to the time when the plaintiff fenced it in. This proof was, upon a similar objection, excluded, and appellant duly excépted. The appellant then requested to be allowed to go to the jury upon the question whether the locus in quo was a highway at the time the commissioners made the order mentioned; but to this a similar objection was made, and the court having denied the request the appellant excepted.
    The court thereupon directed a verdict for the respondent, on the ground that the order of the commissioners ascertaining and describing the road concluded the appellant from contending that it was not a highway, and the jury found accordingly. The appellant duly excepted to this direction of the court.

      Henry A. Monfort, for app’lt; James L. Baxter, for resp’t.
   Barnard, P. J.

The road in question was not proven to have been laid out and entered of record as a highway. The plaintiff proved a good title to the land over which the alleged road passed. The road had been used by the public more or less until April, 1889, when the plaintiff built a fence across both ends of the road, but conforming to his boundary lines.

The defendant, acting under the direction of the commissioners of highways, removed the fence, which is the trespass alleged in the complaint

The defendant proved a certificate or order of the commissioners, ascertaining and describing the road as a highway. The court held the certificate conclusive upon the plaintiff that the locus in quo was a highway, and dismissed the complaint.

The commissioners acted under 1R.S., 501, § 1, subd. 3. This subdivision requires the commissioners to ascertain, describe and. enter of record roads which had been laid out, but not sufficiently described, and also roads used for twenty years, but not recorded. The certificate given in evidence did not purport to be based upon a record, nor upon an adjudication by the commissioners that there had been a user of twenty years without record.

The commissioners have not adjudicated upon either branch of the statute, but simply order the road to be ascertained, and “ that said road is hereby ascertained and described.” The certificate did not, therefore, furnish of itself any defense for the trespass.

There is no appeal from this order of the commissioners. People v. The Judges, 24 Wend., 491; Wiggins v. Tallmadge, 11 Barb., 457.

If the road had been used twenty years as a public highway, that will be a defense for the removal of the fence.

The court refused the plaintiff the right to prove that the same had not been used as a highway, and was not a public highway either by use or dedication.

If the certificate had adjudicated the road to have been used for twenty years, it_ was not conclusive. The land owner had the-right to have the fact passed upon by a jury. Wiggins v. Tallmadge, 11 Barb., 457.

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

Pratt, J., concurs; Dykman, J., not sitting.


text:
    Warren Foote et al., Resp’ts, v. Richard D. Stryker et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Fraudulent conveyances — Consideration for assignment of mortgage.
    A father, while solvent, gave two mortgages to his daughter, who foreclosed them and purchased one piece of property on the sale for the amount of the mortgage thereon; the other being sold and conveyed by the referee to the father without consideration and without the daughter’s knowledge. He then promised to pay her the amount of the mortgage thereon, hut conveyed the premises to his wife who afterwards reconveyed them to him through the daughter, who also conveyed the piece purchased by her and the father gave her an assignment of a mortgage, which was less than the amount of the two mortgages first mentioned. In an action to set aside such assignment, Deld, that a sufficient consideration was shown to render the assignment valid as against creditors of the father.
    Motion for reargument.

      I. Newton Williams, for motion; Charles J. Patterson, opposed.

       See 32 N. Y. State Rep., 357.

   Barnard, P. J.

The decision of this court upon the former argument (excepting an immaterial statement in the opinion that Anna Stryker acquired two pieces of property by foreclosure of two mortgages given to her by her father in 1875, and . at her father’s request conveyed the lands- to him, when in fact she so acquired and conveyed one of these parcels and he first acquired the other by a deed direct from the referee on such foreclosure without consideration and without the daughter’s knowledge) is sustained by the proofs.

On April 20, 1875, Richard D. Stryker gave to Anna M. Stryker two mortgages (among others) one of $1,800 on Rochester avenue property and one of $2,000 on Gold street property. In 1876 she foreclosed the mortgages and at the sales she bought in the Gold street property and the referee conveyed the Rochester avenue property to Richard D. Stryker without receiving any consideration therefor and without her knowledge. She learned the fact some three months afterwards and her father then promised to pay her the amount of her mortgage for the property. In 1876 Richard D. Stryker conveyed this Rochester avenue and other property to his wife without consideration through a third party, and in 1877 the wife reconveyed to him through their daughter Anna M. Stryker, without consideration, and the daughter also at this time conveyed to him the Gold ctreet property, when he promised to pay her the amount of her mortgage upon that property for the property. She never received and he never paid any consideration for either of these parcels or her mortgages thereon prior to the assignment of the Hanna mortgage in dispute.

Upon an examination of Anna M. Stryker in supplementary Eroceedings against her father prior to this action she testified that er father owed her nothing at the time of this assignment of this. Hanna mortgage, except certain specified and referred to loans testified to by her, and on this trial she testified that her examination upon said proceedings was true but she says that she did not understand that any matter other than loaned moneys- was then being inquired into.

There is no other evidence that these properties were ever paid for save pro tanto by this Hanna mortgage. There is no evidence of gift by the daughter to her father save the possible assumption from the fact that she trusted him when he could not secure her save by destroying all chance of realizing the moneys from the mortgage for which she conveyed to him.

Motion denied, with ten dollars costs.

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    In the Matter of the application of The Atlantic Avenue Elevated R. R. Co. for appointment of Commissioners, etc.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Railroads—Elevated.
    In proceedings to determine whether an elevated railroad should be constructed in certain streets’in Brooklyn it appeared that Atlantic avenue, a main thoroughfare, was obstructed by a surface railroad with fences along its side and gates at the street crossings; that such crossings are dangerous; that such obstructions can be removed by consent of the company if an elevated road is built; that most of the buildings are inferior and a| large part of the property unimproved. Held, that the decision of the commissioners in favor of an elevated road was proper and their report should be confirmed.
    Motion to confirm report of commissioners appointed to determine whether an elevated railroad should be constructed in certain streets in the city of Brooklyn.

      George W. Wingate, for motion; Carpenter & Roderick, opposed.
   Dykman, J.

This is an application for the confirmation of the report of the commissioners appointed to determine whether an elevated railroad ought to be constructed in certain streets in the city of Brooklyn, and although three separate routes are included in the scheme, yet the opposition to the report seems to be directed mainly against route number one, which is projected over Atlantic avenue.

That avenue is one of the great thoroughfares of the city of Brooklyn, and its condition is described in the report of the commissioners as follows:

“ The condition of Atlantic avenue at the present time is this : The street is six and one-half miles long from the ferry to the city line. Between South Ferry and Fifth avenue the sidewalks are each twenty feet wide, and the roadway sixty, making the whole street one hundi-ed feet wide. Between Fifth and Classon avenues the sidewalks are each twenty feet wide, and the roadway eighty feet, making the avenue one hundred and twenty feet wide. East of Classon avenue the width of the street is the same, but the sidewalks are twenty-six feet wide and the roadway sixty-eight feet.”
Between Flatbush avenue and the city line a strip twenty-eight feet wide in the centre of the street is occupied by a double track surface railroad, which is used by the Long Island Railroad Company for rapid transit trains and for its general .business, including its freight trains and its trains to Manhattan Beach and Rockaway.”
“ This strip has fences on each side of it, and gates at each cross street These gates are closed as each train approaches, shutting off travel, and rendering travel inconvenient and dangerous.”
“ Many, it is alleged, are annually killed or injured by the road as now operated. The street east of Flatbush avenue is sparsely built upon. A few good- buildings have been recently constructed, but a large proportion are stables or frame buildings, and the greater part of the property is unimproved.”
“ West of Flatbush avenue the avenue is occupied mainly by -old-fashioned and inferior buildings with stores and apartments or tenements above.”
“ The steam surface road, as now operated by the Long Island Railroad Company on Atlantic avenue east of Flatbush avenue, which it seems cannot be removed except by the consent of the ■company, is fenced in along its whole length, with gates at the street crossings shutting off all travel during the passage of trains, and has practically destroyed the usefulness of Atlantic avenue, which naturally should be one of the great thoroughfares of the city of Brooklyn.”

These lengthy extracts not only furmsn a description of Atlantic ■ avenue, but they enable us to recognize the necessity of providing relief for the'avenue from the obstructions now resting upon it.

The occupation of a strip twenty-eight feet wide through the middle of the street from Flatbush avenue east to the city limits by a surface railroad fenced on both sides substantially destroys the street for the purposes of public travel; not only so, but it practically cuts the city into two parts. It cannot be crossed except at the street crossings, and then only at great peril, and -some relief from such a situation becomes an obvious necessity.

So it will be perceived that the commissioners were not entirely untrammeled in selecting and determining the best means to be adopted for the relief of Atlantic avenue. The Long Island Railroad Company had fastened itself upon the street and secured the right to retain its possession; and the alternative was presented to the commissioners of reporting in favor of the construction of an elevated road by harmonious action with that corporation or leaving the avenue in its present deplorable condition. They possessed no authority to require a depressed road, and could only report in favor of or against an elevated structure.

Under such circumstances their determination was plainly a judicious one. By it they secure the removal of the surface obstructions and the restoration of that broad and capacious avenue to its original capacity and utility, and open up a great highway through the entire city from the East river to the outer hounds of the corporation. It is true the elevated structure is to be built and operated over the avenue, and damage and inconvenience will result to private parties from its construction and operation, but ample compensation can be made for all such injuries, and the resulting benefits to the city and the public will more than countervail all resulting loss and inconvenience.

. The great advantage to be secured by the successful consummation of the projects which these commissioners have approved will be the freedom of the entire surface of the avenue and its adaptability for public travel. This wide way is the straight line of passage through Brooklyn to Hew York city and as such its importance can scarcely be over estimated.

So the adaptability of Atlantic avenue to the construction and operation of an elevated railroad is obvious at first glance. Its great width will reduce the extent of interference of the railroad with private interests and enjoyment and public convenience to Its lowest limit, and perhaps no street in the entire city is as suitable for an elevated railroad as Atlantic avenue.

The other routes are dependent upon the main line through Atlantic avenue and follow its success.

The elevated railroads already in operation in Brooklyn have been very beneficial to the city, and it is obvious that the road now under consideration will be at least equally helpful and advantageous.

The removal of the surface obstructions and the establishment -of a great line of public travel will bring to Atlantic avenue a degree of enterprise and prosperity unknown in its previous history.

The report should be affirmed.

Barnard, P. J., and Bartlett, J., concur.


author: Pryor, J.

text:
    Anna Maria Doyle, Resp’t, v. The Manhattan Elevated R. Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 5, 1891.)

    1. Railroads—Elevated—Evidence.
    Errors in the admission or exclusion of evidence as to the fee value in actions against an elevated railroad are ineffectual to reverse the judgment, unless they invalidate plaintiff’s claim to injunctive relief.
    3. Same—Trespass.
    The construction and operation of an elevated railroad in violation of plaintiff’s easements in the highway is a continuing nuisance, for each continuance of which a new action may be brought.
    Appeal from judgment in favor of plaintiff.

      Julien T. Davies and Brainerd Tolles, for app’lts; W. G. Peckham, for resp’t
   Pryor, J.

Action for injunction to restrain the maintenance and operation of defendants’ railway and for damages for past injuries. Appeal from judgment awarding such injunction and damages.

The allegations upon which appellants mainly rely are in the admission and exclusion of evidence as to the fee value of the property in question, and so they affect the amount defendants have the option of paying in avoidance of the injunction. But such errors, unless they invalidate plaintiff's claim to mjuuctive relief, are ineffectual to reverse the judgment Lawrence v. R. R. Co., now decided, 35 N. Y. State Rep., 39. And we are of opinion that upon the unchallenged and uncontroverted evidence, the right to an injunction is clear and incontestable.

It is equally plain that the sum, payment of which is offered defendants as an alternative of the injunction, is not so exorbitant as to call for revision by the general term in the exercise of its power to redress an abuse of discretion below.

The question, then, is, does any error invalidate the judgment for damages ? The errors, if any, in the admission or exclusion of evidence as to past damages, are immaterial and harmless; for the reason that the unchallenged and uncontroverted proof clearly justifies the amount awarded for such damages.

But appellants contend that acts barred by the statute of limitations are made the basis of recovery. Not so, however. The ground of the action is the taking of plaintiff’s property without compensation. Story v. R. R. Co., 90 N. Y, 122; Lahr v. R. R. Co., 104 id., 268; 4 N. Y. State Rep., 340. The construction and operation of defendant’s railway in violation of plaintiff’s easements in the highway is “ a continuing nuisance; ” and every continuance of a nuisance is a fresh nuisance, for which a new action may be brought Uline v. R. R. Co., 101 N. Y., 98, 109, et seq.

The leases of plaintiff’s property were all made after the construction of defendant’s railway; and all terminated before the commencement of the action; and so at the time of the injury possession was in plaintiff. But, by express provision of the Code, § 1665, “a person seized of an estate in remainder or reversion may maintain an action founded upon an injury done to the inheritance, notwithstanding any intervening estate for life or for years.” The claim is for an injury to the inheritance, the depreciation of its value; but no recovery can be had of past damages for such injury beyond a period of six years. Here the trial judge expressly ruled that no damages should be allowed except as accruing within the six years.

The judgment should be affirmed, with costs.

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