author: Dwight, P. J.

text:
    Phoenix Insurance Company, Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 18, 1894.)

    Appeal—Chabse.
    Instruction, which assumes, contrary to the fact, that there was evidence upon an issue, is reversible error.
    Appeal from an order denying a motion for a new trial on the minutes of the court after a verdict in favor of plaintiff.

      K Harris, for app’lt; William N. Cogswell, for resp’t.
   Dwight, P. J.

The action was to recover damages for the destruction by fire of a malt house and its contents, at North Rose, in Wayne county, owned by the plaintiff York, and insured by the plaintiff the Phoenix Insurance Company and its assignors. It was alleged that the fire resulted from the negligent construction, repair, or operation of one or more of the defendant’s locomotive engines, employed by it on the line of the Rome, Watertown & Ogdensburg Railroad, whose tracks ran near the property destroyed. The case for the plaintiffs was made out, as is usual in such cases, by evidence to the effect that a locomotive engine which passed the malt house shortly before the fire was discovered emitted sparks or burning cinders so large that they could not have passed through the meshes of a properly constructed spark arrester in good repair. The engine to which all the testimony of this character related was the one known as “ No. 14,” a “ diamond stack ” engine, and was drawing a freight train to the east. There was also some attempt on the part of the plaintiffs to show that the diamond stack is not so effective and reliable as a spark arrester, as the “ extension front.” The latter proposition was controverted by the defendant, and evidence tending to show that the spark arrester of engine No. 14 was either of defective construction or out of repair was met by evidence to the effect that the smoke stack of engine 14 was inspected by several persons immediately (or soon) after the fire, and was- found to be of the most approved construction of its class, and in perfect repair. Here was the conflict of evidence —on the one hand, the testimony of several witnesses that they saw burning cinders in the air, from this engine, as large—variously—as cherries, as pigeon’s eggs, as' butternuts, “ as big as your thnmb; ” and, on the other hand, the testimony of as many witnesses, of equal credibility, so far as the record shows, to the effect that there was at the same time, in the smokestack'of the same engine, a screen, which must have absolutely prevented the escape of sparks or cinders of far less size than those described, and which was fully up to the requirements of care and diligence on the part of the defendant. It seems that the evidence of the first description above given impressed the jury as being the more probable and worthy of credit, and accordingly the plaintiffs had a verdict. We deem it unnecessary to review this verdict on the evidence because of what we regard as a manifest error in the submission of the case to the jury. As may appear from the statement already made, the plaintiff’s case depended, mainly, if not wholly, upon evidence of the size and quantity of the sparks or burning cinders emitted from the smokestack of the engine, by which fire was communicated to the building; and, as we have already intimated, evidence of that character was confined to the case of che diamond stack engine No. 14. The fire occurred on the evening of May 14, 1891, and was first discovered on the roof of the malt house between half past 8 and 9 o’clock. Three trains of the defendant passed the station at North Rose,, which was near the malt house, between 8 and 9 o’clock that evening. The first was a freight train, drawn by extension front engine No. 19, going east, at 5 minutes past 8. The next was the/ train drawn by engine No. 14, which arrived from the west at 3:25 and ran east, past the malt house, onto a side track, arid there waited for a passenger train, which went by at 8:39, immediately after which it backed up, again passed the malt house, onto the main track, and then pursued its journey to the east. There is no possibility of mistake in identifying engine No. 14 with the engine which is described as emitting sparks of extraordinary size and quantity. All the evidence on that subject concurs in doing so. There is no mention of any sparks or fire from the engine No. 19, and of the passenger engine it is only said by one witness that he noticed “ a little bit of fire from her," which, in the absence of further description, may be presumed to have been the minute incandescent particles which inay commonly be seen in the smoke of a locomotive engine at night. It was the engine of the freight train which ran onto the siding, and waited for the passenger train, which followed the passenger train to the east, which was the last engine to pass before the fire was discovered, which passed 15 or 20 minutes before the alarm was given. This was the engine, and the only one, concerning which any evidence was given which tends in any degree to charge the defendant with negligence in respect to its construction or repair on management; and this was beyond dispute engine No. 14. This was the engine which was described as “ laboring ” with its burden as it pushed and drew it back and forth on the siding and main track, and as emitting large sparks in doing so; and it was the engine which returned from Wolcott, on the telegraphic summons of the agent at North Rose, and brought the fire company from the former place, some of whom testified to sparks emitted by it on the return. Moreover, if anything was to be claimed for the plaintiffs’ case on the ground of the inferiority of the diamond stack to the extension front, No. 14 was the only engine against which that claim could be made. Indeed, so manifest was it that the plaintiffs’ case related solely to engine No. 14 that the defendant very properly gave no evidence at all in respect to the actual condition or management of either of the other engines mentioned.

Such being the state of the case, counsel for the defendant requested the court to charge the jury “that, if they find that the malt house was destroyed by fire from a locomotive, but are not able to decide that the fire was caused by engine No. 14, then, and in that case, the plaintiffs cannot recover!” This the court declined to do, but, on the contrary, instructed the jury as follows : “If you find that this malt house was burned by reason of sparks escaping from the defendant’s engines, or any one of them, providing, as I said before, it was done negligent^, then the plaintiffs are entitled to recover.” And the court was further requested to charge “that there is no evidence imputing negligence to any particular engine except No. 14.” This request was also refused, and the defendant duly excepted to the several ruliugs. These exceptions, we think, were taken, and were ground upon which the motion for a new trial should have been granted. The several refusals to charge, and the instruction actually given, whether taken together or separately, plainly imply, and, in effect, instruct the jury, that there was evidence in the case upon which the defendant might be charged with actionable negligence in connection with either or both of the engines above mentioned other than engine No. 14. A fair test of the correctness of such an instruction may be applied by supposing that engine No. 14. and all the evidence relating exclusively to it, were eliminated from the case. It will not be contended that any case against the defendant would remain. The instruction may well have have been to the prejudice of the defendant. It opened the door for conjecture on the part of the jury, and enabled any juror, who was not satisfied to discredit the direct evidence given by the defendant’s,witnesses as to the actual condition of engine No. 14, to argue: “But no such evidence is given in regard to either of the other two engines, and, if the fire was not communicated by No. 14, it must have been by one of them, and the defendant is still responsible.” The fault of such reasoning is that, if the fire was communicated by either of the other engines, it happened—so far as the evidence shows — without negligence of the defendant; and the fault of the iusiructi'on complained of was that it assumed, contrary to the fact, that there was evidence of negligence in connection with the engines other than No. 14. For the error thus pointed out, we are of the opinion that the order denying the defendant’s motion for a new trial should be reversed.

Order appealed from reversed, and a new trial granted, with costs to abide the event. All concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Queen City Bank, Resp’t, v. M. Fillmore Brown et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Principal and surety—Recoupment.
    Where the principal and surety are sued together, a successful recoupment by the principal inures to the benefit of the surety, even though the surety could not, if sued alone, avail himself of the defense.
    Appeal from an order modifying a judgment in favor of plaintiff.
    , Loran L. Lewis, Jr., for app’lts; HugJ\ C. Sells, for resp’t.
   Haight, J.

This action was brought to recover the amount due on promissory note made by the defendant M. Fillmore Brown, indorsed by the defendant Libbie T. Brown, and discounted by the plaintiff. The defendant Libbie T. Brown did not appear or answer. The defendant M. Fillmore Brown answered, setting up a counterclaim in which he alleged that the plaintiff, in discounting this and other notes, had unlawfully and wrongfully compelled him to pay, for the use of the money, a greater sum than the rate of interest allowed by- law, and that by reason thereof the plaintiff hád become indebted to him in the sum of $45.46, which amount he desired to counterclaim upon the note, and thereupon he offered to allow the plaintiff to take judgment against him for the balance due upon the note. The offer was accepted by the plaintiff, and judgment entered against the defendant M. Fillmore Brown for the sum of $286.50, and against defendant Libbie T. Brown for the sum of $329.80. Thereupon a motion was made to correct the judgment by reducing the recovery against Libbie T. Brown to the amount of the recovery against M. Fillmore Brown. The special term ordered that the defendants, upon payment of the amount of the judgment entered against M. Fillmore Brown, with the interest thereon, to the plaintiff or its attorney, within ten days from the service of the order, should receive satisfaction and discharge of the judgment, but, if not so paid, the motion was denied, with $10 costs to the plaintiff. From this order the plaintiff appealed.

We do not understand that the relief asked for under the motion was discretionary with the special term, and it therefore had no right to impose the condition embraced in the order. But the defendants have not appealed. Therefore, the order may be permitted to stand, if they were entitled to the modification of the judgment asked for. It appears that the defendant Libbie T. Brown was the indorser, and as such became surety for the defandant M. Fillmore Brown, who was the maker of the note, and primarily liable for its payment. If she is compelled to pay the amount of the note, she has a right to recover the amount so paid from the principal. But her principal has agreed w'ith the plaintiff that the amount of his claim for unlawful interest collected from him by the plaintiff should be deducted from the amount of the note, and that judgment taken against him should be only for the balance due. If she is therefore compelled to pay the full amount of the note, and he to reimburse her for the amount so paid, he is thus deprived of the benefit of his agreement, and of his right of action against the plaintiff. We do not understand that this can be done. It is quite possible that his. counterclaim, as pleaded, could not have been allowed in that action, for the reason that his claim was in the nature of a penalty. But the plaintiff, by allowing it, and accepting his offer, in effect, credited that amount upon its claim upon the note, thereby reducing it to the amount for which judgment was entered against him. We understand the rule to be that, when the principal and surety are sued together, a successful recoupment by the principal inures to the benefit of the surety, even though the surety could not, if sued alone, avail himself or herself of the defense. Springer v. Dwyer, 50 N. Y. 19-22, Gillespie v. Torrance, 25 N. Y. 306. It follows that the defendants were entitled to the relief asked for in their motion, and that therefore the order should be affirmed, with $10 costs and disbursements. All concur.


text:
    Michael Rogers, Resp't, v. Peter G. Straub, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Trial—Jury.
    Where the defendant goes to trial and proceeds to its close, without objection, a claim made for the first time in the requests to find, that he was entitled to a jury trial, is too late.
    8. Evidence—Parol.
    Where the parties differ as to the meaning of a term in a contract, their* statement, at its execution, is competent to show their understanding.
    Appeal from a judgment in favor of plaintiff.

      George W Cothran, for app’lt; Edward 0 Hart, for resp’t.
   Haight, J.

This action was brought to recover pay for a quantity of stone which the defendant had taken and carried away from the plaintiff’s premises, the-annulment of two contracts, and an injunction restraining certain alleged trespasses on the lands of the plaintiff. The judgment awards damages for the stone taken, and an injunction restraining the defendant from in any way exercising, or attempting to exercise, any of the powers or privileges granted in and by the contracts, or either of them, and from in any manner interfering with the agricultural lands of the plaintiff.

It is now claimed that the special term, sitting as a court of equity, had no jurisdiction to hear and determine this action, but that it should have been tried in a court of law before a jury. The complaint, among other things, sets forth two contracts, the latter being a modification of the former, made between the plaintiff and defendant Straub, by which the stone upon plaintiff's farm, east of Hitchin’s bridge, abutting upon the Erie canal, was sold to the defendant, and an option given to him as to the stone lying west of such bridge; that he bad taken and carried away a large quantity of stone, and had not paid therefor; that the defendant had not performed the contract on his part; that he had committed numerous trespasses, and had deposited crushed stone upon the plaintiff’s agricultural lands, permanently injuring the same. The plaintiff demanded judgment for. the stone taken, that the contracts be decreed abrogated, and that the defendant be 'enjoined from thereafter prosecuting operations thereunder. The complaint was evidently ■prepared for the purpose of obtaining equitable relief, and some of the allegations are of an equitable nature, but whether they are sufficient we do not think we are called upon to determine. The allegations of the complaint are sufficient to authorize the recovery of a judgment for the contract price of stone sold and delivered. The answer contains no allegation to the effect that the plaintiff had an adequate remedy at daw. So far as the case shows, the defendant went to trial before the special term without raising any question as to the power of that court to hear and determine the same, proceeded with the trial to its close, submitted requests to find, and then in such respects, for the first time, made the claim that he was entitled to a trial by jury. We think this was too late; that, if he had a right to such a trial, he had waived the same. Town of Mentz v. Cook, 108 N. Y. 504, 508 ; 13 St. Rep., 845 ; Ostrander v. Weber, 114 N. Y. 95, 102 ; 22 St. Rep., 979; Weaver v. Haviland, 68 Hun, 376 381; 52 St. Rep., 311.

Upon the trial the plaintiff offered to show what the words “dimension stone” meant, as they appear in the contract. The court, under objection of the defendant, premitted the witness to answer as to what was said by the parties in reference to the meaning of such term at the time the contract was made. It is claimed that this evidence tended to vary the contract,"but we do not so understand it. Under the provisions of the contract the defendant was to pay $11 per canal-boat load for dimension stone, and $6 per canal-boat load for stone suitable for concrete, west of the Hitchins bridge. A question had arisen as to whether the stones taken were dimension stones or stones for concrete. The parties differed as to the meaning of the term, and it appears to us that their statement as to such meaning at the time the contract was entered into, as showing their understanding of the term, was competent.

Upon the cross-examination of the defendant he was required to state the amount he received per cord for such stone- in the city of Buffalo, and also the amount that he received for crushed stone. This doubtless would have been incompetent had the defendant not previously shown, upon his direct examination, what the same was worth. Again, it is claimed that the court should have found that the dimension stones were stones of a suitable size and quality to be cut so as to be used as first-class building stone; but upon this question we understand the evidence to be conflicting, that of the plaintiff differing from that of the defendant. It is ■claimed that the testimony of the defendant upon that subject is corroborated. But the first contract entered into between the parties contains the expression “of the larger sizes, or dimension stone.” Here we have the term “larger sizes” used synonymously with the term “dimension stone,” one term meaning the same as the other. This supports the plaintiff’s contention, and we do not think it is weakened by the later contracts where the term “dimension stone" alone is used.

The witness Mahoney testified to his keeping an account of the stone taken by the defendant, and of reporting the same to the plaintiff; that on one occasion the defendant asked him to report but two boat loads to every three taken. This evidence was given without objection, but a motion was subsequently made to strike " it out, which was refused. If the testimony, at the time it was given, was objectionable, it was subsequently made competent when the defendant was sworn ás a witness in his own behalf.

It appears from the exhibits in the case that at the time of the trial the defendant had transferred all his interests under the contracts with the plaintiff to the Buffalo Stone Company, and that that company had transferred its interest to the German Rock, Asphalt & Cement Company, Limited, of the city of Buffalo, and that company had entered into a new agreement with the plaintiff. Perhaps, under the circumstances, the trial court might properly have withheld the injunction, but we are unable to see how it does the plaintiff any good, or the defendant any harm. We think, therefore, that the judgment should be affirmed, with costs. All concur.


text:
    Walter L. Sessions, App’lt, v. Washington Palmeter et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Attobney and client—Compensation.
    In the absence of an agreement to the contrary, an attorney who, employed to contest a will, prepares, tries the case and submits it for decision, is entitled to his compensation without waiting until the decision is actually rendered.

      2. Evidence—Documentaby—Notice to pboduce.
    Notice to the attorney to produce a paper in the possession of his client, is sufficient to authorize secondary evidence of its contents.
    Appeal from a judgment of the county court reversing a judgment entered on a verdict in a justice’s court.

      Walter L. Sessions, in pro. per. ; A. Hazelline, for resp’ts.
   Haight, J.

The defendant Jane Palmeter was a sister and heir -at law of Alice G. Bentley, deceased, and, as srtch, contested the admission of her will to probate before the surrogate, Chautauqua county. The plaintiff was employed by defendants to conduct such contest. The evidence tends to show that he was employed by both of the defendants, who are husband and wife, and a ease was prepared, tried, and submitted to the surrogate upon written briefs. Thereupon the plaintiff rendered a bill for his services, in which he charged them $125, and inclosed a note for that amount, which he requested them to sign and return, stating they could get the note extended if they so desired. That they did not return the note, or afterwards call upon him, until a week before this action was brought, at which time Mrs. Palmeter called upon him at his office, and said that she did not wish to give a note. That he thereupon said to her that he should be in his office on Thursday of the next week, and that he wanted her to come in and fix the matter up at that time. That she found no fault with the amount of the claim, but did not come near at the time fixed. And that no portion of his claim has been paid. The defense was that the claim was not due, and that the plaintiff had agreed to charge nothing in case the contest was not successful. The surrogate-had not, at the time of the trial, rendered his decision, and no decree upon the contest had been entered by him. The jury rendered a verdict in favor of the plaintiff for the sum of $100, thus disposing of the controverted question of fact in the case. The county court reversed the judgment, upon the ground that the plaintiff's employment was not terminated until the decision of the surrogate and the decree was entered thereon. It was the duty of the surrogate to make and file in his office his decision in writing, in which he must state separately the facts found and the conclusions of law. Code Civil Proc. § 2546. He is also required to keep a book in his office in which he must record his decrees. Section 2498. It is the usual practice for him to prepare and record his own decrees. The plaintiff’s services were therefore substantially performed at the time he rendered his bill. But assuming the rule to be that an attorney who is retained generally to conduct a legal proceeding enters into a contract to conduct the proceeding to its termination, he cannot abandon the services of his client without justifiable cause and reasonable notice, it does not follow that he is not entitled to compensation, from time to time, for the services rendered, unless, by the agreement, a fixed sum has been stipulated for conducting the proceedings to the termination. In Tenney v. Berger, 93 N. Y. 524-529, Earl, J., in delivering the opinion of the court says:

“If a client refuses to advance money to pay the expenses of the litigation, or if he unreasonably refuses to advance money, during the progress of a long litigation, to his attorney, to apply upon his compensation, sufficient cause may thus be furnished to justify the attorney in withdrawing from the service of his client.”

The plaintiff’s claim is upon quantum meruit, and is prosecuted upon the theory that no express agreement was made as to the compensation that should be paid for his services. There was no evidence that he had abandoned his client’s case. He had performed all the services he could render down to the time of the entering of the decree. He had rendered his bill for such services, and no objection had been made thereto as to the amount, or to the effect that it was not due at the time the action was brought. We think, therefore, that, under the circumstances his judgment should have been permitted to stand.

Upon the trial an exception was taken as to the admission of oral evidence as to the contents of the letter sent to the defendants in which he rendered his bill. It appears that Mr. Hazeltine appeared for the defendants before the justice, and made oath that he was authorized to appear for them ; that thereupon notice was served upon him to produce the letter upon the trial. Upon the trial the plaintiff demanded the production of this letter, which was refused. We think that this was sufficient to authorize the giving of oral evidence as to its contents. The judgment of the county court should, be reversed, with costs, and that of the justice affirmed.

All concur.


text:
    Charles W. Van Vleet, App’lt, v. W. Martin Jones, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18,1894.)

    Corporations—Trustees.
    In an action against a trustee, under section 15, chap. 40 of 1848, an overvaluation by the original corporators of the property put in by them, does not violate the statute unless they, in bad faith, put a fictitious value upon it for the purpose of evading the statute and defrauding others, and a trustee is not liable unless he knew of such misconduct on their part.
    Motion by plaintiff for a new trial on exceptions, ordered to be heard at the general term in the first instance, after a nonsuit.

      Arthur M Sutherland, for pl’ff; W. Martin Jones, in pro. per.
   Haight, J.

This action was brought by the plaintiff, as a creditor of the Rochester Lithographing & Printing Company, a corporation organized under chapter 40 of the Laws of 1848, and the several acts amendatory thereof, to recover the amount of such credit of the defendant, as one of the officers and directors of such corporation, by reason of an alleged false certificate made by him, as such officer, under the statute. The certificate is as follows:

“We, the undersigned stockholders and directors of the Rochester Lithographing & Printing Company, do hereby certify that the capital stock of the said the Rochester Lithographing k Printing Company is and was fixed at $50,000, and that the same is now fully paid up; that the last and final payment of the capital stock of said company, being the sum of $1,800.00, due from one of the members of said company, was paid into the treasury of said company on the first day of April, 1889; and that there now remains due and owing to said company upon said capital stock, from the stockholders thereof, no sum whatever. Dated, Rochester, IST. Y., April 27, 1889.”

The certificate is signed by the defendant and four other directors of the corporation, and an affidavit is attached, in which they swear that the certificate is truc. The defendant was the president of the corporation. The statute referred to, among other things, provides:

“§ 10. All the stockholders of every company incorporated under this act shall be severally and individually liable to the creditors of the company in which they are stockholders to an amount equal to the amount of stock held by them respectively for all debts and contracts made' by such company, until the whole amount of papital stock fixed and limited by such company shall have been paid in and a certificate thereof shall have been made and recorded as prescribed in the following section. And the capital stock so fixed and limited shall be paid in, one half thereof within one year and the other half within two years from the incorporation of said company, or such corporation shall be dissolved.”
“§ 11. The president and a majority of the trustees within thirty days after the payment of the last installment of the capital stock so fixed and limited by the company, shall make a certificate stating the amount of the capital stock so fixed and paid in, which certificate shall be signed and sworn to by the president and a majority of the trustees and they shall, within said thirty days, record the same in the office of the county clerk of the county wherein the business of the said company is carried on.”
“§ 15. If any certificate or report made, or public notice given by the officers of any such company in pursuance of 'the provisions of this act, shall be false in any material representation, all the officers who shall have signed the same knowing it to be false shall be jointly and severally liable for all of the debts of the company contracted while they are stockholders or officers thereof.”

It is claimed that the certificate is false, for the reason that, at the time the corporation was organized, the capital stock was issued for property not worth an amount equal to the par value of the stock issued, and that subsequently a stock dividend of 15 per cent, was made.

The corporation was organized on the 5th day of May, 1887. The plaintiff and five other gentlemen were the'original incorporators. At that time stock to the amount of 275 shares was subscribed for. It appears that the printing establishment owned by the firm of Groble & Bredenburg, with the lithographing establishment owned by the firm of Willard, Pitt & More, were united together, and the plants of the two concerns were transferred to the corporation. The printing establishment was put into the corporation at $11,000, subject to an indebtedness of $1,000. and $10,000 of the stock of the corporation was issued to Messrs. Groble & Bredenburg, each taking fifty shares in payment therefor. The lithographing plant was put into the corporation at $36,130.29, subject to an indebtedness of $25,180.29, and the stock of the corporation was issued to Mr. Pitt,who had become the owner of the interest of Willard and More therein, for the balance—$11,000. The corporation so organized entered upon the transaction of business, and continued for the space of about six months, at which time it declared a dividend of fifteen per cent., and the same was paid to the stockholders in the capital stock of the company. Subsequently, and on the 7th day of February, 1888, the president of the corporation transferred the stock belonging to him to the defendant,who was thereupon elected its president. It further appears that, in June following, the company became embarrassed, and several suits were brought against it upon claims that had matured ; that thereupon the defendant purchased the outstanding stock held by the stockholders for five cents on the dollar of their par value, and then took the remaining stock which had not been previously issued, paying par therefor, amounting to the sum of about §12,000, and with this additional capital carried on the business of the corporation until its failure, in October,! 890. It further appears that, after the owners of the two plants had agreed upon the uniting of them in one business, the defendant was called in as attorney for the parties, and directed to prepare the necessary papers for forming the corporation; that, while he thus became informed of the details of the agreement made by the owners of the plants, it is not claimed that he then had any knowledge of the value of the property so put into the corporation, or that it was put in by the owners at an overvaluation thereof; but it claimed that in June, 1888—the time of the financial embarrassment of the corporation—he then became aware of the fact that the property of the firms had been overvalued in putting it into the corporation. The plaintiff’s evidence upon this branch of the case was chiefly given by the witness Pitt, who was one of the original incorporators and the manager of the company. His testimony is to the effect that the printing establishment was overvalued in the sum of $4,000, and the lithographing company was(overvalued in the sum of $5,000. He, however, states that at the time of the forming of the corporation the lithographing company was actively engaged in carrying on that business, and the same was regarded by them as flourishing; that the printing establishment was also actively engaged in carrying on its business, and that it was regarded as a successful printing establishment; that they regarded what is commonly known as the “good will” of the establishments valuable, independent, of their property interests ; that the property of the two concerns was put into the corporation at its original cost value, estimating that the good will of the business would made up for the depreciation in the value of the property by its use. None of the other corporators were called as witnesses upon this question. The only evidence tending to show that the defendant knew about this appears from the testimony of Pitt as to a conversation he had with the defendant at the time of the financial embarrassment of the company in June, 1888, and is as follows :

“Mr. Jones said that he had come into the company on my representations, and that he believed that I had deceived him in regard to the stock dividend, and he asked me the price paid for a particular press. He said: ‘You told me that the company had declared a stock dividend of fifteen per cent, and had earned it.” I don’t think I said anything in reply. I was not talking at that time. I believe he also asked me where I got the price of the Potter press, one of our presses in the lithographing room. I told him I made the inventory from an invoice we had. That is all that I remember that was said at that time on the subject of the property. He criticized the exchange of some notes of the lithographing company for those of C. M. Green of Fairport. That was about my management of the company. " Mr. Jones, in a general way, criticised me about the property which was originally taken by the company for stock. I cannot tell what he said. The substance of what he said in those general criticisms was that he claimed that I had deceived him in regard to the value of the property and the value of the plant, speaking in general terms; that I had deceived him as to the value of the plant in inducing him to come in, and telling him that we had made a stock dividend of fifteen per cent. He said that I had overestimated, or overvalued, the property, in putting in there—in making up the stock company.

It is upon this evidence that the plaintiff seeks to establish the fact that the defendant, in certifying that the stock of the corporation has been fully paid in, certified to that which he knew to be false. Let us consider the .circumstances under which this conversation took place. In February, preceding, the defendant had been induced to purchase a block of stock, and to accept the presidency of the corporation. Its business at that time had been represented as flourishing, and that a 15 per cent, dividend had been earned and paid. In June following he found the company in financial embarrassment, unable to pay its maturing obligations, with several suits on hand. Under these circumstances, he was complaining to the witness, who was the person who had induced him to join the company. He made inquiry in reference to the value of certain presses, and questioned him as to the truthfulness of his representation as to the dividend; complained of his conduct as manager in exchanging notes of the company for those of G. M. Green ; criticised him in a general way in his conduct of the business; and accused him of overestimating the value of the property put into the company. Is this sufficient to sustain a finding of willful false swearing ? Did the defendant then know that the incorporators intentionally evaded the statute, and perpetrated a fraud upon those who should after-wards become creditors of the corporation ? Let us follow him further. He at this time takes a transfer to himself of all the stock of the other stockholders, paying them $5 a share therefor. He thus assumes all of the liability of the corporation. He then pays into the treasury $12,000, or thereabouts, in cash, taking up the unissued stock, and, after taking into the corporation some of his friends, makes the certificate in question, required by the statutes, and proceeds with its business. Would he have done this had he known that the incorporation was fraudulent from the beginning? Under the statute, the capital stock has to be paid in within two years from the incorporation; if not, the statute provides that the corporation shall be dissolved. ' The two years were nearly up. The books showed the stock to be' full paid. It was full paid, unless the original incorporators had fraudulently overvalued the property put in by them. We are not satisfied that he knew that this was done. Such knowledge is not consistent with the subsequent action. The acts of the incorporators must be fairly considered, and the statute under which they acted given a reasonable interpretation. The owners of the printing business might have thought the same to be worth more than it really was, and the same may have been true as to the owners of the lithographing -establishment. It was natural that they should want to realize for their property all that it was worth. They had the right to demand and receive this. They did not violate the statute unless they, in bad faith, put a fictitious value upon their property for the purpose of evading the statute and defrauding others, and the defendant is not liable unless he knew of such misconduct on their part. Whitney Arms Co. v. Barlow, 63 N. Y. 62 ; Pier v. Hanmore, 86 N. Y. 95; Bonnell v. Griswold, 89 N. Y. 122 ; Whitaker v. Masterton, 106 N. Y. 277—281; 8 St. Rep. 888. Upon the trial the plaintiff asked the witness Pitt if the defendant said anything to him in June, 1888, at the time of his purchase of the stock, about the value of the stock. This was objected to by the defendant, and thereupon the plaintiff offered to show that the defendant stated that the stock was absolutely worthless. The objection was sustained, and an exception was taken by the plaintiff. We think the evidence might have been properly admitted, but do not consider its exclusion such an error as requires a new trial. The conversation called for was at the time the defendant was purchasing the stock of the other stockholders. It appears that he purchased their stock, paying five cents oh the dollar therefor. It thus appears from the transaction itself that the stock was nearly worthless: and if, in that connection, he made the statement that it was absolutely worthless, it would not operate to. change our view of the case. In that connection the trial court made a statement to the effect that he should hold that the knowledge of the defendant in June, 1888, of the intentional overvaluation by the incorporators, was not a material fact in the case. This view we do not wish to be understood as indorsing. As to the 15 per cent, dividend, it appears from the testimony that it had been earned, and the books of the company so show. Whether the plaintiff was misled by the certificate, or is estopped from claiming that there was an overvaluation by reason of his being one of the original incorporators, we do not deem it necessary to consider. The motion for a new trial should be denied, with costs, and judgment ordered for the defendant upon the non-suit. All concur.


author: Per Curiam.

text:
    Hannah Little, App’lt, v. Rose Wirth, Resp’t.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    Landlord and tenant—Icy sidewalks.
    There is no duty on the part of the owner to the tenant to remove ice and snow from the sidewalk in front of the demised premises.
    Appeal from an interlocutory judgment sustaining a demurrer.
    The opinion of Me Adam, J., is as follows:
    Applying the maxim, causa próxima non remota spectatur, the plaintiff is without a cause of action against the defendant, unless the latter, as owner of a tenement, is liable to the plaintiff, as her tenant, because she slipped upon the ice on the walk or stoop of her house; and there is no such liability. The authorities are uniform that there is nó duty on the part of an owner to a tenant or the public to remove from the steps or walk the ice and snow which naturally accumulates thereon. Woods v. Cotton Co., 134 Mass. 357; Watlcins v. Goodall, 138 Mass. 533 ; Purcell v. English, 86 Ind. 34; Shindelbeck v. Moon. 32 Ohio St. 264. And in our own state, see Fuchs v. Schmidt, 8 Daly, 317; Moore v. Gadsden, 93 N, Y. 12 ; 87 N. Y. 84; Wenzlich v. McCotter, id. 122 ; City of Rochester v. Campbell, 123 N. Y. 405; 34 St. Rep. 77. If the plaintiff has any remedy, she must seek it from the municipality for neglect. The demurrer must therefore be sustained, and judgment directed in favor of the defendant, with costs.

      J. H. Far gis, for app’lt; Welch & Daniels, for resp’t.
   Per Curiam.

The judgment appealed from was entered in due conformity with the order sustaining the demurrer, and the notice of appeal does not ask for a review of the order. But, independently of that, the judgment is right upon the merits, and should be affirmed upon the opinion rendered by the learned judge below. Judgment affirmed, with costs.


author: Gildersleeve, J

text:
    Thomas Commerford Martin, App’lt, v. William J. Johnson et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    Appeal—Findings.
    A judgment dismissing the complaint will not he disturbed, where it is supported by the findings, in the absence of an appeal from refusals to find facts in plaintiff’s favor.
    Appeal from a judgment in favor of defendants.
    The opinion of Hamilton Odell, Esq., the referee before whom the cause was tried; is as follows :
    The complaint set forth an agreement made between the plaintiff and the defendant Johnston, and alleges a breach thereof by said defendant, and the relief demanded is that the plaintiff recover of said defendant the sum of $2,500 and interest, and that the defendant be required to specifically perform the said agreement in part, by the delivery to the plaintiff of twenty shares of the stock of the defendant the W. J. Johnston Company. For several years-prior to the making of said agreement, the defendant Johnston had been the proprietor and publisher, in the city of New York, of a newspaper called The Electrical World, and the plaintiff had been employed as one of the editors thereof. In the latter part of the year 1888, Johnston determined to form a corporation for the purpose, among other things, of conducting and publishing said paper, and such corporation (the defendant the W. J. Johnston Company) was in fact formed in January, 1889, with $250,-000 of capital stock, all of which was issued to Johnston in exchange for property transferred by him to the company. The agreement referred to was made on the 26th of December, 1888. It was to go into effect on January 1, 1889, and was terminable by either party at the end of any year, upon a written notice of thirty days. Martin agreed to undertake the editorship of the said Electric World, and to devote his entire time and attention to the duties of that position and the interests of the contemplated. W. J. Johnston Company, at a yearly salary of §2,500. He further agreed to be diligent and faithful in the discharge of his said duties, and to do no act or thing whereby the business of the said W. J. Johnston Company should suffer any damage or loss while he continued to be so employed, and that he.would not “lend or give his name for use to any electrical corporation or company, as director, officer, trustee, or otherwise,” nor “ purchase or hold any stock or certificates of stock in any electrical corporation, company, or partnership, or become interested therein, without first obtaining the written consent of the party of the first part, (Johnston), nor, while in said employment, “ devote any of his time or attention, during business hours or otherwise, in the interests or to the advantage, of any other corporation, company, person, firm, electrical or otherwise, without the consent of the party of the first part, of a majority of the directors of the W. J. Johnston Company.” And it was expressly declared that these covenants, or some of them, on the part of .Mr. Martin, were made “solely for the purpose of protectiug the independence, reputation, and standing of The Electric World, as the connection, in any way, of an officer or employe of the W. J. Johnston Company with any other electrical corporation, company or partnership, might seriously injure said Electric World and the business of the W. J. Johnston Company.” Upon his part the said Johnston agreed to transfer to Martin 100 shares of the capital stock of the said company which should be retransferred by Martin to Johnston, to be held in trust by him, and twenty of said shares should be surrendered to Martin at the end of each year of the continuance of the agreement; and Johnston further covenanted and agreed that “ if, during the years 1889, 1890, and 1891, the dividends upon the said stock do not reach the sum of $2,500 per annum, he (the said Johnston) will make up to said Martin the deficiency upon the stock owned by him.” During 1889 the plaintiff performed his stipulated duties and received his salary from the company, and at the close of the year the defendant Johnston, as the agreement required, delivered to him 20 of the said shares of stock. He was also paid dividends for that year upon the 100 shares, amounting to $2,500. By this time differences had arisen between the two. The attitude of each towards the other was uncomfortable, if not hostile. The plaintiff testifies that he was not at fault, and charges the defendant with improper interference with him in his editorial duties, with a denial of his rights as a stockholder and officer of the company, and with other unreasonable conduct. The defendant testifies that he was not at fault, and accuses the plaintiff of insolence, inattention to business, and insubordination. Of course, (it is always so,) both parties were more or less to blame, but it is not necessary for me to determine which was the greater offender. There was serious trouble between them on the 7th of February, 1890, and on subsequent days, and on the 5th of March, after a rather spirited altercation, Martin received from Johnston the following letter of dismissal: “ Your services as editor of the World will not be required after to-day. If you have any personal belongings at the office, please remove them this afternoon. The cashier will pay you on Saturday the amount due you for salary.” This letter was either accompanied or swiftly followed by an intimation from Johnston that, if the plaintiff did not retire peaceably, he would be forcibly ejected. A formal tender of further services under the agreement was made by Martin, and refused by Johnston. Thereupon Martin quietly accepted the situation, received from the company the salary due him, and very soon afterwards entered the service of the Electrical Engineer, as editor of that journal.
    There is n.o direct testimony to that effect, but it is to be fairly inferred that Martin regarded his contract relations with Johnston as terminated by his discharge, and by Johnston’s refusal to permit him any longer to serve as editor of the World. It may be safely said that no action like the present would have been instituted by the plaintiff had not the defendant, on June 7,1890, three months after the plaintiff’s dismissal, written to the plaintiff as follows: “ Please to take notice that I elect to terminate, at the end of this year, the contract between us, dated December 26th, 1888.” This, the plaintiff insists, was a distinct admission by the defendant that the said contract had not been terminated by anything that had gone before, but was still in force, and would continue iti force, until the expiration of the time limited in the defendant’s notice; and that it was also a waiver of any part default or breach of duty on the part of the plaintiff, of which the defendant might have availed himself to terminate the contract. Both of these propositions may be admitted without removing or reducing the difficulty which, it seems to me, stands in the way of the plaintiff's recovery in this action. It is a settled rule of law that neither party to a contract can enforce it against the other without showing performance, or an offer or willingness and readiness to perform, on his part. In 1lay v. Schuyler, 43 1ST. Y. Supr. Ct. 107, the court said: “ Where the right to compensation depends upon a special contract, the plaintiff must perform the undertaking assumed by him; and, no matter what the terms and conditions may be upon which the right to compensation depends, they must be performed as a condition precedent to .a right of action for the recovery of the specific compensation.” This does not mean a literal performance in every particular and detail. A substantial performance is all that is required. Woodworth v. Fuller, 80 FT. Y. 315. The same rule prevails in equity. A party who seeks to enforce a contract must show performance, or its equivalent, on, his own part, before he becomes entitled to relief. Pom. Eq. Jur. § 1407; Story, Eq. Jur. § 771; Jones v. Lynds, 7 Paige, 301; Burling v. King, 66 Barb. 633; Crane v. Decamp, 21 FT. J. Eq. 414; Boone v. Iron Co., 17 How. 343; Marble Co. v. Ripley, 10 Wall. 357; Stewart v. Railroad Con 7 Smedes & M. 568; Wait v. Rogers, 2 Abb. Pr. 261. It is the duty of the court to inquire how far the reciprocal obligations of the party seeking relief have been fairly and fully performed. Story, Eq. Jur. §736; Grane v. Decamp, 21 N. J. Éq. 414. “ If the plaintiff’s simple negative conduct—his neglect to do what he has undertaken to do —is sufficient to prevent his obtaining the remedy of specific performance, much more does the same result follow from his affirmative acts' which are in direct violation of the contract. ” Pom. Cont. | 354. Whatever the plaintiff was entitled to receive under the agreement of December 26th, whether salary, stock, or dividends, was in the way of compensation for the services which he was engaged to render. His right to demand salary, stock, or dividends was conditioned upon performance of his duties, and his observance of the covenants, assumed by him by that agreement. That the defendant had the right to rescind the agreement for sufficient cause is not disputed. Neither is it disputed that on the 5th of March he assumed or attempted to exercise that right Whether the defendant’s action on that day in notifying the plaintiff that his services as editor of the World were no longer required, and his subsequent action in refusing to accept further services from the plaintiff, were justified by any misconduct or default on the part of the plaintiff, has been a matter of prolonged and vigorous contention between the parties before me. In the view which I take of this ease it is not material whether the plaintiff was rightfully discharged, or whether the defendant’s notice of June 8th operated to prolong the agreement of December 26th until the expiration of 1890. I shall assume that the agreement was in force during the wole of the last-mentioned year, and that each party continued bound to the other according to its terms.
    Here may be mentioned another well-settled rule of law. When one party to a contract refuses or fails to perform, it is the duty of the other party so to act that the damages to the defaulting party shall be made as light as possible. Johnson v. Meeker, 96 N. Y. 97. But a servant wrongfully discharged is bound only to use reasonable diligence to procure other employment, and he is not required to accept employment of a different character, or employment of any kind in a different locality. Castigan v. Mohawk <Sc H. Railroad Co., 2 Denio,609; Fuchs v. Koerner, 107 N. Y. 529; 12 St. Rep. 318. The contract of service remains in full force in his favor, although broken by his employer, and his remedy is to treat it as continuing, and sue for damages for the breach. Howard v. Daly, 61 N. Y. 869; Weed v. Buri, 78 N. Y. 198. In computing bis damages, account will be taken of wages received by him from other employment after his dismissal, and down to the expiration of the contract, or of wages that he might have earned in similar employment offered to him and refused, or which he might have obtained by the exercise of reasonable diligence. Castigan v. Mohawk & H. Railroad Co., 2 Denio, 616. But the agreement between master and servant may be much more than a mere promise by one to pay a stipulated sum for services promised by the other ; and, although the servant may be wrongfully discharged, he may not be thereby released from the observance of covenants or conditions in the agreement contained, and may forfeit his right to damages by his own violation of the agreement upon which he founds his action against his employer. Mention has already been made of the provisions of the contract in question by which the plaintiff bound himself, during the continuance thereof, to do no act or thing whereby the business of the W. J. Johnston Company should suffer any damage or loss, directly or indirectly, and not to lend or give his name for use to any electrical corporation or company, or to become interested, as stockholder or otherwise, in any electrical corporation, company, or partnership; and of the express declaration of the contract that such provisions were made “solely for the purpose of protecting the independence, reputation, and standing of the Electrical World, as the connection, in any way, of an officer or employe of the W. J. Johnston Company with any other electrical corporation, company, or partnership might seriously injure said Electrical World and the business of the W. J. Johnston Company." It appears from the proofs that, within about 10 days from the date of his dismissal by the defendant, the plaintiff entered the employment of a corporation called the Electrical Engineer; that about the 1st of April he became the editor of a paper published by said corporation, and bearing the same title; that he has ever since remained in such employment and so employed; and that he is also a stockholder in said corporation, although the date of his becoming such has not been shown. It further appears that the Electrical Engineer is a rival paper to the Electrical World, occupying the same field, and competing with the World for support from the same source and the same class of patrons. This brings into a clear light the question whether the plaintiff has so kept his agreement with the defendant that he has a right to require of the defendant a strict performance upon his part. Has he so done equity that he has a right to ask it?
    It seems to me that the wrongful discharge'—-if it was wrongful—of the plaintiff did not- relieve him from his engagement not to become interested in or identical with a competing electrical corporation or company. He cannot insist that his agreement with Johnston remained in force as to Johnston’s covenants, but was no longer obligatory upon himself. He cannot excuse his entering the service of a rival corporation by the plea that the law required that he should do what he could to reduce tlio defendant’s loss, because the defendant, by the agreement, had prohibited him from entering such service. I cannot see upon what ground the plaintiff can come into a court of equity, alleging that this agreement was in force until the close of 1890, and claim a specific performance of it by the defendant, when it appears by undisputed testimony that he (the plaintiff), from about the date of his dismissal to the end pf the year, was disregarding his own agreements, and engaged in aiding and building up an enterprise which was rival, if not hostile, to the W. J. Johnston Company. A decree for a specific performance is never a matter of right. It rests in judicial discretion, and may be granted or withheld upon a consideration of all the circumstances. Miles v. Dover

      Furnace Iron Co., 125 N. Y. 297; 35 St. Rep. 14; Margraf v. Muir, 57 N. Y. 158 ; Burling v. King, 2 Tlioinp. & G. 545; Gale v. Archer, 42 Barb. 320 ; Martin v. Platt, 5 St. Rep. 290; Marble Go. v. Ripley, 10 Wall. 357. That discretion should never be exercised in favor of a plaintiff who “ has so conducted himself as to destroy all claim to its interposition.” St. John v. Benedict, 6 Johns. Gh. 111. For reasons stated above, the defendant is entitled to judgment dismissing the complaint.

      Masten & Nichols, for app’lt; Thomas J. Keigharn, for resp’ts.
   Gildersleeve, J

This is an appeal by plaintiff from a judgment entered in favor of defendants upon the report of a referee dismissing the complaint. The action was brought to compel the specific performance of a written contract. The complaint contains the usual allegations of due performance of all the conditions, covenants, and agreements to be kept and performed by plaintiff, and charges that the defendant Johnston failed to keep and perform the contract on his part. None of the evidence taken before the referee appears in the record, as the case comes up on exceptions filed to the referee’s report. The plaintiff has not appealed from the referee’s refusals to find the facts in plaintiff’s favor, and plaintiff must therefore be held to acquiesce in the conclusions of fact reached by the referee. Has the learned referee, upon the facts as found, reached a correct conclusion of law ? The determination of this question seems to be the sole duty of the general term. In the sixteenth finding of fact the learned referee finds “ that the plaintiff failed to observe, and plainly violated, the promises and agreements made by him in the said agreement.” The learned referee holds that the plaintiff is guilty of affirmative acts in violation of the contract. This is an insurmountable obstacle in the way of plaintiff’s success upon this appeal. Such a finding calls for the dismissal of the complaint. It would seem that plaintiff’s proper course would have been to treat the contract as continuing, and sue for damages for the breach by defendant Johnston. All we now decide, however, is that, upon the facts as found by the referee, the complaint was properly dismissed. For these reasons, and for the reasons set forth in the opinion of the learned referee, which appears •in full in the papers before us, the judgment must be affirmed, with costs.


author: Yan Wyok, J.

text:
    Meinrad Keck, Resp’t, v. Francis Gross et al., App’lts.

      (Brooklyn City Court, General Term,

      Filed January 22, 1894.)

    1. Arrest—Subety—Liability.
    A failure to have the undertaking on arrest marked “Approved,” will not relieve the sureties of liability thereon.
    9. Same—Remedy.
    The arrested party can, in the first instance, resort to the undertaking, without pursuing his remedy against the arresting party.
    Appeal from a judgment in favor of plaintiff.

      M. L. Toiuns, for app’lts; Max Hallheimer, for resp’t
   Yan Wyok, J.

This is an action on an undertaking given in pursuance of sections 559 and 730 of the on an order of arrest granted against this plaintiff in another action, in which there was a judgment in favor of this plaintiff (the defendant therein) for costs. The defants herein demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. An order was granted, giving plaintiff judgment on the demurrer as frivolous, in pursuance of section 537 of the Code of Civil Procedure. This is an appeal from that order. We think the complaint sufficiently sets forth that the undertaking was duly given in pursuance of section 559 of the Code of Civil Procedure on the order of arrest. The failure of the plaintiff in the action in which the order of arrest was granted to have the undertaking marked “Approved ” by the judge will not relieve the sureties of responsibility thereon. Gopsill v. Decker, 4 Hun. 625 : Candee v. Wilcox, 14 Wkly. Dig. 245. The party so arrested can resort, in the first instance, to the action on the undertaking, without pursuing his remedy against the party procuring the arrest. Wilson v. Field, Id. 378. Order appealed from must be .affirmed, with costs and disbursements, to be taxed by the clerk.


text:
    Kate Burkard, Resp’t, v. City of Brooklyn, App’lt.

      (Brooklyn City Court, General Term,

      Filed January 22, 1894.)

    Eminent domain—Rights of mortgagee.
    A purchase under the foreclosure of a mortgage, before the enactment of chap. 559, laws of 1871, operates as an assignment of ai award for portion of the lots subsequently taken for the widening of the'adjacent street.
    Appeal from a,judgment in favor of the plaintiff.

      Almet F. Jenks, for app’lt; Wager d? Acker, for resp’t.
   Yan Wyok, J.

Plaintiff sues to recover an award made for land taken in widening North Second street in this city, under an act passed April 19, 1871, (Laws 1871, c. 559.) From a judgment in favor of plaintiff this appeal is taken. The plaintiff’s right to the award rests upon a mortgage made by the owner of the land so taken, prior to the passage of the act, and foreclosed, and the property sold thereafter. That this operated as an assignment of the award to such purchaser has already been decided by this court. Delap v. City of Brooklyn, 3 Misc. Rep. 22; 51 St. Rep. 128; Englehardt v. City of Brooklyn, 3 Misc. Rep. 30; 50 St. Rep. 572. The trial court completely protects the defendant from ' subsequent mortgages to the one through which plaintiff claims title by enjoining the execution of the judgment until they shall be properly satisfied of record. Judgment must be affirmed,, with costs.


author: Finch, J.

text:
    Louis Ettlinger, Resp’t, v. The Persian Rug and Carpet Company, and Theodore Schumaker, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Trusts—When beneficiary may sue.
    Any emergency, which makes a demand upon the trustee futile or impossible, and leaves the right of the beneficiary without other reasonable means of redress, justifies his appearance as plaintiff in a court of equity to enforce the trust.
    2. Same—Power of court to control.
    Where nothing remains to be done under a trust but to wind it up and distribute the assets, the court itself will take hold of.the trust, dictate and control its performance, at the suit of a beneficiary as well as of the trustee.
    3. Appeal—Judgment absolute.
    Danger of stipulation for judgment absolute.

      Francis B. Chedsey, for app’lt; Thomas B. Wiclces, for resp’t.

       Affirming 49 St. Rep , 408.

   Finch, J.

The determination of a single question discussed on the argument will dispose of this appeal. The plaintiff was one of two bondholders protected by a trust mortgage. His complaint showed all the facts necessary to a judgment of foreclosure if the action had been brought by the trusteee, and sought to justify his intervention as bondholder and plaintiff in the action upon the ground that the trustee had left this country, and was somewhere in foreign parts, and had become insane. On the trial the fact of such absence was shown ; that the family of the trustee had also departed to join him abroad, and that inquiries made in natural and reasonable directions was answered by the statement that the trustee had become insane. The special term dismissed the complaint upon the ground that the bondholder could not sue where there was a competent trustee unless the latter refused to act, and where the trustee had become incompetent it was necessary first to procure the appointment of anew trustee. The dismissal of the complaint did not go upon any failure of proof, but assuming the allegations of the complaint to have been established, still held that the. plaintiff could not sue for a foreclosure. An appeal was taken to the general term, which reversed the judgment and ordered a new trial. Instead of going back and presenting his defense so far as he had one, the defendant, who was the remaining bondholder, and for whose interest a foreclosure was as much of a necessity as for that of the plaintiff, adopted the perilous experiment of an appeal to this court, with the required stipulation for judgment absolute. It appeared on the argument that the defendant was injured only at a single point—not by the foreclosure, not by its natural and proper result, not even by the appointment of a temporary receiver, but by a sale of the property claimed to have been collusive, and which vested title in the plaintiff for less than the real value. All that could have been remedied on a new trial. A resale could have been ordered, or the plaintiff compelled to account for the property at its just and fair value, which would have given to the defendant everything to which he was entitled. Seeing the situation, and observing the defendant’s danger, we suggested to his counsel on the argument the prudence of escaping it by a withdrawal of his appeal. He declined the suggestion, and if any hardships results it will not be the fault of the court.

We are satisfied that the plaintiff had the right to maintain the action, and the fact alone justified the reversal of the judgment by the general term. It is conceded that the beneficiary may sue where the trustee refuses, but that is because there is no other remedy, and the right of the bond-holder otherwise would go unredressed. The doctrine does not rest rigidly upon a technical ground, but upon a substantial necessity. In the case of a corporation, a stockholder may sue, not because it refuses, but because those who represent it are the very parties who have committed the wrong. Brincherhoff v. Bostwick, 88 N. Y. 52. In that case we said that a demand upon the corporation to sue would be “futile” :and so was “unnecessary,” and since the action could not be “effectually prosecuted in that form,” the shareholders might sue. What occurred in the present case was tantamount to and equivalent to a refusal by a trustee. He had gone beyond the jurisdiction ; the whole apprehended mischief would be consummated before he could be reached; and if reached there was sufficient reason to believe that he was incompetent. But the special term say that in such event a new trustee should have been appointed. That simply reproduces the same difficulty in another form, for a court would hardly remove a trustee without notice to him and giving him an opportunity to be heard. And why should a new appointment be made when any one of the bondholders can equally do the duty of pursuing the foreclosure ? The court, in such an action, takes hold of the trust, dictates and controls its performance, distributes the assets as it deems just, and it is not vitally important which of the two possible plaintiffs set the court in motion. The bondholders are the real parties in interest; it is their right which is to be redressed, and their loss which is to be prevented; and any emergency which makes a demand upon the trustee futile or impossible, and leaves the right of the bondholder without other reasonable means of redress should justify his appearance as plaintiff in a court of equity for the purpose of a foreclosure.

It is unnecessary to consider or discuss other questions, which were numerous. What we have said requires us to affirm the order of the general term and award judgment absolute against the defendant upon his stipulation, with costs.

All concur.


text:
    Margaret Cotton, Resp’t, v. Christina Burkelman, App’lt.

      (Court of Appeals,

      Filed April, 1894.)

    1. Will—Construction—Power op sale.
    When the primary object of a power of sale is to benefit the life tenant and not the remainder man, the death of the latter leaves the power, if unexecuted, still existent and capable of execution.

      2. Same—Executors.
    A power of sale may be vested in executors, as such, to be exercised for their own benefit as individuals
    Appeal by defendant from an order of the general term of the superior court of the city of New York, reversing the judgment of the trial term dismissing the plaintiff’s complaint.

      Hamilton II. Squier, for app’lt; Thomas Me Adam, for resp’t.

      Affirming 50 St. Rep., 216.

   Finch, J.

This action was brougli by the vendor of real estate for a specific performance of a contract of sale, and the defense of the vendee is that the vendor cannot convey a good title to the property. That defense depends entirely upon the construction of the will of German Cotton, who gave to his wile Margaret a life estate in the land, with remainder in fee to his adopted daughter Mary. She married, and has since died, leaving a son Edwin Talbot, in whom the remainder in fee has vested. The widow was made sole executrix, and the will proceeds thus : “With full power to sell and dispose of all or any part of my real estate or personal securities of which I may died possessed, as in her judgment may seem best, and to invest the proceeds of said sales as she may deem best for the benefit of our adopted daughter, Mary E. Cotton.” It is over this power of sale that the controversy arises, for the purchaser contends that the sole purpose of the power was the benefit of the daughter, and she having died the object of the power is no longer attainable and the power itself is forever extinguished, while the vendor contends that the primary •object of the power was to benefit the widow as life tenant, and enable her to secure by a sale of the land and investment of the proceeds, a larger or more reliable income than the land itself would yield, and that such purpose remains and feeds the power, although the adopted daughter is dead ; and so the deed tendered by the executrix in execution of the power is good and sufficient to carry the fee. The general term has so held, and we think the «conclusion is correct.

The scope of the will leaves no doubt of the testator’s intention. He gives all his property to his wife for the term of her natural life, prescribing that it shall be in lieu of dower, and charging upon it specifically the support of his mother. During the life of the widow he makes no provisions for the adopted daughter, but assumes that his wife will provide for her as he and she had always done. He contemplates leaving behind him this family of three, and give his whole property to his wife as the head and responsible manager during her life, to enable her out of the rents and income to provide for herself and for his mother and the adopted daughter. The power to sell his real estate was conferred upon his wife, as executrix, to meet emergencies liable in the future to threaten this purpose and object of his testamentary dispositions. The real estate might cease, from many causes, to furnish the necessary rents or income, and in that event the whole family would suffer and not merely the wife alone. The very form of the power granted, and the words used for its creation, indicate that its chief purpose was the benefit and safety of the life tenant: The testator makes her sole executrix and commits wholly to her judgment the time, mode and terms of sale, and interposes his directions only as it respects the mode of investing the proceeds. That duty is to be done with principal regard to the interests of the daughter as entitled to the estate in remainder. The widow might be tempted by a greater interest to take a weaker security, and so he requires the investment to be such as will best secure the ultimate transfer of the fund to the daughter. The power of sale was not given or intended for the latter’s benefit as devisee of the remainder. She was safer if any such authority should be withheld. The obvious purpose was to secure against possible emergencies the income devoted to the support of the widow, and through her that of both mother and daughter. This purpose survived the death of the daughter and was in no manner dependant upon her life, and her death left the power still existent and capable of execution. The cases in this country do not hesitate to apply to powers the leading principle governing the construction of a-will which requires us to ascertain and carry out the intention of the testator as far as possible, Peter v. Beverly, 10 Peters, 564; and that intention in the present case seems to me quite clear and certain.

Much was said on the argument as to the grant of the power to the executrix, instead of to her as an individual or as life tenant. It is not necessary to argue the point in view of what this court has already settled. In Sweeney v. Warren, 127 N. Y. 434 ; 40 St. Rep. 304, it was said that “undoubtedly a power may be vested in executors, as such, to be exercised for their own benefit as individuals,” and it was added that “when a power is conferred .upon executors by virtue of their office and not on them as individuals, there being no other evidence that it was intended to be beneficial to them, the presumption is that it was given for the purpose of being executed in'the interest of the estate, and not for their own benefit.” The appellant here relies upon that presumption, but it does not arise because there is the evidence referred to that the power was given to the executrix for her own benefit as life tenant. Nothing in the condition of the estate required it; everything in the situation of the widow made it necessary for her possible protection.

We hold, therefore, that the power of sale was not extinguished by the death of the adopted daughter, and that the deed of the executrix will convey a good title.

The order of the general term should be affirmed and judgment absolute ordered for the plaintiff, with costs.

All concur. Ordered accordingly.


author: GtIldersleeve, J. Sedgwick, J.

text:
    David E. Austin, as Receiver of Taxes in the City of New York, Resp’t, v. The Westchester Telephone Company, App’lt.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    1. Pleadings—Answer—Denial.
    Where allegations of the complaint refer to matters of record open to public inspection, want of know lege and information can only arise from an unwillingness to learn the facts.

      3. Same—Action foe taxes.
    In an action to collect taxes, no demand is necessary, and a denial of such allegation in complaint raises no material issue.
    3. Same.
    Denial, in this case, held sufficient to raise an issue of residence and liability of defendant to taxation in the city of New York.
    4. Taxes—Assessment—Correction.
    If an assessment is inequitable or improper, it cannot be attacked collaterally.
    5. Same—Business.
    In absence of proof to the contrary, the court may infer the nature of the business from a name implying organization for that purpose.
    6. Same- -Residence.
    Where statute does not require residence or location of place of business to be fixed in articles of incorporation, statement therein is not conclusive, but its residence is deemed to be where its principal place of business is actually situated.
    Appeal from interlocutory judgment, entered on demurrer^ and from judgment, entered on the pleadings.

      John H. Cahill (John C. Tomlinson, of counsel), for app’lt; John 6r. H. Meyers, for resp’t.
   GtIldersleeve, J.

This is an appeal from a j udgment, entered upon the pleadings, in favor of the plaintiff and against the defendant, for the sum of $1,275.31. The action was brought to recover certain personal taxes, assessed against the defendant, for the years 1889 and 1890. To the amended answer the plaintiff first demurred, and the demurrer was sustained in part and overruled in part. Upon the pleadings, as they then stood, after such demurrer had been in part sustained, the plaintiff moved for judgment upon the ground that the amended answer was frivolous. This motion was granted, and judgment for plaintiff was duly entered. Defendant appeals from this judgment, and bring up for review the order directing judgment upon the pleadings, also the order so far as it sustains plaintiff’s demurrer, and the interlocutory judgment entered thereon. The amended complaint sets forth two distinct causes of action, the first covering the tax assessed for the year 1889, and the second covering the tax assessed for the year 1890; but, as the pleadings as to each cause of action are the same, it will only be necessary to consider one cause of action. The complaint alleges, and the answer admits, that plaintiff was duly appointed receiver of taxes; that defendant is a domestic corporation, and that the taxes have not been paid. But, as to all allegations dealing with the assessment of the tax, viz: that defendant was duly assessed, that such assessment was duly made, that it was duly confirmed by the Board of Aldermen, that the tax was duly imposed by said board, that the assessment roll,. showing said assessments and the amount of said tax, was duly delivered to plaintiff, with a warrant commanding him to collect such tax, that such warrant was in due form of law, that public notice, as required by law, was given, and that a warrant was duly issued to a marshall, and duly returned unsatisfied, the amended answer alleges no knowledge or information sufficient to form a belief, and. therefore denies the same. The complaint- also alleges that “ the defendant heretofore filed its certificate of incorporation in the clerk’s office of the city and-county of New York, thereby designating its principal office or place for transacting its financial concerns in the city’ of New York.” The amended answer, while admitting that defendant filed its certificate of incorporation in the office of the clerk of the city and county of New York, denies that it therein designated the city of New York as its principal office or place of transacting its financial concerns; and, as a separate defense, the amended answer alleges that, at the times in question, all its property, franchises, right sand business were situated outside the city and county of New York. The amended answer also, while admitting the taxes were unpaid, denies, upon information and belief, that the same had been legally assessed, or had been lawfully and duly demanded of an officer of the defendant. It also sets up as a separate defense, upon information and belief, that more than one year had elapsed after the cause of action had accrued before the action was commenced.

The demurrer was sustained as to the separate defenses, above referred to, i. e., that at the times in question all defendant’s property, franchises, rights and business were situated outside the city and county of New York, and that more than one year had elapsed after the cause of action had accrued before the commencement of the action, and overruled as to the denials contained in the amended answer, above set forth. Then, after the demurrer had been so sustained as to the aforesaid separate defenses, judgment, as we have above stated, was granted upon the rest of the amended answer as frivolous.

The denial on information and belief of the allegations in the complaint as to the assessment of defendant, the confirmation of the assessment, the delivery of assessment roll to plaintiff with warrant for collection, etc., etc., created no issue, and was properly deemed frivolous by the- learned court below. Such allegations refer to matters of record open to public inspection, and want of knowledge and information can only arise from an unwillingness to learn the facts. McLean v. Julien Electric Co., 28 Abb. N. C. 250 ; 2 Wait’s Pr., 423 ; Ketcham v. Zerega, 1 E. D. Smith, 554. Also with regard to the denial upon information and belief, that the taxes had been legally assessed, or had been lawfully and duly demanded of an officer of the defendant, the amended answer is insufficient. If the assessment was inequitable or improper, it can only be corrected by direct proceedings against the commissioners to review their decision by certiorari', it cannot be attacked collaterally. Smyth v.. International L. Ins. Co., 35 How Pr., 126; Swift v. City of Poughkeepsie, 37 N. Y., 511; Buff. & St. Line R. R. Co. v. Board of Supervisors, 48 N. Y., 93, 99; Barhyte v. Shepherd, 35 N. Y., 238; Austin v. Electric Co., N. Y. Law Journal, Oct. 9, 1893: People v. Ins. Co., id., June 17, 1890. With regard to the denial of the demand upon an officer of the defendant, it may be said that, since no allegation of demand was necessary, the allegation in the complaint was mere surplusage, and the denial in the amended answer raises no issue of the least importance. It is true that prior to February 25, 1892, before the receiver of taxes could proceed in enforcing the collection and payment of taxes against corporations in the same manner as against individuals, i. e., by summary proceedings, (Laws of 1882, chap. 41Ó, § 857), or by action, Id., § 863, he was obliged to make a demand on the president or other proper officer of the corporation, Id. § 848; but § 848 was amended by the laws'of 1892, chap. 58, § 2, which, as amended, went into effect on February 25, 1892, by which amendment the necessity of a demand on an officer was repealed. This action was commenced, subsequently to February 25, 1892, and so, according to the law, as it then stood and has since stood, no demand was necessary. See Lewis v. City of Buffalo, 29 How., 335 ; Howell v. City of Buffalo, 2 Abb. Ct. App. Dec. 412, 417; Town of Duanesburg v. Jenkins, 57 N. Y., 177; Southwick v. Southwick, 49 N. Y. 517 ; Neass v. Mercer, 15 Barb., 318; People ex rel. Alb. & S. R.R. Co. v. Mitchell, 45 Id., 208; Washburn v. Franklin, 35 Id., 599; Hackley v. Sprague, 10 Wend., 114.

There now remains to be discussed the question as to whether the answer raised an issue as to the residence of defendant and its liability to be taxed in Hew York city.

There is no statement in the complaint or answer as to the business carried on by the defendant, or under what law it was organized. Some of our laws require the certificate of incorporation to designate the principal office of a corporation, and some do not, but no inference can be drawn from the mere place of filing. If, as its name would indicate, defendant, the Westchester Telephone Company,.was a telephone company organized under the Telegraph Act, it could file its certificate where any office of such company was established, Laws of 1848, chap. 265, § 2, but would only be taxable where its principal office in fact was. IRS., 889, § 6. In the absence of proof to the contrary, the court may infer the nature of the business from a name implying organization for that purpose. See Dorsey Co., v. Marsh, 6 Fish Pat. Cas., 393 ; Mc Lean v. Julien Electric Co., 28 Abb. N. C., 249. The complaint proceeded on the theory that the defendant was assessed as a moneyed or stock corporation, having its principal office in the city of Hew York, and was, as such, assessable in this city. But its only allegation bearing' upon the residence of defendant is that: “ The defendant heretofore duly filed its certificate of incorporation in the clerk’s office of the city and county of Hew York, thereby designating its principal office or place for transacting its financial concerns in the city of Hew York.” To this the amended answer replies: “ Defendant admits having heretofore filed its certificate of incorporation in the clerk’s office of the city and county of Hew York, but denies designating therein its principal office or place for transacting its financial concerns in said city of Hew York.” And it supplements this denial by alleging in its separate defense that “at the time of the alleged assessment of taxes and issuing of the warrants for the collection of the same to the plaintiff herein, all the property, franchises, rights and business of defendant were situated outside of the city and county of Hew York, in the state of Hew York.” We are of opinion that this is a sufficient denial to raise the issue of the residence and liability of defendant to taxation in this city. ■ If, as a matter of fact, the defendant was not a resident of the city of Hew York, the commissioners of taxes had no jurisdiction over it, and any tax assessed here was void. Austin v. Hudson R. T. Co., 73 Hun, 96; 56 St. Rep. 79; Sisters of St. Francis v. Mayor, 51 Hun, 355 ; 20 St. Rep. 985; Matter of Babcock, 115 N. Y., 450; 26 St. Rep. 382. In Austin v. Hudson R. T. Co., supra, the supreme court, general term, first department, held that when the statute, under which a domestic corporation is organized, does not fix its residence or require the location of its place of business or principal office to be stated in its articles of incorporation, a statement in such articles of a place at which'its principal office shall be located is binding neither upon the corporation nor the taxing officers, for the purpose of fixing the place where the corporation shall be assessed for personal taxation under the statute, 1 R. S., 389, § 6, but its residence is deemed to be where its principal place of business is actually situated. If as is claimed by plaintiff’s attorney in his brief, and as we believe we may infer,—although it does not appear from the complaint or amended answer,—the defendant was organized under the Telegraph Act of 1848, it is of little consequence whether the certificate of incorporation designated this city as its principal place of business, or not; the question to be determined was, where was its principal place of business actually situated? This issue was, we think, sufficiently raised by the amended answer. The pleadings present an issue of fact, which defendant was entitled to have tried. For the reason above stated, the order of the special term, sustaining in part the plaintiff’s demurrer to the amended answer, must be set aside, and the interlocutory judgment entered herein on June 29th, 1893, vacated; and the order of June 22nd, 1893, directing judgment in favor of the plaintiff upon the pleadings as frivolous, must be set aside, and the judgment entered herein, on the 1st day of August, 1893, in favor of the plaintiff and against the defendant, must be reversed, and a new trial ordered, with costs to abide the event.

Sedgwick, J.

Upon a motion for judgment upon the answer as frivolous, a plaintiff cannot argument necessary to show that the answer is frivolous. In my opinion the proposition requires argument that the plaintiff need not prove the sufficiency of the assessment and the subsequent proceedings if the defendant makes denials of the sufficiency upon a want of information and belief. It may be argued without manifest frivolity or absurdity that the defendant was under no obligation to go to any trouble or expense to find the records, to peruse them with minuteness, or to make up an opinion as to their character in law or in fact. I agree with Judge Gfildersleeve in his view of the allegations as to the situs of defendant’s property and in the result announced by him.


author: Gildebsleeve, J.

text:
    Frederick Giblin, Resp’t, v. National Steamship Company, Limited, App'lt.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    1. Cabbiebs—Animals—Negligence.
    To excuse the carrier from liability, it must not only appear that the injury arose from the viciousness, unvuliness or restiveness of the animal, but also that the carrier has been guilty of no negligence causing the loss.

      2. Jurisdiction—Waiver.
    The question of jurisdiction'is deemed to be waived, where the defendant duly appears and answers, but does not plead want of jurisdiction,
    Appeal from judgment, entered on verdict of a jury, and from order denying defendant’s motion for a new trial.

      John Ghetwood, for app’lt; Goodrich, Deady & Goodrich, (W. W Goodrich, of counsel), for resp’t,
   Gildebsleeve, J.

The assignors of the plaintiff purchased ten horses in Yorkshire, England, and entered into a contract with the defendant, a foreign corporation, engaged in the business of transporting passengers and freight between Great Britain and the United States, whereby defendant agreed to carry the horses from Liverpool, by the steamship “ Queen,” to the city of New York. In loading the horses upon the steamship at Liverpool, one of the horses fell overboard, and was drowned. This action is to recover the value of the horse thus lost, together with ten pounds, which had been paid for freight thereon by the assignors of plaintiff to the defendant. The complaint alleges that “ the defendant, or its servants, performed their duties so unskilfully and negligently, and supplied such insufficient machinery and appliances, that one of said horses fell overboard and was drowned.” The defendant, by its answer, substantially admits the contract for transportation, set forth in the complaint, and alleges that “ it has fulfilled its contract, and that it is under no such liability as is alleged in the complaint.” For further answer, defendant says that a horse, while in the charge of the servants of plaintiff’s assignors, was drowned. It is thus seen that the issues raised by the pleadings are (1) the proximate cause of the loss of the horse and the responsibility therefore, and (2) the value of the horse. The process of shipping consisted in placing the horse into a box or crate, with a door at each end, then the doors were closed, and the box, containing the horse, was hoisted and swung on board the steamship.. The horse in question, called “ Gay Lad,” was restive and uneasy, and did not readily enter the box. After four other horses had been safely placed on board, in the manner described, the horse Gay Lad, still refused to be led into the box, as the other horses were, and was therefore backed into the box, and he went through the door at the other end, off the dock, into the water, and was drowned.

It was the defendant’s contention upon the trial, and there was evidence introduced in support thereof, that the horse was in charge of the servants of the plaintiff’s assignors, when he was drowned. The issue of this question seems to have been fairly and squarely left to the jury : “If you find that the horse1 was in the possession and under control of Messrs. De Young and Atterbury (the assignors of plaintiff) at the time this accident happened, of course, there cannot be any recovery." On this question, the jury, by their verdict, found adversely to the defendant, and there is ample evidence to sustain their conclusion. While it is true that there is a conflict of testimony on this pointy we are of the opinion that there is a fair preponderance of evidence-in support of the plaintiff’s claim that the defendant assumed and undertook the task of loading the horses upon the steamship. It is the defendant’s testimony, as well as the plaintiff’s, that one Balfe, an employee of the defendant, superintended the loading of the horses, and gave specific instructions in reference to the management of the horse in question, while upon the wharf. When the-horses arrived upon the wharf, they were assigned by defendant’s servants to a shed, in which to stand until brought to the box for hoisting upon the steamer, under the superintendence of Balfe. The evidence is certainly sufficient to sustain the conclusion that, there was a delivery of the horses by plaintiff’s assignors to the defendant, and that, at the time of the accident, they were in possession and under the control of the defendant. The defendant, had received, on the day previous, payment for the transportation of the horses, at the rate of ten pounds for each horse. The fact being established that defendant received the horses for transportation to the city of New York, the common law liability of common carriers of property rested upon the defendant in respect of the horses, and it becomes insured against all loss, subject to the following qualifications :—It could be relieved from liability in case of loss, provided the loss-could be attributed to the -intrinsic-qualities or nature of the aminal, and defendant’s freedom from contributory negligence could he made to appear; and provided the loss was due to an act of God or of the public enemy. On this question, the learned trial judge laid down, for the guidance of the jury, the rule in the following language: “If this unmanageable condition of the horse was one innate in the animal, in other words, if he was such an animal as would from his disposition be unmanageable, or was from his very disposition unmanageable at the time, there cannot be a recovery here, unless this unmanageable condition was brought about by the carelessness or negligence of the defendant.” We think it may be said that this rule was more favorable to defendant than it had a right to ask, since the controlling authorities held that to excuse the carrier from liability, it must not only appear that the injury arose from the viciousness, unruliness or restiveness of the animal, or similar causes attributable to the nature and propensities of the animal itself; but it must also appear that the carrier has been guilty of no negligence causing the loss. Penn v Buffalo & Erie R. R. Co., 49 N. Y. 204; Cragin v. N. Y. C. R. R. Co., 51 N. Y. 61; Evans v. R. R. Co., 111 Mass., 142. It is not error to refuse to charge that “the proximate cause of the accident was the unmanageable condition of the horse,” inasmuch as that was a question of fact clearly within the province of the jury to determine.. After careful examination of the entire case, we conclude that there is sufficient evidence to sustain the plaintiff’s allegation of defendant’s negligence, as set forth in the complaint in the following language, to-wit, “that in leading said horses upon said steamship, the defendant or its servants, performed their duties so unskilfully and negligently, and supplied such insufficient machinery and appliances, that said horse fell overboard and was drowned.” There is sufficient testimony to support the conclusion of the jury as to the amount of damages, and we can find no reason for setting aside or modifying the verdict as being,against the evidence or excessive. The question of jurisdiction is not in the case. The defendant duly appeared and answered, but did not plead the want of jurisdiction. If that question could have been raised, it must be deemed to have been waived. Code, § 266; Popfinger v. Yutte, 102 N. Y. 38; 1 St. Rep., 334 ; McLean v. St. Paul & Chicago R. R. Co., 13 Daly, 446. The rules of law, laid down by the court below, in the conduct of the trial and in the presentation of the case to the jury, were correct. The result of the trial depended upon questions of fact, which were fairly left to the jury to decide, and its verdict is conclusive. The judgment and order appealed from must be affirmed, with costs. All concur.


author: Gildersleeve, J.

text:
    James W. Murphy et al., Resp’ts, v. The New York Elevated Railroad Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    Appeal—Evidence.
    The general term will not interfere with the conclusions of the special term, where there is sufficient evidence to support them.
    Appeal from judgment of special term.

      Davies & Rapallo, for app’lts; John E. Parsons, for resp’ts.
   Gildersleeve, J.

This is the usual action in equity, by the owner of premises abutting upon the defendants’ elevated railroad, to restrain the defendants from the further maintenance and operation thereof. Judgment was given at special term awarding past damages, the price of the easements taken by the defendants fixed, and an alternative injunction granted. The questions of fact raised depended upon conflicting testimony. There is sufficient evidence in support of plaintiffs’ contention to sustain the conclusions reached by the learned court at special term, and with such conclusions the general term will not interfere. The trial court was manifestly guided by correct principles of law, and properly applied them. The exceptions to rulings upon questions of evidence are unassailable. We find no valid objection to the judgment. The judgment appealed from must be affirmed, with costs.

All concur.


author: Gtldersleeve J.

text:
    James H. Brady, App’lt, v. Christopher Nally, Resp’t.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    Pleadings—Pboof.
    A party, whether plaintiff or defendant, must prevail according to the case made by his pleadings, or not at all.
    Appeal from a judgment, entered upon the report of a referee.

      Arnoux, Bitch & Woodford, ( William H. Arnoux, of counsel), for app’lt; Henry Steinert, for resp’t.
   Gtldersleeve J.

The plaintiff appeals from the judgment rendered herein, so far as it relates to the allowance of .a certain counterclaim. The counterclaim was set up in the answer as follows, viz: “And for a further and third counterclaim to said plaintiff’s claim herein, the defendant alleges that at divers times, between the 16th day of May, 1888, and the day of 1888, this defendant, at the special instance and request of the plaintiff herein, furnished to said plaintffi plumbing material and labor, at the school house situated at the northeasterly corner of Ninety-sixth street and Lexington avenue, in the city of New York, and that said material and labor have amounted to the sum of $4,495.60, but no part of said sum has been paid. Under this allegation, which claims an indebtedness for plumbing material and labor of the value of $4,495.60, the referee has found a contract for $11,000, embracing, besides plumbing materials and labor, gasfitting, sewer excavation and pipes for sewer and gas, and labor connected therewith; and the referee has, found further “that the plaintiff has failed to pay the defendant for work performed and materials furnished under said contract, as in and by said contract provided, amounting to the sum of $4,496.66.” The evidence discloses that the work actually done, consisted, in part, of putting in a sewer and blasting on three different drains. So far as appears, the work and materials not paid for, and for which an award is made in excess of plaintiff’s claim, might not have included any plumbing material and labor whatever. It will not do to allege one thing, and then prove another, and be allowed to recover thereon. The rule is. correctly stated in Abbott’s Brief on Pleadings, § 1027, page 802, as follows: “A party, whether plaintiff or defendant, must prevail according to the case made by his pleadings, or not at all, secundum allegata as well as probata.” See Wright v. Delafield. 25 N. Y., 266; Day v. Town of New Lots, 107 N. Y., 148; 11 St. Rep. 361; Delany v. Van Derveer, 7 N. Y. Supp., 132 ; 26 St. Rep. 100. The findings of fact do not sustain the allegations of the answer in respect of the counterclaim under consideration. The proper remedy is a reversal of the entire judgment and a new trial of all the issues. Goodsell v. Western Union Tel. Co., 109 N. Y., 147; 15 St. Rep. 73. udgment reversed, and a new trial granted, with costs to abide the event.

All concur.