text:
    TOBIAS NEW, Respondent, v. AUGUSTUS W. NICOLL, as Executor and Trustee of SOPHIA V. D. REYNOLDS, Appellant.

      Trustee —power of, to bind estate by executory contact — special agreement as to — when enforceable.

    Certain real estate was conveyed to the defendant Nicoll, in trust, to receive llio rents, issues and profits thereof, and after paying all taxes, assessments and other charges upon it, to apply the rest and residue thereof to the use of a Mrs. Reynolds during her natural life. Nicoll, as trustee, employed the plaintiff to make certain specified necessary repairs upon the buildings; at that time he had no money on hand, but promised to pay therefor out of the rents to be subsequently received. TheplaintifE performed the work relying upon this promise and the trust estate. Nicoll subsequently received sufficient money to pay the bill but neglected to do so.
    In an action to recover the same from the estate, held, that the trustee had no power to bind tlie estate by his executory contract, and that the action could not be maintained.

      Quaere, whether, if the trustee had caused the expenditure to be made in fulfillment of his duties, and if, having no funds in his hands, he had made a special agreement that such expenditure should be made on the credit of the estate and he be exempt from all personal liability therefor, such agreement could be enforced against the estate in a court of equity.

      Stanton v. King (8 Hun, 4; aff. Court of App. MS.) followed; Noyes v. BlaJceman (8 Sand., 543-544) distinguished.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tlie report of a referee.
    From tlie report of tbe referee it appeared that in July, 1866, certain premises in tlie city of New York were conveyed to the defendant Nicoll “ in trust, to receive tbe rents, issues and profits of tbe said premises, 'and after paying therefrom all taxes, assessments and other charges upon said premises, to apply tbe residue to tbe sole and separate use of Sophia Y. D. Reynolds during her natural life.”
    That Nicoll accepted said deed and entered upon tbe execution of tbe trust therein set forth.
    That during tbe months of March and April, 1873, said Nicoll, by virtue of tbe authority and power vested in him as aforesaid as trustee, employed tbe plaintiff to make certain specific repairs on sucli premises, which, said repairs were necessary for the protection and preservation of said premises, and to render them fit for occupation, and promised and agreed to pay the plaintiff therefor out of said rents, issues and profits arising under said trust.
    That at the time the defendant Nicoll employed the plaintiff as aforesaid, there were no funds of the trust estate in the hands of defendant Nicoll with which to make said repairs.
    That said plaintiff, relying upon said authority and said trust estate, did perform certain work, labor and services, and furnished certain materials on and about the roofs of said buildings during the months of March and April, 1873, worth and of the value of $2,941.95, which sum Nicoll promised and agreed to pay him therefor as aforesaid.
    That since the said sum became due the plaintiff as aforesaid, said Nicoll, has received out of the rents, issues and profits from said trust estate and said premises, sufficient moneys to pay all charges upon the estate, including said sum due to the plaintiff as aforesaid, and which were properly applicable to the payment of said claim of plaintiff as aforesaid.
    That before the commencement of this action the defendants, and each of them, had neglected and refused to pay the plaintiff said sum, or any part thereof, although the same had been demanded of them.
    The referee directed judgment against the defendant Augustus W. Nicoll, as trustee of the late Sophia Y. D. Reynolds, for the amount claimed, and that the plaintiff have costs of this action, and be paid by said Augustus W. Nicoll out of the rents, issues and profits arising under said trust deed since the 1st day of May, 1873, which belong to and were payable to the use and benefit of said Sophia Y. D. Reynolds under said trust deed and the recitals therein.

      E. More, for the appellant.

      Erasmus Mew, for the respondent.
   Gilbert, J.:

The referee has found, that in July, 1866, the defendant Nicoll, received a conveyance of certain premises situated in the city of New York, known as numbers one to forty Abattoir place, upon trust to receive the rents, issues and profits thereof, and after paying all taxes, assessments and other charges upon said premises to apply the rest and residue of the said rents, issues and profits to the sole and separate use of the defendant, Mrs. Reynolds, during her natural life, and after her decease upon trust to convey, etc., etc,; that Mrs. Reynolds died in 1876 and during the pendency of the action, and that the defendant Nicoll is her executor. The referee further found, that in March or April, 1873, Nicoll did, by virtue of his power and authority as trustee, employ the plaintiff to make certain specific repairs on the buildings on the trust estate; that such repairs were necessary for the protection and preservation of said buildings and to render them fit for occupation and tenantable and of use and benefit to Mrs. Reynolds; that Nicoll promised and agreed to pay the plaintiff for said repairs out of the rents issue* and profits arising under said trust; that at the time of tin employment of the plaintiff, Nicoll had no funds of the trust estatf with which to make said repairs; that the plaintiff made said repairs relying on said authority and said trust estate, and that since the debt to the plaintiff became due, Nicoll has received out of the rents, etc., of the trust estate sufficient money to pay all charges thereon, including the sum due the plaintiff. Accordingly a judgment was entered against the. defendant as trustee, and lu was ordered to pay the same out of the rents, issues and profits of the trust estate which have accrued since May 1, 1873, which were payable to Mrs. Reynolds under and by virtue of the trust deed aforesaid.

We might find fault with some of the findings, but, assuming them to be correct, the question is, whether the facts found are sufficient to create a charge upon the trust estate, and we are of opinion that they are not. A trustee cannot bind the trust estate by an executory contract. That point was expressly adjudged in Stanton v. King, by this court (8 Hun., 4), and by the Court of Appeals (MS.). The same principle as applied to executors and administrators had been frequently decided before. (Bloodgood v. Sears, 64 Barb., 76 ; Ferrin v. Myrick, 41 N. Y., 315 ; Austin v. Munro, 47 N. Y., 360.) The matter, therefore, ought to be deemed res adgudieata.

Tlio facts that the plaintiff made the repairs relying on the authority of the trustee, and on the trust estate, and that the repairs were necessary for the preservation of the subject of the trust, and that the trustee had no trust funds, we think, do not take the cause out of the principle stated. The reliance of the plaintiff was simply a mistaken one on his part. The law does not justify it. The necessity of the repairs relieves the trustee from an imputation that, in causing them to be made, he committed a breach of trust, but it gave no remedy to the plaintiff against the trust estate. Nor did the promise of the trustee to pay the plaintiff out of the trust fund absolve him from personal liability, or / create a lien on said fund; indeed there is no way by which a trastee can, by his own act, substitute a lien on the trust estate for expenses incurred by him in its management or preservation, instead of his personal liability for such expenses. He may, perhaps, cause expenditures to be made in fulfillment of his duty as trustee, and if he has no funds in hand to defray the same, he may make a special agreement that such expenditures shall be made on the credit of the fund, and that he shall be exempt from personal liability, except for the application of the fund to the payment of such expenditures, whensoever he can do so without committing a breach of trust, and such an agreement may be enforceable in a court of equity in a proper case. But the referee has not found, nor docs the evidence show, that such an agreement was made. The trustee did not ask to be relieved from personal liability. The’ plaintiff did not agree to look solely to the fund for his compensation. We have not seen the judgment actually entered in the case of Noyes v. Blakeman, cited by the plaintiff. The decision of the Superior Court in that case as reported, was, that “the agreement of the trustee that the plaintiff should be compensated for his services out of the rents and profits of the estate Was reasonable and just, and must be carried into effect.” And the decision was put exclusively on the ground that the trustee had an equitable lien for expenses reasonably and in good faith incurred by him in the preservation and reparation of the estate, and that he might transfer such lien to the jdaintiff. (3 Sand., 543, 544.) I infer from the opinions, delivered in the same case in the Court ol Appeals, that the judgment was affirmed upon the same grounds Neither court decided that a charge on a trust estate can be created by an executory contract of the trustee, however necessary or meritorious, without authority therefor in the deed of trust or judicially conferred. If the judgment entered in the case goes that length, it should not be followed as a precedent, because the subsequent cases in the Court of Appeals, which have been cited have established an opposite rule.

It is no doubt the duty of the trustee to pay all charges on the estate. But the demand of the plaintiff is not such a charge. The grantor of the trust did not intend to authorize the trustee to create charges on the estate indefinitely, and then pay them out of the trust fund. The word charges ” means liens or incumbrances which are jiaramount to the trust. Nor can the direction to pay all charges on the estate be construed as an authority to the trustee to make contracts which would be binding on the estate.

No cause of action against the defendant Nicoll as executor of Mrs. Reynolds has been shown.

The judgment must be reversed, the order of reference vacated, and a new trial granted, with costs to abide the event.

Dykman, J., concurred. Barnard, P. J., dissented.

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


source: Caselaw Access Project

author: Dykman, J.: GILBERT, J.:

license: Public Domain

text:
    JOHN DAY, an infant, by JOHN DAY, his guardian, Appellant, v. THE BROOKLYN CITY RAILROAD COMPANY, Respondent.

      Corporation — liability of, for acts of servants.

      As plaintiff, a boy fourteen years old, was walking in the street with a can of water, a driver of defendant’s cars called to him to give him a drink. The horses being then on a walk the plaintiff stepped on the front platform, gave the can to the driver, who drank therefrom, and returned it to the plaintiff, telling him to hurry off quick. Plaintiff asked him to stop the car, but he paid no attention to him, and as plaintiff was stepping off whipped the horses into a trot. Plaintiff fell, was run over and injured. In an action against the defendant to recover for the damages sustained thereby, held, that the acts of the driver were within the scope of his authority, and that the defendant was liable for the injuries occasioned thereby.

      Appeal from a judgment dismissing the complaint herein, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. The action was brought to recover damages for injuries sustained by the plaintiff in falling from one of defendant’s cars. IJpon the trial the plaintiff testified: I am going on fourteen years of age; on the 5th day of July, 1874, my mother sent me to the pump for a can of water; the pump was on Myrtle avenue, a little below Canton street; I filled my can with water, and just then the driver of the Greenpoint car, which was coming up the hill, called to me to give him a drink; the horses were on a walk, and I went over and got on the front platform, and gave him the can, from which he took a drink; he then handed me the can and told me to hurry off quick; I said please stop the car, but he paid no attention to me; he was looking the other way; I went to get off and put my left foot first, and my right foot got caught on the step; as I started to get off, the driver touched the horses with his whip and made them go faster; I was thrown and dragged, and then the wheel ran over me; I can’t tell how far I was dragged; the driver was looking towards me when he told me to hurry off; then he turned his head; when I started to get off my face was towards the horses ; I took hold of the railing with my left hand the can was in my right hand; the driver started the horses on a slight jog; I was on the step when he took hold of the whip; getting off, I stepped my left foot on the ground and my right foot got entangled on the step and I was thrown.
    Counsel for defendant moved to dismiss the complaint upon the grounds:
    1st. That the driver was an agent merely to perform the duties of a driver, to take care of the horses, and to invite and accept passengers to the car. In other words, a simple agent for a particular purpose, and not a general agent, and such purposes did not embrace authority to exclude or admit persons not passengers to and from the car. His authority was limited to the receipt and discharge of passengers.
    2d. That there was negligence on the part of the boy in going from the car while the car was in motion.
    3d. That the comp'any owed no such duty to the hoy, as madi it liable for the acts of the driver.

      Tbe court granted the motion, and judgment was entered accordingly-

      Morris Pearsall, for the appellant.
    A railroad. corporation may be liable for injury sustained through the negligence of its servants, while acting even against its express instruction is too clear for discussion. (22 N. Y., 309; Weed v. The Panama R. R. Go., 17 N. Y., 369; Sandford v. Eighth Ave. R. R. Go., 23 id., 346; Phila. cmd Reading R. R. Go. v. Derby, 14 How., 468; Oarroll v. JY. Y. and Pi. H. R. R. Go., 1 I)uer, 571.) It is clear upon well-settled principle of law that the plaintiff was lawfully upon the car, and the defendant is hable for the injury he sustained through the negligence of the driver unless the plaintiff’s own negligence contributed to the injury. (Robertson v. Pi. Y. and Erie R. R. Go., 22 Barb., 92; Ladca/wanna and Dloomsburg R. R. Go. v. Ghenewith, 52 Penn., 382; Milton v. Middlesex R. R. Go., 9 Am. Rep., 11; Phila. and Reading R. R. Go. v. Derby, 14 How. [H. S.], 468; Carroll v. PT. Y. and Pf. 11. R. R. Co., 1 Duer, 591; Toncmanda R. R. Go. v. Mwiger, 5 Den., 255; Mv/nger v. Tonawanda R. R. Go., 4 N. Y., 319.)

      Winchester Britton, for the respondent.
    In the matters proven at the trial the driver was not acting within the scope of his authority. "When he ashed the boy to come upon the car to furnish him with a drink, he was deviating from the business of defendant for a purpose of his own not within his agency. He was acting for him self and not his employer, and the employer was not responsible ftn his acts resulting in the injury. (Eaton v. Del., Lade, and Western R. R. Go., 51 N. Y., 382-387, 394; Weed v. Panama R. R. Go., 17 id., 362; Mali v. Lord, 39 id., 381; Hoffman v. Lns. Co., 5 Bigelow Ins. R., 595; Gosgrove v. Ogden, 49 N. Y., 255, 257; Flower v. Penn. R. R. Go., 69 Penn., 210; cited Wharton on Negligence, 158, note 3; Lsaacs v. Third Ave. R. R. Go., 47 N. Y., 125 ; Sherman and Redfield on Negligence, § 63; Mechanic's BJc. v. Pi. Y. and Pi. II. R. R. Co., 3 ICiernan, 634, 635 ; Sleath v. Wilson, 9 Caí’. & Payne, 617; McKenzie v. McLeod, 10 Bing., 385; Sheridan v. Oharlich, 4 Daly, 338; see, also, Wharton on Negligence, §§ 162-170 inclusive ; Fleming v. Blelyn. City R. R. Go., City Court, Gen. T., not reported.) Plaintiff not being upon the car with consent of defendant as a passenger or otherwise, no legal duty existed toward him upon which negligence can be based. There can be no negligence without an obligation upon which to base it. (Eaton v. Del., etc., ante, 381; Ffioholson v. Erie R. R. Co., 41 N. Y., 542; Ferry v. FT. 7. C. R. R. Co., 22 Barb., 586; Gillis v. Penn. R. R. Co., 59 Penn., 129; 16 Am. Pep., 619.)
   Dykman, J.:

The liability of a master for the acts of his servant is founded on his consent thereto, not that the consent is expressed in all cases, because, quite to the contrary of that in most of the cases where recoveries have been had, the servant not only acted without authority, but in actual violation of it. It is necessary, however, to such liability that the act shall be done while the servant is engaged in the master’s business and within the scope of his employment.

When authority will be implied for the wrongful act of the servant, so as to render the master liable therefor, is the great point of difficulty which has caused much conflict of judicial opinion, and has given rise to decisions which are apparently conflicting.

In many cases authority must be conferred without any special limitation, and then they have by implication authority to do all. things necessary to the execution of such authority. Sometimes they must exercise discretion and sometimes they may use force, and when either are so exercised or used the act becomes that of the master, because it is done for him in the usiral course of his business, and so the law works out his assent thereto.

It is in general sufficient to make the master responsible that he gave to the servant an authority or made it his duty to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment.

The master in that case will be deemed to have consented to, and authorized, the act of the servant, and he will not be excused from liability, although the servant abused the authority or was reckless in the performance of his duty, or inflicted an unnecessary injury in executing his master’s orders. (Rounds v. Del., Lack, and West. R. R. Co., 64 N. Y., 134.)

These principles have come to be well settled in onr State, and have many times received tbe sanction of onr highest appellate, conrt. An exception, however, has been recognized to them, and that is when a servant has committed an act maliciously and with design to commit an injury. In such a case the master is not held hable, because that is an act beyond the scope of his employment, and as to it the relation of master and servant does not exist.

This case must be decided in the light of these principles. The defendant hired a driver for one of its cars and put him in charge of it and of the team that drew it, and committed to him the management of the same so far as the propulsion of the car was concerned. This was a place of trust and responsibility, and the defendant became legally liable for all injuries inflicted by him through lack of judgment or carelessness while in the discharge of this duty.

It was necessary to the performance of this duty that the driver should eat and drink and be clothed. At this time he was thirsty, and the plaintiff got on his car to give him water to drink at his request. As the driver might lawfully ask him to do that, it follows that the plaintiff was rightfully on the car. The request of the driver was not an act of wantonness or malice which would exculpate the defendant.

It was not even beyond the scope of his employment, for there are many purposes for which the driver could ask persons to get on the car besides that of becoming a passenger. He might by accident drop his hat or his whip, or any article connected with his business, and ask a person to get on his car to restore them to him, and thus get such person rightfully there. It is not necessary to the liability of the defendant that the relation of passenger and carrier should exist. In the case cited above the relation did not exist and the plaintiff was wrongfully on the car, and yet the court held that he was entitled to an opportunity to get down with safety. How much more was the plaintiff entitled to do so in this case ? He got on the car at the request of the driver to do him an act of kindness, and he ought to have been let off in safety. Instead of that, the car was urged forward and the' driver refused to stop, although the plaintiff besought him to do so, and this misconduct caused the injury complained of. It must be borne in mind that the act of the servant in tliis case was not outside of the master’s business, but, on the contrary thereof, it was connected with it, and whether the act which caused the injury was one of carelessness or misfeasance, the liability of the defendant is the same.

But, sujipose the plaintiff was wrongfully on the car. lie was subject to removal, but not to injury. The driver could order him off, as he did, but had not the right to do so when the car was moving at a rate of speed which would render it dangerous to obey the order. In the case of Hounds, the baggageman discovered the plaintiff on the car and ordered him off and the plaintiff said, “I can’t; the wood is right here; I want you to help me,” and he was kicked off, and the plaintiff recovered. Here the plaintiff says: The driver handed me the can and told me to hurry off quick; I said please stop the car, but he paid no attention to me.” He then got off and sustained the injury. Now, what is the difference in ' principle in these two cases ? In the one the plaintiff was forced off by a kick and in the other by a word. The defendant cannot complain that the plaintiff obeyed the driver and got off. Suppose, in the first case, the plaintiff had leaped from the car when he was ordered off instead of waiting to be kicked off, and had sustained the injury, that would not have relieved the defendant, and the recovery would have been the same. So in this case. The plaintiff was driven off the car, and the liability is the same as if he had been forced off.

In any view of the case, therefore, the judgment must be reversed and a new trial granted, costs to abide the event.

BabNAed, P. J., concurred.

GILBERT, J.:

I concur. The defendant intrusted the car to the driver. At the time of the accident he was using it in the ordinary course of his employment. The defendant is, therefore, liable for the driver’s , negligent management of the car.

Judgment and order denyingnew trial reversed and new tidal granted, costs to abide event.


author: Dykiian, J.:

text:
    GARRIT FURMAN and JULIA FURMAN, Respondents, v. MINNIE W. FURMAN, Impleaded with WILLIAM H. FURMAN and others, Appellants.

      Action, for partition — discontinuing of, by plaintiff after judgment and before sale — when allowed.

    Ia this action, brought for a partition of certain real estate, a judgment was entered directing that it he sold, under which it was accordingly advertised for sale. Subsequently the plaintiff applied to this court for leave to discontinue the action, alleging that he was induced to bring the action by the representations of his father, one of the defendants herein, who was tenant for life of the property, to the effect that it was desirable to put it in a situation in which it could be sold, but that no sale was to be made for the present; that a sale now would be prejudicial to the interests of those entitled in remainder, of whom he was one. Held, that he should be allowed to discontinue the action.
    Appeal from an order made on tbe application of tbe plaintiff vacating a judgment of partition and sale entered in tbis action, and allowing tbe plaintiff to discontinue tbe same upon payment of costs.

      Philip S. Orodke, for tbe appellant.

      Charles _ZY. Blaelc, for tbe respondents.
   Dykiian, J.:

Generally, a plaintiff has an absolute right to discontinue an action at any time before judgment, or before a case has been submitted to tbe jury. To tbis general rule there are some exceptions, under our peculiar system of practice. After a j udgment lias been entered, however, a plaintiff can discontinue bis action only by tbe permission of tbe court, and, on an application for that purpose, tbe court grants or refuses such application in its discretion in full view of tbe equities and rights of tbe parties, and on such terms as are just.

Now this is an action for partition of real estate, and a judgment has resulted for a sale of tbe premises under which they are advertised for sale, and tbe plaintiff has made a motion for leave to discontinue. His position is that himself and bis sisters have been misled by their father, and that he never intended to have a sale of the property. That his father represented to him that it was desir-, able to have it placed in a.position in which it- could be sold at a proper time, and that to this end it was necessary to commence this action in his name. That he consented in that view and for that purpose oniy. That he paid no attention to the action, but left the same to his father until he was surprised to' find the whole property advertised for sale. The father denies this, and says the plaintiff fully understood the matter from the beginning.

There is enough in the papers to show that there has been considerable misunderstanding on the part of the plaintiff, and without deciding where any censure ought to rest, there is no reason why he should how be forced on with this action. ■ No one has acquired any rights by it which will be lost by its discontinuance, and the plaintiff now thinks it will be prejudicial to his interest to proceed in it any further. Two of his sisters think the same 'with reference to their interest. The only person who desires to have the action proceed is the life tenant, and he is a defendant, and his wishes ought not to prevail to the prejudice of the remainder-men. The property seems to be large and valuable, and the parties in ultimate interest ought to control its eventual disposition. This they wish to do by allowing it to remain for the present as it is and unsold. In the present depressed state of the real estate market this is doubtless wise, and even if the plaintiff did commence the action of his own volition, he ought to be permitted to discontinue the same on payment of all costs and expenses.

Order affirmed, with ten dollars costs and disbursements.

Gilbert, J., concurred; Barnard, P. J"., not acting.

Order affirmed, with costs and disbursements.


author: D rrcMAN, J.:

text:
    AMELIA L. ORMSBY and WATERMAN L. ORMSBY, Appellants, v. JOHN JACQUES and WILLIAM S. JACQUES, as Trustee, etc., of JOHN JACQUES, Deceased, Respondents.

      Unauthorized appearance of attorney — judgment entered upon — when the judgment may he set aside.

    This action was brought to set aside a judgment recovered against the present plaintiff in an action to foreclose a mortgage. The complaint alleges that they were never served with a summons or complaint therein, and that they never appeared therein; that it appeared by the said judgment roll that one De Yigne appeared therein as attorney for them; that they had never authorized him so to do, nor did they know that he had done so until after the entry of the judgment and a sale thereunder. Held, that the complaint .stated-facts sufficient to constitute a cause of action, and that it was error to dismiss the same on the ground that it did not.

      Brown v. Nichols (42 N. Y., 26) distinguished; Ferguson v. Grawford (Ct. of App. MS.) followed.
    Appeal from a judgment in favor of the defendants, entered upon an order dismissing the complaint herein. The action was brought to set aside a judgment entered in an action to foreclose a mortgage, in which the present plaintiffs were defendants. Erom the judgment roll it appeared that the plaintiffs had appeared therein by an attorney, one William De Yigne. The plaintiffs herein claimed that he appeared fraudulently and corruptly, and without any authority from them, and that they did not know that he had done so until after a sale had been had under the judgment; that neither a summons nor any other paper in the action had been served on them.

      Morris & Pearsall, for the appellants.
    The justice erred in dis missing the complaint. It is well settled that a court of equity has power to grant relief against a judgment procured by fraud. (Dob-son v. Pearce, 12 N. Y., 168; Reigal v. Wood, 1 Johns. Oh., 402; State of Michigam, v. Phcmix Bamli, 33 N. Y., 25; 2 Story Eq. Jur., § 881; Galation v. Brwin, 1 Hoplc., 54 ; Willard’s Eq. Jur., 160.) It will be observed that the direct issue in this action is whether the attorney had authority to appear. It is not a collateral issue, as in the case of Ferguson v. Crawford (Y Ilun. 25) and in the eases of Allen v. Stone (10 Barb., 54Y); Denton v. Noyes (6 Johns., 296); Meaoham v. Dudley (6 Wend., 515); Ellsworth v. Campbell (81 Barb., 135); Blodget v. Conklvn (9 How., 442). No reported case can be found limiting a party aggrieved as herein to a motion which rests in the discretion of the court, and prohibiting a suit in equity for the sole purpose of obtaining relief. On the contrary, although relief against a judgment or decree for fraud may be obtained in the same court by a motion or petition, yet it may also be obtained by an original bill in a court of equity. (Willard’s Eq. Jur., 163; State of Miohiga/n v. Phoenix Bank, 33 N. Y., 25; Sheldon v. Fortesaue Aland, 3 P. Wms., Ill; Munsell v. Morgan, 3 Bro. O. 0., Y4; Lloyds. Mcmsell, 2 P. Wms., Y3.) The rule that an unauthorized appearance by an attorney binds the party for whom he appears seems to have been based upon the diota of Lord Holt. The rule now in England is that if a party had no notice of the suit an appearance by an unauthorized attorney is void; but if process has been served upon him, he will not be relieved if the attorney is responsible. (Baijley v. Buekland, 1 W., H. & G., 1; Dupen v. Keeli/ng, 4 C. & P., 102; Emersons. Brown, Y M. & Gk, 4Y6; Robson v. Eaton, 1 T. R., 62; Eoeker v. Parker, Y Crancli, 436; Criehfield v. Porter, 3 Ham., 518; and see Field v. Gibbs, 1 Pet. 0. O., 158; Ruckle v. Roach, 2 Chit., 193; Hubbart v. Phillips, 13 M. & W., Y02; Campbell v. Bristol, 19 Wend., 101.)

      Jno. H. Knaebal, for the respondents.
   D rrcMAN, J.:

In the case of Ferguson v. Crawford (7 Hun, 25), it was decided by the General Term of our own district that an appearance by an attorney gives jurisdiction to the court, and that the proceedings and judgment in the action cannot be attacked collaterally, on the ground that the appearance is unauthorized and forged. This was supposed to have been settled by the decision of the Court of Appeals in the case of Brown v. Nichols (42 N. Y., 26), and on the trial of this action the court was doubtless controlled by these decisions. Since that time the decision in Ferguson v. Crawford has been reversed by the Court of Appeals, and the decision of the court is placed on grounds which are inconsistent with the case of Brown v. Nichols. The opinion was concurred in by all but one of the members of the court, and contains the following remarks: “ In Bolton v. Jacks (6 Robt., 198), Jones, J., says that it is now conceded, at least in this State, -that want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of limited or local jurisdiction, or of record, or not, and that the bare recital of jiuisdietional facts in the record of a judgment of any court, whether superior or inferior, is not conclusive, but only prima facie, evidence of the truth of the facts recited, and the party against whom a judgment is offered is not, by the bare fact of such recitals, estopped from showing, by affirmative proof, that they were untrue, and thus rendering the judgment void for want of jurisdiction.” “It thus appears that the current of judicial opinion in this State is very strong and uniform in fayor of the proposition stated by Jones, J. (in 6 Robt., 198), and if adopted here is decisive of the present case. It has not as yet, however, been directly adjudicated, and if sustained it must rest upon the local law of this State as it finds no support in adjudications elsewhere. There are reasons, however, founded upon our system of practice which would warrant us in so holding. The powers of a court of equity being vested in our courts of law, and equitable defenses being allowable, there is no reason why, to an action upon a judgment, the defendant should not be permitted to set up, by way of defense, any matter which would be ground of relief in equity against the judgment, and it is conceded in those States where the record is held conclusive that where the judgment has been obtained by fraud, or without bringing the defendant into court, and the want of jurisdiction does not appear upon the face of the record, relief may be obtained in equity.”

It is true that Ferguson’s case involved the question of forgery, but that makes no difference so far as the jurisdiction of the court is concerned. Whether the appearance is forged or unauthorized, the court obtains no jurisdiction of the person, and in all such cases relief may be obtained in equity, according to the decision of the Court of Appeals in the case of Ferguson.

This action is brought to set aside a judgment, and all the proceedings thereunder, in an action to foreclóse a morteas'e. The complaint alleges, among other appropriate tilings, that the summons in the action, nor any other papers therein, were served on the plaintiff in that action, and that they never appeared therein. Thus it appears by the judgment roll that one William De Yigne appeared for them as their attorney in that action, and admitted service of a copy of the summons in the action, except notices of sale and surplus; that they did not authorize him or any other person to appear for them, and had no knowledge or information of the action, or any proceeding therein, or in the sale of the premises until the 28th day of January, 1877, and that De Yigne fraudulently and corruptly appeared for them as their attorney in the action, without any authority from them so to do.

On the trial the complaint was dismissed, on the ground that it did not contain facts sufficient to constitute a cause of action. As the law has been since interpreted by the Court of Appeals in Ferguson’s case, this decision was wrong, and the judgment entered thereon must be reversed, and a new trial granted, with costs to abide the event.

Gilbert, J., concurred; Barnard, P. J., not acting.

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


author: Dykman, J.:

text:
    WILLIAM GRAHAM, Appellant, v. THE PHŒNIX INSURANCE COMPANY and other, Respondents.

      Policy of insurance — taken out by mortgagee — refusal of owner to furnish, proofs of loss — remedy of mortgagee.

    The defendant Gleavey executed to the plaintiff a purchase-money mortgage for $44,000, containing the usual clause for insurance. Subsequently she conveyed the property to her daughter, an infant of the age of three years, and the defendant The Phamix Insurance Company delivered to the plaintiff a policy upon a portion of the mortgaged premises, insuring the daughter as owner and the plaintiff as mortgagee to the amount of $2,500. After a loss had occurred, this action was brought by the plaintiff against the company, the infant owner and Gleavey, her guardian, alleging that the policy required proofs of loss to be furnished by the “ assured; ” that he had prepared proofs of loss which the company had refused to accept on the ground that they should he made hy the owner; that the defendant Gleavey kept the infant owner and herself concealed, and refused to furnish the necessary proofs unless plaintiff would pay her $8,000; and prayed that the defendant Gleavey he required to furnish proper proofs of loss; that the twelve month limitation for the "bringing of action upon the policy he not enforced as against plaintiff’s claim, and that the company he directed to pay the same.
    The defendants demurred, separately, on the ground that the complaint did not state facts sufficient to constitute a cause of action, and for an improper joinder of causes of action therein.

      Held, that no cause of action was stated against the company, as it was admitted that before it could arise proofs of loss must first he furnished, and this had not been done.
    That if any cause of action existed against the defendant Gleavey and her infant daughter, it was one in which the company had no interest.
    That the demurrers should be sustained.
    Appeal from an order sustaining demurrers to tbe complaint in tbis action, interposed by tbe defendants.
    Tbe complaint alleges tbat tbe plaintiff is tbe bolder of a bond and mortgage made by tbe defendant Gleavey (tben Mrs. Jack) for $44,000, dated October 7, 1874, on certain premises in Flatbusb, L. I., with tbe usual provision therein to procure insurance as collateral to tbe bond and mortgage.
    Tbat on November 2,1874, the mortgagor conveyed tbe premises, through Ohauncey E. Cook, to defendant Margaret E. Jack.
    That on February 25, 1876, and as further security for tbe mortgage debt, tbe Phoenix Insurance Company delivered to plaintiff, upon payment of tbe premium by him, its policy of insurance for $2,500, insuring Margaret E. Jack as owner and plaintiff as mortgagee, on tbe premises in question.
    That by tbe terms and conditions of insurance in tbe said policy, it was provided tbat tbe “ assured ” should give notice of loss and render proofs of loss; and, also, tbat all suits on the policy must be brought within twelve months, or be barred by tbat lapse of time.
    Tbat on tbe 8th March, 1876, tbe bouse mentioned in tbe policy was totally destroyed by fire; tbe loss amounting to $14,000.
    Tbat plaintiff immediately notified tbe insurance company, and he subsequently prepared and delivered to tbe company proofs of loss, made by tbe plaintiff as tbe party sustaining tbe loss and damage, and that tbe company, having received such proofs, insisted imt they were null and void, on the ground that Margaret E. Jack was the party assured, and the party by whom the proofs of loss were, by the terms thereof, required to be made, and that such proofs of loss by the plaintiff were null and void.
    That thereupon the plaintiff endeavored to procure proper proofs of loss to be made by the said Margaret E. Jack, and then ascertained that the said Margaret E. Jack was the infant child of the defendant Gleavey, aged three years. That prior to the loss, plaintiff had been informed by Mrs. Gleavey, that M. E. Jack was a sistei to the said Gleavey’s late husband, and was of full age. That aftei the loss, Mrs. Gleavey kept herself and her infant child concealed, and prevented the service of any papers, or the making of any demand upon them, or either of them, but caused plaintiff to be informed that if he would pay her $3,000, she, Mrs. Gleavey, would make, or cause to be made, the proper proofs of loss on behalf oí the child.
    That thereafter one Lindley, in pursuance of an order made by this court in proceedings instituted by the plaintiff, presented proofs of loss to the insurance company, which are still in possession of the company.
    That on the 10th August, 1816, the insurance company gave notice-in writing to Lindley that the proofs so presented were.not accepted or recognized by the company; that they denied his right, power and authority to make or serve any such papers, or that the papers had any force, etc., whatever; also, that they had not, aud did not, waive or dispense with full performance of every provision, etc., contained in the policy, and did not admit any liability for the destruction of, or damage to, the property, etc. And the company has ever since insisted, and continues to insist, that all such proofs of loss, made either by the plaintiff or by Lindley, were in all respects null and void, etc.
    That there is danger that such claim and position of the company is well founded, and that it may be yet ultimately held that the proofs of lo'ss so served, whether by the plaintiff or Lindley, were and are defective and insufficient, and may not form a compliance with the terms of insurance in the policy, sufficient to enable the plaintiff to maintain his action thereon; and, also, that proper proofs of loss can only be made by the infant, or by her general guardian, or in case of their refusal, neglect or omission so to do, by some person properly appointed by this court in an action like the present, on proper proceedings had for the purpose. That said plaintiff lias, made every possible effort to induce said general guardian to make the necessary pi oofs, but has been and is unable to induce her to do so, or to procure any interview with her, or to communicate with her; that the twelve months from the date of the loss will expire March 8, 1870, and the plaintiff apprehends that the company will thereupon insist that all right of action in his favor on the policy will be forever barred; and he is, therefore, in great danger of losing all benefit, claim and demand against the insurance company, or for the loss, by reason of the fraudulent conduct óf the defendant Gleavey. That the infant and said Gleavey are both insolvent, and that the money secured by the said bond has become due, and plaintiff has foreclosed the mortgage, recovered judgment, and purchased the mortgaged premises at the sale for $1,000, all the residue of the amount due on the bond being due plaintiff as a deficiency on the sale.
    The prayer for relief was for such relief as plaintiff may be entitled to in the premises.
    That defendant Gleavey be ordered and directed to make, or that some projjer person be appointed as special guardian to the infant to make, and who shall make, the necessary and proper proofs of loss under the policy.
    That the corporation be adjudged to pay the amount specified in the policy of insurance after the making of the proper proofs.
    That the limitation of time in the policy of insurance mentioned be not allowed to attach or take effect as against the plaintiff.
    That the plaintiff may recover from the defendant the money mentioned in the insurance, being the loss and damage by him sustained.

      I/ueien Birdseye, for the appellant.

      If. B. Hoxie, for the Phoenix Insurance Company, respondent..

      Weriiberg c& Reilly, for the respondent Gleavey.
   Dykman, J.:

This action cannot be maintained in its present aspect. If the plaintiff has any action against Margaret Elliot Jack, it arises from the duty which she owes him to make the proofs of loss of her buildings to the insurance company, to the end that he may collect the insurance money on account of his debt secured by her mortgage. "Whether she owes him this duty need not be decided now in the view we take of the case.

Neither is it necessary for us to determine what, if any, duty is due from the defendant, Ellen Elliot Gleavy to the plaintiff, or what, if any, action can be maintained against her by the plaintiff.

It is entirely clear that the complaint contains no cause of action against the insurance company in conjunction with the other defendants. If any cause of action exists in the plaintiff’s favor against the insurance company, it is one at law to recover the loss by vii’tue of the policy of insurance. If his cause of action is now complete, that is, if he is now situated so as to maintain such action, he can do so, but that must be brought against the insurance company alone.

If he is not now in a condition to bring such an action, and it is necessary to procure something to be done by either or both of the other defendants before he can do so, then that must be procured in an action in which one or both are defendants. The insurance company has no interest in, and cannot be made a party to, such a-* action, and the other defendants have no interest in, and cannot be made a party to, an action to recover on the policy for the loss.

This simple statement is sufficient to show that the two causes of action, or two kinds of relief which the plaintiff wants, do not affect all the parties to this action.

Whether the limitation of time contained in the insurance policy shall be allowed to have effect, may be determined in an action against the insurance company alone.

The order appealed from must be affirmed, with costs and disbursements.

Gilbert, J., concurred ; Barnard, P. J., not acting.

Order sustaining demurrer affirmed, with costs.


text:
    In the Matter of the Petition of THE CONEY ISLAND AND BROOKLYN RAILROAD COMPANY to acquire title to land in Kings county, now of EDWARD RIDLEY.

      Railroad company — location of route by statute — what map of route, sufficient.

    A railroad company ,was organized by an act of the legislature and authorized to construct its road between two points, and over certain streets' and roads therein named. Reid, that this constituted a practical location of its route by the legislature and dispensed with the notice of the location of its route and of the filing of the map required by the general railroad act.
    The map as filed showed a single line running, along a road, and a notice upon it stated that the center line of the railroad track was eighteen feet from the westerly line of the road. Relcl, that this showed with sufficient certainty the location of the road and the land to be taken.
    Appeal from an order appointing commissioners to ascertain the compensation to be made by the petitioning railroad company to owners of certain lands to be taken for it.

      TGliilij) 8. Crooke, for the appellant Ridley.

      Edgar M. GuTlcn, for the petitioner, respondent.
   Dykman, J.:

The Coney Island and Brooklyn Railroad Company was organized to construct and operate a railroad from Fulton ferry, in the city of Brooklyn, to a point on Coney Island, and by chapter 324 of the Laws of 1861, it was made lawful for the company to construct and operate its railroad from and to those .points through and over the several streets, roads and avenues designated in that law, including the locus in quo.

This was a practical location of the road by the legislature, and dispensed with the necessity of any notice of location by the company. Ordinarily, when a route for a railroad is selected and a location is made, it is liable to be changed at the instance of the owner of the land over which the road is laid, and hence the statute requires that a certain notice of such location shall be given to compel the landowner to move in the direction of such change, if he shall so desire.

This statute can have no application to a case of this hind, for the reason that the route is fixed and determined, and is not liable to be so changed. This shows that no notice of the filing of the map, or of the route adopted, was necessary.

As we understand the case, the map shows a single line running along the road, and has upon it a note which states that the center line of the railroad track is eighteen feet from the westerly line of the Coney Island road. This map showed the location of the'railroad with sufficient certainty and the extent of the land proposed to be taken.

There was no difficulty in determining what land was proposed to be taken for the railroad, and we do not think the objections to the map are well-founded. Since the map was filed the road has been widened, and, as so widened, the center line of the track is thirty-three feet from the present west line of the road instead of eighteen feet, as stated in the note on the map, and hence the necessity of the amendment which was allowed by the coiu't. This amendment was necessary, and the court had full power to allow it.

"Whether the motive power on the contemplated road is to be steam or horse is immaterial. In either case the owner of the fee is entitled to compensation for the additional burden imposed upon it, and the proceeding instituted is entirely proper to ascertain what it shall be. The land proposed to be taken is necessary for the use of the railroad and for its operation, and all the facts exist which are necessary to authorize the railroad company to make the application and procure the appointment of commissioners. The case is brought within the law and within the railroad policy of this State, and the order appealed from must be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concurred; Gilbert, J., not acting.

Order affirmed, with costs and disbursements.


text:
    MARIA L. STRONG, Appellant, v. CITY OF BROOKLYN, Respondent.

      Judgment in ejectment— stag of proceedings on — not proper, to gime time for exercise of right of eminent domain.

    The plaintiff brought an action to recover possession of a strip of land held by the city of Brooklyn, and recovered a judgment therein, declaring him entitled thereto. Subsequently, the city applied for and obtained an order staying all proceedings on the plaintiff’s part to enforce his judgment, on the ground that it was about to procure a condemnation of the land under the exercise of its right of eminent domain. Held, that it was erroneous to grant the order, and that the same should be vacated.
    Appeal from an order staying the plaintiff from executing a judgment for the recovery of a strip of land in the possession of the city of Brooklyn, and used by it for public purposes; the defendant alleging that it was about to condemn the land in question by the exercise of its right of eminent domain.

      & B. Higenbotam, for the appellant.
    . Wm. G. Be Witt, for the respondent.
   Dykman, J.:

Courts sometimes stop the execution of their judgments in the exercise of the power and control which they have over them and over the process which goes to enforce- them. Generally, however, such stays are granted by reason of something which has taken place pending the litigation, or after the rendition of the judgment. If no reason of that kind exists, the judgment must have its full force, and the party in whose favor it has gone must have all the legal remedies which are usually awarded for its enforcement. This is for the very obvious reason, that the judgment is given to the party to enable him to obtain that to which the law has adjudged him entitled. A money judgment is given to a party because a legal claim has been established, and the court will not stay the execution of such judgment and the collection thereof upon an allegation of the party against whom it exists, that he can make a settlement with the judgment creditor.

Now, these principles are very plain, and none will dispute them, and yet it seems quite evident they have been disregarded in making the order which is the subject of this appeal.

The plaintiff obtained judgment in this action for the recovery of a strip of land, which was in the possession of the city and used for public purposes. Thereupon the defendant, upon an allegation that it was about to condemn this land for public purposes by right of eminent domain, obtained the order appealed from which stays the plaintiff from executing the judgment which the law has solemnly awarded, after a long litigation and a full presentation of the merits of the case. There is no claim of any thing new in the case, either pending the litigation or subsequent to the judgment. The plaintiff has the legal right to the possession of the land — the law has awarded it, and the defendant wrongfully withholds it. What the defendant now says is, substantially, that it is contemplated to take this land at a forced sale, and, therefore, asks to have the plaintiff held off.

The proceedings to condemn the land, assumes that it belongs to the plaintiff, and that the defendant cannot hold it without such proceedings, and it is difficult to find any principle that will allow the defendant to hold it until they are taken and consummated. If this order is right and can be maintained, then the defendant need not condemn the land at all. It has possession, and, so long as this order stands, the plaintiff cannot obtain it, and no necessity exists for the defendant to take the land or pay for it. It has it without either, and the plaintiff is powerless to interfere. This court has first made a judgment which declares the plaintiff entitled to the possession of the premises, and then without any allegation of an}' charge in respect to the legal rights of the parties, and only on the claim that the defendant can acquire the land by purchase and thus hold it, has made an order forbidding the plaintiff to take it.

Suppose the defendant was a private individual, and on a statement that he could oblige the plaintiff to sell him the premises at any time he saw fit to do so, should ask the court to stay the execution of the judgment, would it be done ? Certainly not; and yet how does such a case differ in principle from this %

These considerations show very clearly that the order appealed from rests on no legal foundation and cannot stand. Order appealed from reversed.

Present — Barnard, P. J., and Dykman, J.; Gilbert, J., not acting.

Order reversed, with costs and disbursements.


author: Dvkman, J.:

text:
    WILLIAM McCAFFERTY, Respondent, v. NICHOLAS H. DECKER, Appellant.

      Promise made for benefit of third party — consideration for — enforcement of

    The defendant contracted with a railroad company to build its road, and agreed that in all cases of non-payment of laborers by the contractor the company might pay and deduct the same from the amount due the contractor. Defendant subsequently sublet a portion of the work to P. & H., who assigned the subcontract to one McKee, who absconded without paying the amount due to his laborers. The plaintiif had sold goods to the laborers on credit. After McKee absconded the defendant paid the laborers the amount due for wages, less what was due to the plaintiff, they agreeing to this deduction provided he would pay it to the plaintiff.
    In this action brought by the plaintiff to recover the amount so deducted, held, that, conceding that there was a promise by the defendant to pay the money to the plaintiff that the same could not be enforced as there was no consideration therefor, the defendant not having owed the workmen and no liability oñ his part having arisen under his contract with the railroad company as no lien had been put on the road and the company had paid nothing.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and for an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought by plaintiff to recover for goods sold to one McKee and others.
    The defendant entered into a contract to build a portion of Spuyten Duyvil and Port Morris Railroad, the contract providing, among other things: It is further agreed that the railroad C( mpany shall, in all cases of non-payment by the contractor, of all and any sums of money unpaid to laborers for labor at any time actually performed in constructing said railroad, be authorized to pay the same to such laborer or laborers, as the same shall be due; and if any suits are commenced under any statute now or hereafter to be passed against said company for laborers’ 'wages on said railroad, the said company may pay all damages, recoveries, costs, expenses and counsel fees, and charge the same to said contractor; and the company may, from time to time, retain what shall be necessary for their protection, and the contractor shall make up and pay to said railroad company any deficiency.
    The defendant contracted with John E. Fisher and A. S. Ilart to build a portion of said road embraced in his contract with the railroad company. The latter contract was assigned to Alexander McKee, of Allentown, Penn.
    The goods, to recover the purchase-price whereof this action is brought, were sold by plaintiff in October, 1870, first, to McKee; second, to laborers of McKee; and, third, to persons who boarded laborers of said McKee.
    McKee, after he had been paid what was due him upon said contract, and shortly before the time of payment of laborers for the month of October, absconded; and about the seventeenth of November the defendant, through his nephew, Franklin Decker, paid, with the money of defendant-, the balance extended upon McKee’s pay roll as due to laborers, deducting from the wages due to each laborer the amount due to the plaintiff. The laborers consented to the reduction, provided the defendant would pay it to the plaintiff. The ' defendant having failed to pay the plaintiff, this action was brought to recover the same.

      Odie Close, for the appellant.

      C. C. & S. F. Prentiss, for the respondent.
   Dvkman, J.:

The defendant was the contractor to build the Spuyten Duyvil railroad. He underlet a part of the work to Fisher and Hart, and their contract was assigned by them to McKee, who absconded without paying his laborers, his storekeepers or his boarding-masters. Thereupon the defendant undertook to pay the laborers, and sent his clerk and his nephews to do so. The mode of procedure was stated by the plaintiff in his statement, as follows': “As each laborer’s name was called the clerk said you have worked so many days? Yes, sir. There is so much due to McOafferty out of these wages, are you willing it should be deducted? Yes, provided you will pay it over to Mr. McOafferty; and it went on in that way during the first day with all the laborers. Q. Now on the second day? A. On the second day. Q. The eighteenth? A. On the eighteenth the boarding-house keepers were settled with. Q. The balance of the laborers and the boarding-house keepers ? A. The balance of the laborers and boarding-house keepers; I had some claims against the boarding-house keepers, and I then presented these claims, and when the accounts were made up the clerk said to the boarding-house keepers, there is so much due Mr. McOafferty from your account, are you willing I should pay it over to him ? Yes, provided you pay it over to him. Q. On the previous day, had these accounts due the boarding-house keepers been deducted from the amounts due the laborers ? A. Yes, sir.”

The manner is thus stated by one of the defendant’s witnesses who assisted in making the payment, and the statement, is uncontradicted:

“ Q. You took from these laborers receipts in full for their wages for the month of October ? A. No, sir; we just took receipts for what was paid them ; the balance was extended; say, for instance, a man worked twenty-six days at a dollar a day and that was twenty-six dollars, his board bill was ten dollars and his cash five dollars, it would leave a balance of eleven dollars due the laborer; he- was paid eleven dollars and he receipted for eleven. Q. In full? A. No, sir; he would just sign his name received eleven dollars; that is all the receipt there was to it.”

Now this action is brought by the plaintiff for the recovery of the money due him from the laborers and the boarding-house keepers, upon the claim that the defendant has retained the same from the wages of the workmen and promised to pay it to him, and a recovery has been had in favor of the plaintiff upon that theory. The judge charged the jury that the defendant was not liable unless he retained the money due with the consent of the workmen, to whom tbe balance was paid, and promised to pay it to the plaintiff.

Money is always retained when it is not paid out, and in that sense tbe defendant retained tbe money which tbe plaintiff now claims to recover, and in no other sense. It did not belong to tbe laborers and tbe defendant did not owe it to them and was under no legal obligation to pay it to them. They left nothing in bis bands for they bad nothing there to leave. Tbe defendant kept no money that belonged to any person but himself. "What bo paid bis workmen was bis own and what be did not pay them was bis own. lie paid them what be did and promised to pay tbe balance of tbe amount due them to tbe plaintiff.

"Was there any consideration for that promise? Tbe defendant received no benefit. No consideration moved to him, and no barm went to t-lio plaintiff, for be relinquished neither bis claims nor any security for tlieir payment. Tbe promise of tbe defendant was not given or taken as a substitute for tbe original demands of tbe plaintiff, and there was no request for any forbearance to sue. There was, therefore, no consideration to sustain tbe promise and it was void. Tbe agreement does not reach tbe statute of frauds, but is made void by general principles of law.

It has been said that tbe defendant used tbe plaintiff’s claim to pay bis own debt, or a debt be assumed to pay, and has thus incurred a liability to pay tbe plaintiff. If this proposition were true, tbe conclusion would not follow, but it is not true. In no sense lias tbe defendant used tbe plaintiff’s claim. All be did wa3 to pay tbe workmen a certain sum of money, take a receipt for it, and promise to pay tbe balance that was due them to tbe plaintiff. He did not pay tbe workmen in full, and did not take from them receipts in full.. He only took receipts for what be paid and left a balance unextinguished and tbe plaintiff’s claim undisturbed. lie neither used it nor interfered with it in any way, except to promise to pay it.

But suppose be did use it and prejudiced the plaintiff in respect to it in any way. Tbe only effect is to make a consideration for tbe defendant’s promise, and so carry the case to tbe statute of frauds, to be determined by it, and then we have tbe case of a promise upon sufficient consideration, not in writing, to answer- for tbe debt of a third person. Such a promise is within the statute of frauds In Mallory v. Gillett (21 N. Y., 412), the plaintiff had a lien upon a canal boat for repair's put upon it, and in consideration of the relinquishment of the lien and forbearance to sue the claim, the defendant made a promise, not in writing, to pay the claim, and the Court of Appeals held that the promise was void under the statute, because no new consideration moved to the defendant and the promise was not in writing. That is decisive of this case on this point.

There is a class of cases of which Lawrence v. Fox (20 N. Y, 268) is a good illustration, which holds that where one person, for a valuable consideration, makes a promise to another for the benefit of a third, that third person may maintain an action on the promise; but the Court of Appeals has recently decided in the case of Vrooman v. Farner, not yet reported, that “ to give a third party who may derive a benefit from the performance of the promise a right of action there must be, 1st. An intent by the promisee to secure some benefit to the third party; and, 2d. Some privity between the two, the promisor and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him an equitable claim to the benefit of the promise or an equivalent from him personally. There must be a sufficient consideration passing between the promisor and his immediate promisee, and then the third person must adopt the promise and then bring himself into privity with the promisor, but not otherwise. If there is no consideration, the promise is void as in all other cases.”

Now, in this ease there was no consideration passed to the defendant for his promise. If he had owed the workmen, and they had left the money which he owed them, or any part of it> in his hands on a promise to pay it to the plaintiff in discharge of their liability to him, then the plaintiff could have adopted that promise and maintained his action against the defendant upon the principles of Lawrence y.Fox and kindred cases. But he did not owe the workmen, and the principles of those cases cannot be invoked in the plaintiff’s aid.

The liability of-the defendant to pay the laborers under his contract with the railroad company has no effect on the case. The laborers had power to put a lien on the railway, which would compel the company to pay tliem, and tlien tbe company could obligo tbe defendant to reimburse it under bis agreement. But no sucb lien was put on tbe road, and therefore no sucb liability attached, and no liability of tbe defendant can be worked out in that way.

Judgment reversed. New trial granted, costs to abide tbe event.

Gilbert, J., concurred in tbe result; Barnard, P. J., not sitting.

J udgment and order denying new trial reversed and new trial granted, costs to abide event.


author: D TEMAN, J. :

text:
    FRANCIS B. WALLACE and JOHN H. KETCHAM, Appellants, v. THE LONG ISLAND RAILROAD COMPANY, CONRAD POPPENHUSEN, ADOLPH POPPENHUSEN, HERMAN C. POPPENHUSEN, ALFRED L. POPPENHUSEN, HERMAN FUNKE, MORRIS FRANKLIN, E. B. HINSDALE, WILLIAM A. HAVEMEYER, WILLIAM KEVAN, E. B. STONE, EDWARD E. SPRAGUE and D. N. ROPES, THE FLUSHING, NORTH SHORE AND CENTRAL RAILROAD COMPANY, and THE SOUTHERN RAILROAD COMPANY OF LONG ISLAND, Respondents.

      Railroad — lease of competing road — connecting railroads, what arre — contract between corporations having the same directors.

    By chapter 444 of 1859, The Long Island Railroad Company was authorized to take a lease of any railroad that might be connected therewith. Held, that, under this provision of the statute, a lease might be taken of a competing road, provided that, when united, the two roads were capable of forming continuous lines.
    That it was not necessary that the leased road should connect with the Long Island road at its terminus. It might be a road which intersected the latter road at any point.
    That such a lease of a competing line would not be void under the exception contained in chapter 917 of 1869, authorizing a consolidation of the stock, franchises, etc., of separate corporations, except of railroads running on parallel or competing lines.
    The fact that the same persons were directors of the leasing and leased railroad, although it might entitle either corporation to do so, did not justify one or more stockholders in bringing an action to have the contract declared void.

      Appeal from an order dissolving a preliminary injunction granted to the plaintiffs herein and denying their motion to continue the same.
    The plaintiffs individually and on behalf of themselves, and of such other stockholders and bondholders of the Long Island Railroad Company, as might elect to come in and contribute to the expenses of this action, showed among other things, that the plaintiffs were interested as stock or bondholders, or both, in the Long Island Railroad Company ; also, in the New York and Rockaway Railroad Company, which had been leased and its bond guaranteed by the Long Island Railroad Company; also, in the Smithtown and Port Jefferson Railroad Company, which had been leased and its bonds guaranteed by the Long Island Railroad Company, or in one or more of the aforesaid companies.
    That on May 3, lS^G, the Long Island Railroad Company made an agreement for the lease of the Flushing, North Shore and Central Railroad Company, and about the same time a similar contract, for the leasing of the Southern Railroad Company of Long Island, the Long Island Railroad Company paying each of the two last named companies an annual rent greatly exceeding the net earnings of said roads respectively.
    It was further claimed that the Flushing, North Shore and Central Railroad Companies and the Southern Railroad Company of Long Island were not connecting roads with the Long Island railroad.
    That several of the parties defendant in this, action, who are directors of the Long Island Railroad Company, are also directors and officers in both the Southern Railroad Company of Long Island and the Flushing, North Shore and Central Railroad Company.
    That the defendant, Conrad Poppenhusen, and others, acting in concert with him, have caused a meeting of the stockholders of the Long Island Railroad Company to be called, and he, together with other stockholders of said company, holding sufficient stock so to do, proposed and threatened that they would at such meeting take stick action as would result in the said Long Island Railroad Conpany guaranteeing the payment of the principal or interest, or both, of the said bonds of the Flushing, North Shore and Central Railroad Company, and also of the Southern Railroad Company of Long Island, as it was provided in tlie aforesaid agreements of lease might be done.
    That such guarantee would result in greatly depreciating the stock and bonds belonging to the plaintiffs and others.
    The complaint asked that the Long Island Railroad Company, its agents and the other defendants in this action be enjoined from carrying out the agreements above referred to.
    A temporary injunction, with an order to show cause why the defendants should not bo further restrained during the pendency of the action was granted; and on the return day thereof, the injunction was vacated, Judge Gilbert writing the following opinion :
    Gilbert, J.:
    By chapter 444 of the Laws of 1859, the Long Island Railroad Company were “authorized to take and accept a lease of any railroad on Long Island then connecting with said Long Island railroad, or that might thereafter be connected therewith, and to run and operate and hold the same under the general powers and subject to the liabilities of the charter of said Long Island Railroad Company, and to become the purchaser in whole or in part of the stock or bonds issued or to be issued by said connecting road or roads, built or to be built, or to guarantee the payment of said bonds, principal and interest, if the giving of such guarantee shall have been approved at a meeting of the stockholders of said company, by two-thirds interest of the stockholders attending said meeting.” The requisite consent to the giving of the guarantee has not been obtained, and the company disclaims any intention of availing itself of the power on that subject granted by the act. There is, therefore, no occasion at present for an injunction restraining the giving of the guarantee. The statute cited, as it seems to me, conferred upon the conxpany ample power to take the leases of which the plaintiffs complain. It sufficiently appears that the railroads leased connect with the Long Island railroad. All of them actually intersect it. A competing road is not on that account a non-connecting road, nor does the language of the statute embrace an exception of that kind. Such connection need not be at a terminus or at any particular place. It is enough that they are united so as to bo capable of forming continuous lines. Nor is the power qualified by chapter 917 of the Laws of 1809. That statute authorizes a merger and a consolidation of the capital stock and franchises, as well as the property of separate corporations, and the ninth section merely contains a limitation of the authority granted by that act. Its language is “ no companies or corporations of this State whose railroads run on parallel or competing lines, shall be authorized by this act to mprge or consolidate.” That prohibition cannot effect the specific power to take leases granted by the act of 1859.
    The respective lessors and lessee, it is true, operated parallel and competing lines, and the main object of all the parties to the leases, no doubt, was to get rid of a competition which had proved injurious to the interests of each. Still those leases did not work a merger or consolidation of the capital stock or franchises of either corporation, and so are not dependent upon the power granted by the act of 1869, but each'lease is a legitimate exercise of the power granted by the act of 1859, notwithstanding the effect of it is to merge, during the term thereof, the lessor and lessee into one corporation, so far as the use of the property belonging to them respectively is concerned. I cannot say that the directors of the Long Island Railroad Company have abused the power mentioned, or that they fraudulently entered into the leases in question. They may have erred in judgment, but the court has- no power to-control the lawful exercise of 'the discretion vested in'them as officers of the corporation. I see no reason for imputing to them bad faith or fraud. That being so, I am of opinion that a stockholder in that company is not entitled to have the 'leases avoided in opposition to the wishes of the parties to them. The directors are no doubt, in one sense, trustees of the stockholders, but, primarily, they are trustees of the corporation. If the corporation, acting with the approval of the holders of the major part of the stock thereof, prefer to abide by the leases, they cannot be avoided on the complaint of a minority of the stockholders against the will of the corporate body so manifested, and in absence of evidence that the holders of the major part of the stock disapprove the acts of the directors, their apprqval thereof must ■ be presumed. In other words, the leases in question, although infra vires, may be voidable at the election of the corporation. But the plaintiffs are not entitled to make such election in behalf of the corporation, Nor can the court compel the corporation to make the election against the will of the holders of a major part of the stock thereof. The management of the concerns of the corporations has, by the charters, been committed to the directors thereof respectively, and their acts within the corporate powers, done in good faith, are valid and binding, not only on the corporation, but on each stockholder thereof. The rule that persons acting in • a fiduciary capacity shall not directly or indirectly make any profit by means of such acts, or be interested in contracts made by their principals, undoubtedly applies to directors of corporations. It is a, valuable principle, and ought not to be impaired by any subtle or refined distinctions. Still the mere fact that the same persons were directors of the corporation which made the lease, and of that which took it, is not of itself sufficient to avoid the contract at the instance of one or more stockholders against the will of the corporation. That fact alone might entitle either corporation to avoid the lease, but I apprehend it does not give that right r to a stockholder. In the cases cited on behalf of the plaintiffs, and in all' the cases I have met with, where contracts have been avoided on that ground, the relief was sought or assented to by the corporation. Here all the corporations whose acts are assailed insist that they are valid and mutually beneficial, and that they be upheld. It seems to me, that to grant the injunction asked for would be to annul the acts of trustees against the wish of their cestuis 'que trust, or the acts of agents which have been ratified by their principals, and which the latter now, through their counsel, before the court, insist shall be carried into effect. I know of no principle which would warrant such a proceeding.
    The motion to continue the injunction must be denied, and die injunction must bo dissolved with ten dollars costs.
    Fullerton, Knox dk Crosby, for the' appellants.

      Hinsdale dk Sprague, for the respondents.
   D TEMAN, J. :

Order appealed, from affirmed at General Term on the opinion of the Special Term.

Barnard, P. J., concurred; Gilbert J., did not sit.

Order denying injunction affirmed upon opinion at Special Term,


author: Davis, P. J.:

text:
    MARGARET CAVANAGH, Administratrix, etc., Appellant, v. WILLIAM. B. DINSMORE, as President of the Adams Express Company, Respondent.

      negligence of servant— when master not liable for.

    Upon the trial of this action it appeared that plaintiff’s intestate was, while crossing Chatham street, in New York, run over and killed by one of defendant’s trucks, through the negligence of the driver; that the driver had delivered merchandise at the office of defendant, on Broadway, and had then been directed to take the truck to the stable on Church street and put it up; that at the corner of Broadway and Canal street he met another of defendant’s drivers, and, at his request and as a personal favor to him, drove to Henry street, about one mile distant, and took a trunk, belonging to the other driver, to deliver it in Fulton street; the accident occurred while he was going to the latter place.
    The defendant had not authorized the driver to go to Henry street for the trunk, nor did they know that he had done so until after the accident occurred. Seld, that the driver was not acting in the business of his master at the time of the accident, and that the defendant was not liable for injuries occasioned by his act.
    Appeal from a judgment entered on a dismissal of tbe complaint at the New York Circuit.

      Jacob A. Gross, for the appellant.
    The principle deducible from the English and American cases on this subject of the master’s liability for tlie acts of tbe servant, inevitably leads to tbe conclusion tbat in tbe present case tbe servant was in tbe employ of his master until be arrived at tbe end of bis journey, reached bis stables (no matter by wliat route) and put up bis horses as directed. (Joel v. Morrison, 6 Carr. & P., 501; Heath v. Wilson, 9 id., 601; Mitchell v. Crasweller, 13 C. 33., 237-242; McManus v. Cricket, 1 East, 106,107; Potter v. Rae, 2 C. 33. [N. S.], 606; Sheridan v. Charliclc, 4 Daly, 338,342; Cosgrove v. Ogden, 49 N. Y. [4 Sickels], 257; Cleghorn v. The H. Y. G. andiH. R. R. R. Co., 56 id., 44 ; Kvmball v. Cushman, 103 Mass., 194/198; Sherman and Red. on Negligence, §63; Cilmartin v.,The Mayor, etc., 55 Barb'., 239.) Tbe requests to charge were improperly denied. Whether tbe servant was on bis master’s business acting within tbe scope of his employment, bad bis master’s approval or implied consent, or was actually and in fact engaged for bis master’s interest at tbe time of tbe injury, were proper questions for tbe jury. (Rounds v. Del., Lac. and W R. R. Go., 64 N. Y., 137; Jackson v. The Second Ave. R. R. Co., 47 id., 274; Goodman v. Eennell, 1 M. & P., 241.)

      Charles M. Da Costa and Sami. A. Blatchford, for the respondent.
    It is tbe settled rule of law in this State and also in England that a master is not liable for injuries committed, either willfully or negligently, by a servant when be is not acting by bis master’s express authority or within tbe scope of bis enpployment, and tbe testimony on tbe trial clearly showed tbat tbe servant of tbe Adams Express Company was not, at tbe time of tbe injury to tbe plaintiff’s intestate, acting within tbe scope of bis employment. (1 Parsons on Contracts, 87; Sheridans. 4Daly, 338; Sherman&Redñeldon Negligence, 69; Wright v. Wilcox, 19 Wend., 343; Fraser v..Freeman, 43 N. Y., 566; LLiggins v. Watervliet Turnpike Co., 46 id., 23 ; Isaacs v. Third Ave. R. R. Co., 47 id., 122; Rounds v. Del., Lack, and West. R. R. Co., 64 id., 129; Bard v. Yohn, 26 Penn. State R., 482; Smith on Master and Servant,. 135; 75 Law Library, 135 [marginal paging 158]; Mitchell v. Crassweller, 13 C. 33., 237 [76 English Com. Law Reports]; Betts v. De Yitre, L. R., 3 Cbanc. App., 441; Storey v. Ashton, L. R., 4 Q. 33., 476 ; Rayner v. Mitchell, L. R., 2 C. P. Div., 357.)
   Davis, P. J.:

The plaintiffs intestate while attempting to cross Chatham street was run over and killed by a team and truck of the Adams Express Company, then in charge of one of their drivers. The evidence was sufficient to show that the injury and death were occasioned by the negligence of the driver. Upon examination of the driver, who' was called as a witness for the plaintiff, it appeared that on the evening when the injury and death occurred he had delivered at the branch office of the company at No. 638 Broadway, between Houston and Bleecker streets, a load of merchandise and had then been instructed to proceed with the horses and truck to the stables of the company in Church street and there put. up the truck and horses that on arriving at the corner of Broadway and Canal street he was met by another driver of the defendant’s, with whom he had made an arrangement to that effect during the day, and thence drove eastwardly to Henry street, distant about one mile from the corner of Canal street and Broadway, as a personal favor to his fellow-servant, and took away from there a trunk and valise belonging to his fellow-servant to carry to Eulton street; that while driving through Chatham street toward Broadway the injury to the deceased was occasioned. It was proved, also, that neither of the drivers had asked permission of any of théir superior officers to make use of the truck and horses for the purpose of removing such trunk and valise.

Upon proving this state of facts the plaintiff rested, and the defendants moved that the complaint be dismissed, upon the ground that at the time of the injury the defendant’s driver was not engaged in the service of the company but was doing a favor to a fellow-servant. The plaintiff asked the court to submit several questions to the jui-y, which request was refused. The plaintiff excepted severally to the refusals. The court dismissed the complaint. There was no disputed question of fact in this case. The several requests of the plaintiff were based upon the idea that the jury, from the undisputed facts of the case above stated, would be at liberty to reach legal conclusions different from those which rightly attach to the facts, or to imply therefrom other facts touching which no proof was given.

We think the court was right in declining to allow the case to gu to the jury upon any of the questions suggested by tbe learned counsel for the plaintiff.

Tbe departure of tbe driver from tbe ordinary route to tbe stables for tbe purpose of doing a favor to bis coservant, as stated in tbe evidence, was clearly an unauthorized deviation and not within tbe scope of bis duty. He canuot be said, within tbe authorities, to have been acting in tbe service of tbe defendants while engaged in going for tbe trunk and valise of bis coservant and in taking them to their destination. Tbe act was not only without tbe authority, but without tbe knowledge or consent of tbe defendant or of any superior officer of tbe driver. It is well settled that tbe master is not liable for injuries sustained by tbe negligence of bis servant while engaged in an unauthorized act, beyond tbe scope and duty of bis employment, for bis own or another’s purposes, although tbe servant is using tbe implements or property of tbe master in such unauthorized act.

It is not necessary to do more than to cite some of tbe elementary books and leading authorities on this subject. (Higgins v. Watervliet Turnpike Co., 46 N. Y., 23; Isaacs v. Third Ave. R. R., 47 id., 122; Rounds v. Del., Lac. cmd W. R. R., 64 id., 129; Sheridan v. Charlick, 4 Daly, 338; Wright v. Wilcox, 19 Wend., 343; Frazer v. Freeman, 43 N. Y., 566 ; Sherman & Red. on Negligence, 69, § 63; 1 Parsons on Contracts, 87; Storey v. Ashton, L. R., 4 Q. B., 476; Cosgrove v. Ogden, 49 N. Y., 257.)

Tbe judgment should be affirmed.

Brady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    GEORGE S. WRIGHT, Respondent, v. ABBIE J. FLEMING and others, Impleaded, etc., Appellants.

      Proceedings in Sv/rrogate’s Court — error in — a court of equity will not interfere to stony entry of decree, when a/n appeal lies.

    The plaintiff, in proceedings instituted by him before a surrogate for the final passage of his accounts, put in evidence instruments under seal, duly executed and acknowledged by several of the next of kin, releasing him from all liability growing out of his administration of the estate, and assigning to him their respective shares therein. Upon objections to their validity being made by the proctor of the parties executing them, the surrogate decided to exclude them, and directed the entry of a judgment against the plaintiff in favor of the parties by whom they were executed. The plaintiff thereupon brought this action, to which all of the next of kin, except the plaintiff himself, were made defendants, setting forth the above facts; that the amount of the judgment proposed to be entered would exceed $100,000; that the entry of such a judgment would be greatly injurious to plaintiff’s business; that such decree would operate in law as an estoppel against him; that he could not contest its validity nor resist its collection except by the slow course of an appeal, pending which he would receive irreparable injury, and prayed that the defendant be restrained from entering any decree by which he should be directed to pay any sum to the parties executing the said releases.
    Upon a demurrer interposed by the defendants, on the ground that the complaint did not state facts sufficient to constitute a cause of action, % eld, that the demurrer was proper and should be sustained; that plaintiff’s remedy for any error committed by the surrogate was by an appeal from the judgment, and that a court of equity would not interfere.
    Appeal from an order of tbe Special Term in tbe second department overruling a demurrer, and directing that plaintiffs bave judgment on tbe complaint.

      George Worris and Alexander Thain, for tbe appellants.
    If tbe surrogate rightfully disregarded tbe releases tbe plaintiff cannot be beard to complain; if be erred in so doing plaintiff’s remedy is by appeal, as would be tbe case in tbe event of any court, inferior or otherwise, striking out or disregarding evidence which it was its duty to consider, or in excluding evidence which it should bave received (7 Hun, 609; Willard’s Equity, 357, 358; Snedelcer v. Pearson, 2-Barb. Ch., 107; Maries v. Wilson, 11 Abb.; 87; Smith v. Moffat, 1 Barb., 65; Wordsworth v. lyon, 5 How. Pr., 463; Boleee v. Ha/mersley, 16 How., 461; Vilas v. Jones, 1 N. Y., 283.)

      Glarleson Pf. Potter, for the respondent
    It is the province of this high court of equity to restrain parties from proceeding at law, when their jiroceedings are oppressive and the law furnishes no sufficient remedy against them. (14 N. Y., 9; 32 id., 105; 16 Barb., 536; 1 Barb. Ch., 406; 11 id., 11; 1 Sandf. Oh., 1; Pf. Y. and Pf. PL. Go. v. Schuyler, 17 How., 462; Erie Go. v. Ramsey, 45 N. Y., 647, 648, 649.) In the days of the Court of Chancery few injunctions were ’ more common than those restraining the prosecution of an action because of a release or defense subsequent to a trial. (Mayor v. Third Ave. Go., 54 N. Y., 161; 1 Q. B. D., 499; 11 Am. Law Rev., 282;,28 How. Pr., 4; 1 Duer, 624; 16 How. Pr., 435; 2 Abbott, 121; 3 Daly, 172.)
   Davis, P. J.:

Pending proceedings before the surrogate of Westchester county for the final settlement of the accounts of the plaintiff, as administrator of the estate of John T. Wright, deceased, the plaintiff obtained from several of the next of ldn of his intestate, instruments under their respective hands and seals, releasing and discharging him as such administrator, from all claims growing out of his administration of the estate, and assigning to him the shares of the said next of kin, respectively. These instruments, duly acknowledged in such form as to make them evidence, were presented to, and put in evidence before the surrogate.

The proctor and solicitor who represented the several parties who had executed the releases, disputed the effect, force and. validity of the said releases, and asked the surrogate to disregard them and render a decree against the plaintiff and in favor of the several next of kin who had executed such releases, as though the same had not been made.

The surrogate decided to disregard such releases, and announced his intention to make and enter a decree against the plaintiff for a large sum, in favor of the parties who had executed such releases, as well as the other next of kin. And on a subsequent application by plaintiff, the surrogate refused to make a separate order rejecting or disregarding such releases.

The plaintiff thereupon brought his suit in equity in this court, alleging the several facts, and asserting that a decree was about to be made in favor of the next of kin, who had executed such releases in disregard of those instruments, for a large amount, exceeding §100,000, which decree would be greatly injurious to plaintiff’s business and credit, and do him irreparable injury; inasmuch as'he was advised that such decree would opeiate in law as an estoppel against him, so that he could not contest its validity nor the amount due and owing to the next of kin collaterally, nor resist the collection of the same, except by the slow course of an appeal, pending which he would receive irreparable injury which no reversal could make good.

The plaintiff," for his relief, prayed that the defendants', who were all of the next of kin except the plaintiff himself, and the children of a deceased sister, might be enjoined and restrained from entering any decree by which he should' be required to make any payment, or be adjudged to pay any thing as due from him to any of the defendants by wlipm he had been released. The- defendants demurred to -the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled at the Special Term in the second department, and judgment rendered in favor of the plaintiff on the complaint.

And it was ordered and adjudged that the defendants be enjoined from entering any decree, by which the plaintiff should be required to make any payment whatever to the defendants who had executed such releases; but that the order should not be so construed as to prevent the entry of a decree wherein and whereby the surrogate should give effect to such releases, and discharge the ’plaintiff from, all liability in respect to the distributive shares of the persons who had executed the same.

From this order the defendants appealed to the General Term. The appeal seems to have been directed to be heard in this department. Upon the facts thus stated and admitted by the demurrer, it seems clearly apparent that the. surrogate committed a palpable error by his decision to disregard the releases; and the questirn is, whether a court of equity will step in by injunction against the defendants to prevent them from availing themselves of the erroneous decision of the surrogate, and entering a decree in conformity thereto.

.We are of opinion that the Special Term erred in holding that the injunction of a court of equity is a proper remedy in such a case. The surrogate undoubtedly had authority to pass upon the question of the admissibility of the evidence offered, and to reject or receive it, according to his views of the law and justice of the case. The proper method of reviewing his erroneous ruling is provided by statute, and that is by an appeal, which brings up the decision and all its grounds and reasons, and all the facts and proofs upon which it was based, before an appellate court.

That is a plain, simple remedy, open to all parties who are prejudiced by the decisions of the Surrogate’s Court; and no court of equity has ever gone so far as to prevent the further prosecution of an action, or of any proceeding pending in an inferior or other tribunal on the ground that the decision of the court in rejecting or disregarding the evidence presented to it for consideration was likely to work irreparable injury to the party against whom such decision was made.

To establish such a principle is to do what was severely com demned by Bronson, J., in Vilas v. Jones (1 N. Y., 283), for it is to resort to a bill in equity to correct an erroneous decision at law where a plain remedy by appeal exists. A similar question seems to have been before the General Term of the second department in this, or some other action between the sanie' parties on an appeal from an order granting an injunction. (7 Hun, 608.) In that case the court reversed the order, holding that where there is an adequate remedy by motion or appeal, there is no occasion fordhe interference of a court of equity.

In The New York and Harlem Railroad Company v. Haws (56 N. Y., 175-181), the court held that equity will not interpose upon the ground that a verdict or judgment is erroneous. The error must be corrected, if at all, in the action in which it occurred; and, in his opinion, Grover, J., says: “ Equity does not interfere to restrain the collection of a judgment upon the ground that it was erroneously rendered, but only upon the ground that enforcing it would be contrary to equity and good conscience, as shown by facts of which tbe party could not avail himself as a defense, or when be was prevented from so doing without any fault of bis own, by tbe fraud of tbe other party.” It is to be observed that tbe complaint in this ease does not seek to bring into this court the question of tbe validity of tbe releases or any other question relating to them, but simply in consequence of tbe erroneous decision of tbe siu’rogate in rejecting them, to suspend all proceedings before tbe surrogate until that decision shall be changed by him and tbe releases accepted as sufficient discharges of .the rights and claims of tbe parties who executed them. Tbe suggestion of tbe fact that tbe surrogate refused to make a separate order on tbe question of receiving tbe releases, does not seem to us to be of any value; because, if be were bound to make such an order, bis refusal itself would be an appealable order, tbe error of which could be corrected by appeal.

We are unable to see any sound distinction between this case and any other, where a court sitting for tbe trial of issues of fact, has excluded evidence which, if admitted, and full effect given to its apparent force, would determine tbe issue in favor of one of tbe parties. We think it clear that, in such case, it is not tbe province of a court of equity to thrust in its injunction, and prevent a successful party from going on with tbe case until tbe decision of exclusion shall be changed and tbe evidence received.

For these reasons we are of opinion that tbe court below erred in overruling tbe demurrer.

' The order should be reversed with costs, and judgment ordered for tbe defendants on demurrer.

Daniels, J., concurred.

Present — Davis, P. J., Beady and Daniels, JJ.

Order reversed with costs, and judgment ordered for defendants on demurrer.