author: Learned, P. J. Mayham, J. (dissenting)

text:
    George W. Preston, Resp’t, v. Samuel R. Hawley, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Landlord and tenant—Use and occupation of premises.
    Defendant sold certain premises to plaintiff, but requested permission to leave certain goods thereon until they were disposed of, which was granted, no time or compensation being specified. Defendant employed a watchman to watch the goods, but was not shown to have otherwise been in possession of the premises. In reply to a demand for rent, he said that “if I had known you were going to charge so much, I would have moved the goods to a cheaper place.” Held, that while defendant may have been liable for storage, the evidence was not sufficient to show that he was in possession, so as to render him liable for use and occupation.
    (Mayham, J., dissents.)
    Appeal from a judgment entered upon the verdict of a jury at the Hlster circuit The action was prosecuted for use and occupation of a factory, building and machinery and fixtures in the sama The complaint alleges the existence of the conventional relation of landlord and tenant between the parties. The answer is a denial.

      George Wilcox, for app’lt: Preston & Chipp (Howard Chipp, Jr., of counsel), for resp’t.
   Learned, P. J.

—The simple question is, whether there was evidence to justify the jury in finding that defendant was a tenant of plaintiff.

Plaintiff owned the property, and he agreed to permit defendant to leave upon the property certain personal property, for no specified time and for no specified compensation. If, under the agreement, defendant was entitled to have, and did have, possession of the real estate, he was a tenant If defendant was not entitled to have, and did not have, possession of the real estate, then he was not a tenant. In that case he was only storing his goods in a building of which plaintiff was owner and in possession. The latter is defendant’s position, as he claims, shown when he said to plaintiff, “ If I had known you were going to charge so much, I would have moved the goods to a cheaper place.”

The plaintiff’s testimony as to the conversation had between the parties at the beginning of the arrangement is: “ He said he wanted permission to leave the goods in the factory until they were disposed of. * * * That was the substance of the conversation.” The defendant states the conversation in the same manner. The goods did remain there for some time. The defendant states that, after this conversation, the goods were in charge of a watchman; that he employed a man to watch those goods in that factory.

The learned justice in charging the jury said correctly that there could be no recovery in this action unless there was an agreement of letting by plaintiff to defendant And there seems to be no disagreement on this principle of law under the complaint in this action.

We are unable to see that the evidence justifies a finding that there was such agreement. All that was said at any time is consistent with the idea of storing the defendant's goods in plaintiff’s building. The plaintiff in some letter demands rent, but that demand is not acceded to, and therefore amounts to nothing. But there is nothing in any of the conversations proved which supports the claim that the defendant was in possession of the property., One single fact should be noted. The defendant says that he employed a watchman to watch the goods. But that is not sufficient to show that defendant was in possession of the premises.

These goods were about in various parts of the building, and they were in various states of manufacture. It was quite natural that defendant desired to leave them in the building until some final disposition. And it may be quite proper that he should pay for this privilege of storing them in plaintiff’s building. But the action is for rent and occupation, and plaintiff to recover must show that defendant had possession of the building. We think that there was not evidence justifying that finding.

Judgment reversed, new trial granted, costs to abide event

Land on, J., concurs.

Mayham, J. (dissenting)

—On the 7th of June, 1888, the defendant, as assignee under a general assignment for the benefit of creditors, sold to the plaintiff and conveyed to him by deed the premises for the use and occupation of which this action was brought. At the time of such conveyance the defendant, as assignee, had in said mill a quantity of unfinished goods in process of manufacture. The jury were authorized from the evidence to find that at the time of the sale, and immediately after the same was completed, the defendant asked plaintiff if the goods could remain in the mill until they were disposed of in some way or manufactured in this factory, and the plaintiff told him that he could, and that thereafter the defendant’s goods remained in plaintiff’s mill from that time until the 23d of August, then next, in the care of the defendant and his agents and employes. The further evidence relied upon by the plaintiff to prove that the conventional arrangement of landlord and tenant existed between the parties was the defendant’s letter in answer to a letter written by plaintiff demanding rent, in which it is claimed that he tacitly admitted the relation of landlord and tenant by not denying that he held as tenant, but objected only to the amount of rent claimed by the plaintiff.

The evidence discloses that in a conversation between the plaintiff and defendant the latter admitted his indebtedness for the use of these premises in these words: “lam free to admit right here that I expected to pay you something, but that the amount you charge is too much. If I had known you would ask so much I would have moved the goods to a cheaper place.”

The evidence we have referred to, or quoted above, constitutes the substance of .all of the evidence in the case relied upon by the plaintiff to establish the relation of landlord and tenant This evidence is, in some respects, contradicted by the defendant, but the dispute as to which was correct was a question of fact; and in determining whether, as a matter of law, there was proof to establish the conventional relation of landlord and tenant, we may take the evidence offered by the plaintiff and see whether that by a fair construction can be held to establish the relation of landlord and tenant. It is well settled that the continuing of the grantor in the possession of the premises sold after conveyance does not alone, without some arrangement or agreement between the grantor and the purchaser, create the relation of landlord and tenant. Preston v. Hawley, 101 N. Y., 586; Thompson v. Bower, 60 Barb., 477. But it is not necessary to show that this relation was created by written lease or express agreement; there must be proof of circumstances authorizing the inference that the parties intended to assume that relation towards each other. Is the proof of circumstances here sufficient to meet the requirement of this rule. If the evidence, as it now appears, was before the court of appeals when this case was considered in that court, we should have no hesitancy in following the somewhat vigorous and emphatical language of that court in disposing of that question. But we have not the record of this case as it was then presented, and we are assured by the appellant’s counsel in his brief that the evidence of the interview between the plaintiff and defendant at the time of the sale, as proved in this case, was not before the court on the former appeal; and on a careful perusal of the opinion of the court of appeals we find no reference to that interview in that opinion as the same is now in proof We are, therefore, called upon to examine that interview, in connection with the other facts proved, to see whether the case is, in its legal aspects, changed on this trial from what was before the court on the former trial and appeals.

The interview at the sale is narrated by the witness as follows: He (defendant) said he wanted permission to leave the goods in the factory until they were disposed of He said he sold the factory for the purpose of a new concern starting in. He wanted the goods to stay there until the new concern took it or disposed in some way, or manufactured the goods up in this factory. That was the substance of the conversation; there was nothing said about compensation.

“ Q. That was left open ? A. It was; he wanted the goods to stay there until some disposition was made of them; there was quite a large quantity of goods there in all stages; the goods consisted of materials for the manufacture of hats in various processes of construction, distributed around various parts of the building.

“ Q. In all parts of the building? A. Yes, sir; I was down there after the sale once or twice; the goods were there.”

We have quoted this evidence at length to show in what respects the plaintiff claims the evidence is changed. In this evidence there is a request to allow the vendor to retain the occupancy of this building, in so far as it was necessary, until the goods, which were in all parts of the building, were disposed of. This was assented to by the plaintiff, and the defendant, in this way, occupied the premises until the succeeding August, about two and one-half months. During that time the goods confessedly remained in the possession of the defendant, who kept them insured in his own name, and the plaintiff assumed no duty or obligation in reference to them; nor does it appear in the case that the plaintiff had any actual possession of the mill. It was occupied by defendant, or at least his goods by his request, and for which occupancy he, as appears by his own statement, expected to pay.

Under these circumstances, we are of the opinion that the learned judge was right in submitting it to the jury to determine whether the minds of the parties met upon this question of leasing these premises, so that the plaintiff, at the time, understood that he was letting these premises to the defendant, and upon the part of the defendant he understood that he was hiring them from the plaintiff, and was to pay for them; and if they reach that conclusion from the evidence, then the relation of landlord and tenant was established, and their verdict upon that branch of the case should be for the plaintiff.

“ The relation of landlord and tenant exists whenever a person in possession of lands or tenements occupies them in subordination to the title of another, and with his assent express or implied.” McAdam Landlord and Tenant, § 30. “ Whenever there is ownership of land on the one hand and an occupation of it by permission on the other, it will be presumed that the occupant intends to compensate the owner for the use of the premises.” Bouvier Diet., title Landlord and Tenant. With the verdict of the jury finding the facts with the plaintiff, we see no element wanting in this case to establish the relation of landlord and tenant

The plaintiff makes a point that the question put to plaintiff as to the real value of these premises was erroneous, as it embraced the rental value for storage purposes; but as the rental value was in issue under the pleadings, its rental value for any purpose for which it was adapted would seem to be proper. Nor do we see that it was error to prove by plaintiff that he did not occupy this property during the occupancy of the same by defendant's goods; that evidence bore in a greater or less degree upon the understanding of the parties as to the character of the letting.

The defendant also insists that it was error to refuse to strike out the evidence of the admission of the defendant that he owed plaintiff something. This was a statement of a fact as to an existing indebtedness, and it does not appear, either from the evidence or the objection or motion to strike out, that the statement was privileged on the ground that it was an offer to compromise. A statement of fact which tends to establish a cause of action or defense is not rendered inadmissible because it was made in a discussion relating to compromise. 102 N. Y., 660; 1 N. Y. State Rep., 369; Brice v. Bauer, 108 N. Y., 428; 13 N. Y. State Rep., 765. Within the rule as settled in this state, we do not see that the admission and the retention of this evidence was error. There was no error committed by the learned judge in his charge, or in the refusal to dismiss the complaint, or to set aside the verdict, for which a new trial should be granted. Judgment affirmed, with costs.

Judgment reversed and new trial granted, costs to abide event


source: Caselaw Access Project

author: Learned, P. J. Mayham, J. Landon, J. (dissenting).

license: Public Domain

text:
    The People, Pl’ffs, v. The New York, Chicago & St. Louis R. R. Co., Def't.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Corporations—Consolidation—Organization tax.
    A corporation formed by the consolidation of two or more corporations, although some of them may be foreign corporations, is a new corporation, incorporated under the laws of this state, and liable for the organization tax on its capital stock imposed by chap. 148, Laws 1886.
    (Landón, J., dissents.)
    Submission of controversy under § 1279, Code Civ. Pro., in order to determine the liability of the defendant corporation to pay the organization tax under chap. 143, Laws 1886.

      Rogers, Locke & Milburn (Samuel E. Williamson, of counsel), for def’t; Charles F. Tabor (I. H. Maynard, of counsel), for pl’ffs.
   Learned, P. J.

—On June 22, 1887, a railroad corporation was formed under the General Railroad act of this state, called the New York, Chicago & St Louis Railroad Company, with a capital of $4,500,000; which, to distinguish it from other corporations of the same name, will be called No. 3. It paid its organization tax.

On August 15, 1887, said New York, Chicago & St. Louis Railroad Company, No. 3, entered into a consolidation agreement, under the statutes of New York, with the Erie & State Line Railroad Company, a corporation under the laws of Pennsylvania, by which the two corporations were consolidated into one corporation, known as the New York, Chicago & St Louis Railroad Company, which, to distinguish it, will be called No. 2. The capital stock of No. 2 was $7,500,000, being a sum equal to the aggregate of the capital stock of the two consolidating companies.

The agreement of consolidation was duly filed that day in the office of the secretary of state of New York.

No organization tax was paid to the statu

On September 27, 1887, the N. Y., C. & St L. R. R. Co. No. 2 and the Cleveland & State Line Company, a corporation under the laws of Ohio, and the Port Wayne & Illinois Railroad Company, a corporation under the laws of the state of Indiana, under and in pursuance of the statutes of New York, entered into a consolidation agreement by which they were consolidated into a new corporation by the name of the New York, Chicago & St Louis Railroad Company ; which, to distinguish it, will be called No. 1.

The capital stock of No. 1 was $30,000,000, a sum equal to the aggregate of the capital stock of the three consolidating companies.'

No organization tax was paid to the state of New York. The agreement of consolidation was duly filed with the secretary of the state of New York.

The defendant in this case, which is the corporation above mentioned formed by the consolidation last named and distinguished as No. 1, is exercising in this state corporate powers and exercising or assuming to exercise the corporate franchise of maintaining and operating a railroad from the city of Buffalo in New York to a point on the boundary line between Indiana and Illinois.

The plaintiff claims that there was due and payable to the treasurer of the state of New York from the New York, Chicago & St. Louis Railroad Company No. 2, $9,375, being one-eighth of one per cent on its capital, which is still due with interest from August 15, 1887, which sum this defendant is liable to pay by virtue of the agreement of consolidation.

The plaintiff claims that there was due and payable to the treasurer of the state from the defendant the sum of $37,500, being one-eighth of one per cent on the capital stock, which is still due ■ with interest from September 27, 1887.

The question arises under the corporation tax law, chapter 143, Laws 1886, and it is presented to this court by a case submitted.

Section 1 of that law is as follows: “ Every corporation, joint stock company or association incorporated by or under any general or special law of this state, having capital stock divided into shares, shall pay to the state treasurer for the use of the state a tax of one-eighth of one per centum upon the amount of the capital stock which said corporation, joint stock company or association is authorized to have.”

“And the secretary of state and any county clerk shall not file any certificate of incorporation * * * until he is satisfied that such tax has been paid to the state treasurer.”

There is no question that the defendant has capital stock divided into shares.

The inquiry must be whether the defendant, when it filed its consolidation papers September 27, 1887, became a corporation incorporated under a general law of this state.

To determine this we must first look at the railroad consolidation act, chapter 917, Laws 1869, as amended by chapter 685, Laws 1881. Section 1 authorizes any railroad company “ organized” under the laws of this state or of this state and any other state “ to merge and consolidate its capital stock, franchise and property with the capital stock, franchise and property of any other railroad company or companies organized under the laws of this state, or under the laws of this state and any other state, or under the laws of any other state or states.”

Section 2 provides the mode and speaks of the name of the new corporation “ and of the conversion of the stock into that of the new. corporation. ” It declares that a copy of the agreement of consolidation duly certified shall be evidence of the existence of the new corporation. Section 3 declares that on the making, perfecting and filing the agreement, the corporations parties thereto “shall be deemed and taken to be one corporation.”

Section 4 provides that all rights and property shall be vested in the new corporation without further act or deed.

Section 5 preserves all debts and makes the new corporation liable therefor. Polhemus v. Fitchburg R. R. Co., 123 N. Y., 502; 34 N. Y. State Rep., 420, and 50 Hun, 397 ; 21 N. Y. State Rep., 117 ; reversing Janes v. Fitchburg R. R. Co., 50 Hun, 310; 20 N. Y. State Rep., 168.

The section declares “ that the respective corporations shall be deemed to continue in existence to preserve “ the rights of all creditors.” This clause should be noticed, inasmuch as it tends to explain and harmonize with the general scope of the acts certain decisions of the United States supreme court hereafter to be mentioned. And it shows that, by the intent of the legislature, the formation of one new corporation out of two already existing is not inconsistent with a continuance, to a certain extent, of the constituent corporations.

That suit may be brought against the new corporation is provided in this section. And the very submission in this case shows that the new corporation is an artificial person, for it declares itself to be a “ domestic railroad corporation.”

Section 6 provides for the taxation of the real property of such new corporation wherever situated, and for the taxation of its stock and personal property.

It is, therefore, most positively declared by the legislature that such consolidation does create a new corporation. In accordance with this, the agreement of consolidation between the constituents repeatedly declares that they form one corporation, and states when such consolidated corporation shall go into operation. It is clear, then, that prior to the time of executing and filing this agreement there was no such corporation as the present defendant There was another corporation which had the same name, and which we have designated as Ho. 2. But the defendant Ho. 1 did not exist before that time and does exist now. Hence, it necessarily follows that the defendant is a new corporation with new duties and new powers. And as it obtained its existence by the authority of this Hew York consolidating statute, it was evidently incorporated under a general law of this state, and, therefore, it must come under the provisions of the statute imposing an organization tax. This is the plainer seen by the clause of that statute which- forbids the filing of the papers by the secretary of state until the tax is.paid. The defendant desired the filing of its papers, and, as a condition of such filing it is required to pay a certain tax. Plainly the state is at liberty to impose such terms as it pleases upon the filing of papers in the office of its secretary. This doctrine is distinctly laid down in People ex rel. Schurz v. Cook, 110 N. Y., 443; 18 N. Y. State Rep., 100; affirming 47 Hun, 467; 14 N. Y. State Rep., 276.

That the effect of such a consolidation" is to form a new corporation, is shown in McMahan v. Morrison, 16 Ind., 172; R. R. Co. v. Maine, 96 U. S., 499; Shields v. Ohio, 95 id., 319, and Clearwater v. Meredith, 68 id., 25. The same view is taken in People ex rel. Phonograph Co. v. Rice, 57 Hun, 486; 33 N. Y. State Rep., 34; affirmed court of appeals, 38 N.Y. State Rep., 1011, where it was distinctly held that by the consolidation a new corporation was formed, and further, that such new corporation was bound to pay the corporation tax now in question.

The question is, therefore, settled, unless a distinction can be made from the fact that two of the constituent corporations were foreign corporations.

It might be said in the outset, that if the foreign corporation chooses to come into this state and take advantage of a statute of this state permitting it to do a certain act, it must do this on the conditions imposed One of those conditions is that if two corporations do avail themselves of this consolidating statute, they must pay the organization tax. This was decided in the Phonograph case, ut supra.

It might be said that the foreign corporation has made an agreement under our statute, purporting to form with the domestic corporations a new corporation. And that whether that old foreign corporation still has some existence in another state, at any rate the new corporation must pay the organization tax. And we might further remark that the consolidation act itself preserves a certain existence of the constituent corporations so far as their creditors are concerned. Yet such existence of the constituent corporations in no way affects the liability of the new corporation to pay the organization tax, as was seen in the Phonograph case. In that case, notwithstanding the statute preserved, to a certain extent, the existence of the two domestic constituent corporations, yet the new corporation was held liable to pay the tax. Therefore, whatever might be held in regard to the existence in another state of one of the constituent corporations in this case, still the new corporation must pay for the privilege which it has undoubtedly obtained of being a corporation here. If this state chooses to enact that on payment of an organization tax a foreign corporation and a domestic corporation may unite into a domestic corporation here, it cannot matter what may be the rights of that foreign corporation in the state where it was formed. If it accepts the privilege allowed it here, it must pay the tax, on payment of which alone the privilege is granted.

But it is urged by the defendant that certain decisions of the United States supreme court are fatal to plaintiffs’ claim. The case of Nashua & Lowell R. R. Cor. v. Boston & Lowell R. R. Cor., 136 U. S., 356, is cited. In that case, the Nashua & Lowell R. R. Cor. was incorporated in New Hampshire in 1835 by a special act. The Nashua & Lowell R R Corporation was incorporated by Massachusetts in 1836 by a special act.

In 1838 the state of Massachusetts passed a special act declaring that the stockholders of the New Hampshire corporation were thereby constituted stockholders of the Massachusetts corporation, and that the two corporations were thereby united into one.

In the same year the state of New Hampshire passed a special act declaring that the two corporations, viz., the Massachusetts and the Hew Hampshire, were authorized to unite the said corporations, and that the property owned by either should be taken to be the joint property of the stockholders of the two corporations.

Subsequently, in 1857, this corporation entered into a contract with the Boston & Lowell Railroad Company, that their roads ■should be worked and managed as one road, to be operated and managed by one agent, to be chosen by the votes of the directors ■of each road.

The plaintiff was the Hew Hampshire corporation, or as called in the opinion, the Hashua corporation. It alleged that it was ■duly established as a corporation under the laws of Hew Hampshire. It brought this action in equity in the circuit court of the United States for the district of Massachusetts. A plea in abatement was filed alleging that plaintiff was a citizen of Massachusetts. The plea was overruled. The same matter was set up in the answers. Replications were filed denying in effect the allegations respecting the acceptance of the acts having for their object the union of the two corporations, and the allegations of such acceptance were entirely unsupported by the evidence or by anything on the record. A majority of the court held that the circuit court had jurisdiction. And the court remarked that, however closely two corporations of different states may unite their interest, their separate identity is not lost How, we have carefully stated the facts of that case that no incorrect conclusions may be drawn from any remarks in the decision. Several things will be seen. First, that the two corporations (bearing the same name) were not shown to have accepted the acts of Massachusetts and of Hew Hampshire; second, that the act of Hew Hampshire does not purport to consolidate the two into one, but speaks of them still as two corporations; third, that the act of Massachusetts is to have no effect until the stockholders accept, both of the acts. The statutes, therefore, in that case are entirely different from the consolidating statute in this state; and no evidence was given that the stockholders had accepted these acts of the two legislatures.

The present case is not one where two corporations merely unite their interests and have the same directors. Here there is the creation of a new corporation, as was decided in the cases above cited.

And this distinction is very clearly pointed out in Penn. Co. v. St. Louis, Alton, etc., R. R. Co., 118 U. S., 290, where the head note is: “ AYhen an existing railroad corporation organized under the laws of one state is authorized by the laws of another state to extend its roads into the latter, it does not become a citizen of the latter state by exercising this authority; unless the statute giving this permission must necessarily he construed as creating a new corporation of the state which grants the permission.” And in the language of the court: “ To make such a company a corporation of another state the language used must imply creation or adoption in such form as to confer the power usually exercised over corporations by the state or legislature.” “ It does not thereby become such new corporation of another state until it does some act which signifies its acceptance of this legislation and its purpose to be governed by it." If the case of the Nashua & Lowell R. R. Co., ut supra, was intended to overrule these views it is probable that something of that nature would have been said in the opinion.

Language could hardly be used more applicable to the present controversy. In the present case the words of the consolidating act distinctly express the creation of a new corporation. And the two constituent corporations have expressly accepted the legislation and claimed its benefits.

It is true that in Railway v. Whitton, 80 U. S., 270, where the Chicago & N. Y. R. R. Co. was incorporated in the state of Wisconsin and also in the state of Illinois, and the plaintiff, a citizen of Illinois, brought an action in the state court of Wisconsin against that company for an injury done in that state and subsequently removed the action to the United States circuit court for Wisconsin, it wras held that the removal was proper. The court said that in Wisconsin the defendant incorporated there was not a corporation or a citizen of any other state. Nor need we hold (because that question is not before us), that in the state of Illinois the Fort Wayne & Illinois Eailroad Company may not still be sued in the Federal courts by a person not a citizen of that state.

A natural person, citizen of Illinois, may join with others and may form a corporation under the laws of New York, but he will still be a citizen of Illinois. So even if it were held by the federal courts, for the purpose of their jurisdiction, that that railroad was a citizen of that state, it would not follow that a corporation had not been formed in the state of New York. That is a question with which we have nothing to do. All that we have to decide is whether in this state a new corporation was formed, and if so, what are the terms on which it was allowed the privilege of such new incorporation. And it will be observed that the cases principally relied upon by the defendant arose on the question of jurisdiction of the federal courts, that is, on the question as to the state of which the corporation sued or suing was a so-called citizen.

In Ohio & Miss. R. R. v. Wheeler, 66 U. S., 286, is shown the growth of the doctrine, at first questioned, that a corporation is, so far as the jurisdiction of the federal courts is concerned, a citizen of the state where it is incorporated; and that doctrine is-placed on the ground that the legal presumption is that its members are citizens of that state. Of course it is well known that such presumption is not true in fact Just as it is well known that a corporation is itself an imaginary existence, a legal fiction, which can have no real citizenship. The right to be a corporation is really only' the right of several natural persons to act as one, so that the acts done through agents shall not be: the acts of these several persons but of the imaginary body composed of them. This right is conferred by the state. And there seems to be no reason in principle why two states should not confer the same right upon the same body of natural persons, and why in such case the same corporation should not exist under the laws of two states. And it might present an interesting question for the federal courts, if the same persons were incorporated at the same time into an apparently identical corporation in each of two states, in which of those states it would be a citizen ? We have not overlooked the language of the court in the case last cited, where, for instance, it is said: “ The legal entity or person which exists by force of law can have no existence beyond the limits of the state or soveregnty which brings it into life." Yet certainly corporations do act, and perform very important acts, in states in which they were not incorporated. But, however that may be, the question which arose in that case was on the jurisdiction of the federal courts; and the court said that the suit in the corporate name was in contemplation of law the suit of the individuals who composed it That is not so in any respect, except it be on the question of federal jurisdiction. This present submission, for instance, is not the submission of the individuals who compose the defendant But this matter is not important here. The question here is whether this defendant is a corporation incorporated under a law of this state.

That the doctrine of cases above cited, that consolidation forms a new corporation, is not confined to the consolidation of two corporations, incorporated by the same state, is evident from the case of Delaware R. R. Tax, 85 U. S., 206. There the Delaware & Maryland R. R. Co., incorporated under the laws of Maryland, and the Wilmington & Susquehanna R. R. Co., incorporated under the laws of Delaware, were by subsequent acts of those states consolidated, and a tax was imposed on the new corporation. Again in Philadelphia & Wilmington Railroad v. Maryland, 51 U. S., 376, there was a consolidation of corporations of different states, and the court at page 392 speaks of these •companies as being thereby incorporated into one, which one was the plaintiff in error. Of course, as it was a plaintiff, it must have had the right to sue and be sued; which shows that the consol idated-co mpany was itself a corporation.

It is contended by the defendant that it is absurd that the capital stock of this defendant should be $30,000,000. But we have only to turn to the agreement of the consolidating companies, the fourth article of which says that the capital stock of said consolidated company shall be that amount; and the sixth article of which provides for the issue thereof. And it will be seen by that sixth article that, on carrying the agreement into effect, there will be no longer any capital stock of any company other than that of the present defendant, the ¡New York, Chicago & St Louis R. R. ¡No. 1, which, by the seventh article, owns all the property of the constituent companies. The defendant’s counsel ask by what necromancy has its capital stock been increased from four and one-half million to thirty million. But there has been no increase of the capital of any company. The present defendant is not the same corporation with the ¡New York, Chicago & St Louis R. R. ¡No. 2, though it has the same name.

Some argument is made by defendant based on the assertion that these constituent corporations have also incorporated themselves into one corporation under the laws of other states, viz., Ohio, Pennsylvania and Indiana. The agreement for the consolidation in this state expresses an intention so to do. But we fail to find anything in the submission which shows that this has been done. We do not therefore know what is the fact. And it is not for us to determine what rights and liabilities may arise in other states, if consolidation has there taken place. The defendant must take the position that it is not a corporation; because by the fifth, sixth and seventh clauses of the submission the defendant is identified and is distinguished from the previous corporations of that same name. Therefore the defendant is not the corporation called No. 3, and is not that called No. 2. What is the defendant then? Who has made this submission? It purports to be executed by a corporation under its seal and by the hand of its president If defendant is not a corporation, then there is no party to the submission on one side, and the submission should be dismissed.

In the view we have taken this defendant is liable to pay the organization tax arising on the agreement of September 27, 1887. Under the Polhemus case, above cited, it is liable for the tax which the constituent company, No. 2, should have paid on the agree- ■ ment of August 15, 1887. And it is liable for interest on these amounts.

Judgment for plaintiff should be entered accordingly as prayed for in the submission.

Mayham, J.

—The concurrence of three things in the defendant’s organization is essential to make the defendant liable for the tax.

1st It must be a corporation organized under a general or special law of this state.

2d. It must have capital stock divided into shares.

3d. It must carry on its operations wholly or partly within this state.

If the defendant by its organization embraces all the above requisites, then it comes within the provisions of chap. 143 of the Laws of 1886, as amended by chap. 284 of the Laws of 1887, which provides that:

Any corporation * * * incorporated by and under any general or special law of this state, having capital stock divided into shares, shall pay a tax of one-eighth of one per cent on its capital stock into the treasury of the state.

The defendant is a corporation incorporated under'the laws of this state pursuant to the provisions of chap. 917 of the Laws of 1869, as amended by chap. 685 of Laws of 1881, by making, perfecting, filing agreements of consolidation in the office of the secretary of state as provided by § 3 of the act of 1869, which declares that by the performance of those acts it “ shall be deemed a corporation; and by § 4 of that act such consolidation company is called the new corporation.

It seems conceded that the aggregate stock of the old corporation becomes the stock of such new corporation; it therefore has stock divided into shares.

It is doing some of its business in this state, and is thus brought within that provision of the statute.

It is true that some of its constituent parts are the corporations of other states organized under their laws. But if they by a verbal agreement attach themselves to a corporation in this state and accept of a franchise under its laws, and thus by their charter become a corporation under the laws of the state of New York, there seems to be no reason why they should avail themselves of that privilege without being subject to the conditions under which the grant of that franchise is made. It is doubtless true that the original corporations by the act of consolidation do not thereby absolve their allegiance or obligations to their own state or the state by which they were chartered, but in so far as they constitute by their consolidation a part of the new corporation under the charter which they have voluntarily assumed in this state, they become a new corporation organized under the laws of this state, and, as such new organization, must pay the franchise tax imposed as this condition of their charter.

Landon, J. (dissenting).

—The original New York, Chicago & St. Louis Eailroad Company, organized in June, 1887, under the general railroad laws of this state, had a capital stock of four and one-half millions of dollars. Its line of railroad was wholly within this state, extending from Buffalo to the state line between New York and Pennsylvania. Upon its organization it paid the tax of one-eighth of one per centum upon its capital stock, as required by chap. 143, Laws 1886. That tax is imposed by said act upon every corporation having capital stock divided into shares, “ incorporated by and under any general or special law of this state.” In August, 1877, this New York corporation, pursuant to the provisions of chap. 917, Laws 1869, consolidated with a Pennsylvania railroad corporation having a line of railroad extending across the state of Pennsylvania from its New York to its Ohio boundary, and forming a continuous line of railroad with that of the New York company.

The Pennsylvania company had a capital stock of $3,000,000, and the capital of the consolidated company was declared to be $7,500,000.

No franchise tax was paid upon the capital stock of the consolidated company. This company assumed the name of the New York, Chicago & St. Louis Eailroad Company.

In September, 1887, the New York, Chicago & St Louis Eailroad Company, as thus enlarged, pursuant to the provisions of said act of 1869, consolidated with both an Ohio railroad company and an Indiana railroad company, one owning a line of railroad across the state of Ohio, and the other across the state of Indiana, which formed with the New York and Pennsylvania lines a continuous line of railroad from Buffalo to the state boundary line between Indiana and Illinois. This consolidated company assumed the name of the New York, Chicago & St. Louis Eailroad Company, and declared its capital stock to be $30,000,000, which amount was the aggregate of the capital stock of ah the constituent companies. No franchise tax was paid upon the capital stock of this consolidated company.

The plaintiff demands judgment in this action for the amount of the tax at the rate of one-eighth of one per centum upon $7,500,000, the capital stock upon the first consolidation, and at the like rate upon $30,000,000, the amount of the capital stock upon the last consolidation.

The contention of the defendant is that upon neither consolidation was any company “incorporated by or under any general or special law of this state ” within the meaning of chap. 143, Laws 1886.

It was undoubtedly the purpose of the act of 1869 to form new corporations by the consolidation of constituent companies in the cases Specified in the act, merging the old companies into the new, except so far as the act preserves the old companies .in existence in order to uphold the rights of creditors.

Chapter 917, Laws 1869, as amended by chapter 685, Laws 1881, provides: “ Sec. 1. It shall and may be lawful for any railroad company or corporation, organized under the laws of this state, or of this state and any other state, and operating a railroad dr bridge, either wholly within, or partly within and partly without this state, to merge and consolidate its capital stock, franchises and property with the capital stock, franchises and property 'of any other railroad company or companies organized under the laws of this state, or under thelaws of this state and any other state, or under the laws of any other state or states, whenever the railroads or branches, or any part of the railroad or branches of the companies or corporations so to be consolidated, shall or may form a continuous or connected line of railroad with each other, or by means of any intervening railroad bridge or ferry.”

The second section of the act prescribes the methods to be pursued to effect such consolidation and merger and characterizes the result as a “new corporation.”

The third section provides that the constituent corporations when so merged and consolidated, “ shall be deemed and taken to be one corporation; ” and the fourth section declares that “ all and singular the rights, privileges, exemptions and franchises of each of said corporations, parties to the same, and all the property, real, personal and mixed, and all the debts due on whatever account to either of said corporations, as well as all stock subscriptions and other things in action belonging to either of said corporations shall be taken and deemed to be transferred to and vested in such new corporation."

The fifth section makes the “ new corporation ” liable for the debts of the old, except mortgages, but the old corporations " shall be deemed to continue in existence to preserve the rights of creditors.”

The sixth section limits the taxation upon the property of the new corporation to such of its real estate as is situate within this state, and to such proportion of its capital stock and personal property as the number of miles of the whole line of road bears to the number within this state.

We held in People ex rel. Phonograph Co. v. Rice, 57 Hun, 486; 33 N. Y. State Rep., 34, that a corporation formed under chapter 960, Laws 1867, by the consolidation of two domestic manufacturing corporations, each of which upon its separate organization had paid the organization tax, was required upon such consolidation to pay the tax under chap. 143, Laws 1886 ; that a new corporation had been formed, and the constituent corporations had ceased to exist. But both constituent companies were domestic corporations, and jurisdiction over both was wholly in this state. The cases there cited of Shields v. Ohio, 95 U. S., 319 ; Railroad Co. v. Maine, 96 id., 499; and Railroad Co. v. Georgia, 98 id., 359, were cases of the consolidation of domestic corporations.

Such, also, was the character of the constituent companies in Clearwater v. Meredith, 1 Wall., 25, and McMahans v. Morrison, 16 Ind., 172. But it is also clear from the authorities that when a consolidation is effected of corporations of different states, under the enabling statutes of the respective states, no new corporation, as an entirety, is formed, but each constituent remains in severalty just as much the creature and creation of its parent state as it was before the consolidation.

The authorities upon this subject in the federal and state courts appear to be uniform in the declaration of this result. Nashua & Lowell Railroad v. B. & Lowell Railroad, 136 U. S., 356; Farnum v. Blackstone Canal Cor., 1 Sumner, 46; Muller v. Dows, 94 U. S., 444; St. Louis, Alton & Terre Haute Railroad Co. v. Indianapolis & St. Louis Railroad Co., 9 Bissell, 144; The Penn. Railroad Co. v. St. Louis, etc., Railroad Co., 118 U. S., 290; Racine, etc., Railroad Co. v. Farmers' Loan & Trust Co., 49 Ill., 331; Ohio & Miss. Railroad v. Wheeler, 1 Black, U. S., 286 ; Quincy Railroad Bridge Co. v. Adams Co., 88 Ill, 615; Chicago & N. W. R. R. v. Auditor General, 53 Mich., 91; O. &. M. R. Co. v. People, 123 Ill., 467; State Treasurer v. Auditor-General, 46 Mich., 224. We are not cited to any authority holding otherwise.

The conclusion seems to result from well established principles. Every corporation is the creation of its own state and cannot exist outside of it It may, by the comity of other states, transact business or acquire property within them, but the ^entity or being which is created by law cannot transport its body beyond the state whose law gives it existence and sustains it Ohio & Mississippi Railroad Co v. Wheeler, supra; Plimpton v. Bigelow, 93 N. Y., 592.

Ho state can, by its legislation or otherwise, change the nature or character of a foreign corporation within the domicil of the latter. Two states have no power to unite in passing any legislative act; there can be no joint legislation in the sense that the two states, by uniting or concurring in legislative action, can achieve a single result which either, separately, could not do. Nashua Railroad v. Lowell Railroad and the cases supra. The state of Hew York may authorize its corporation to consolidate with a Pennsylvania corporation, so far as its business interests are concerned, but for it to declare that the union thereupon to result will be a new corporation formed of the two constituents, which shall no longer separately exist, is to attempt to change the nature and dissolve the existence of the Pennsylvania corporation and replace it with a new corporation. This would be for it to attempt to extend its powers further than they can reach and would, of course, be futile. Nor could it, by its legislation, bring the Pennsylvania corporation into the state of New York or project the New York corporation into Pennsylvania.

In the nature of things the concurring legislation of the two states only results in each state acting upon its own corporation and solely within its own territory, and hence there never can be one such power over both corporations as can pour or mingle them together and thus make a fused or merged new corporation existing as an entirety in both states. It may be that each constituent would as to third persons when justice required it be estopped to deny the creation of ■ the new corporation, but such an estoppel would not impose this tax. The new corporation to be taxable under the act of 1886 must have been organized under some act of this state, and if no act is competent to effect such an organization, the tax is not imposed. This state probably could authorize non-resident corporations to unite as corporators in forming a new corporation within this state, but that would be different from forming a new corporation by consolidation and merger. Consolidation and merger, and therefrom a new creation, imply power over each constituent in its own domicil. To enable each constituent to act in this state is only the exercise of domestic power.

In Nashua R. R. v. Lowell R. R., 136 U. S., 356, the Nashua Railroad Company was incorporated by the state of New Hampshire in 1835 to construct and operate a railroad in that state to its Massachusetts boundary. In 1836 the state of Massachusetts incorported another company by the same name to construct a continuation in Massachusetts of the New Hampshire railroad. In 1838 both New Hampshire and Masssachusetts passed acts to unite said corporations into one corporation. The Massachusetts act expressly made the stockholders of the New Hampshire company stockholders of the Massachusetts company, and the union contemplated by the Massachusetts act was the enlargement of its coiporation so as to merge the New Hampshire corporation into it. Thereupon a common stock was issued for the whole line, and one board of directors was provided which managed the entire line of railroad in both states for forty-five years. It was held that the identity of the New Hampshire corporation was neither destroyed nor merged with that of the Massachusetts corporation. The court said, p. 373: The new corporation created by Massachusetts, though bearing the same name, composed of the same stockholders, and designed to accomplish the same purposes, is not the same corporation with the one in New Hampshire. Identity of name, powers and purposes does not create an identity of origin or existence any more than any other statutes, alike in language, passed by different legislative bodies, can properly be said to owe their existence to both. To each statute and to the corporation created by it there can be but one legislative paternity.”

Again, page 382: “ Railroad corporations created by two or more states, though joined in their interests, in the operation of their roads, in the issue of their stock, and in the division of their profits so as practically to be a single corporation, do not lose their identity; that each one has its existence and its standing in the courts of the country only by virtue of the legislation of the state by which it is created. The union of name, of officers, of business, and of property, does not change their distinctive character as separate corporations.” The opinion reviews many of the cases above cited.

While it might be competent for the legislature of this state to impose the organization tax upon the capital stock of its own corporation upon its participation in a consolidating agreement with foreign corporations, such is not the effect of the act of 1886. The tax is imposed upon the capital stock of a corporation organized under some law of this state, not upon an agreement to merge what is not capable of merger, not upon an agreement to make a new corporation by methods-and constituents which no legislative power can make into a new corporation.

We conclude that judgment under the submission must be directed for the defendant, with costs.

Judgment ordered for plaintiff.


author: Landon, J. (dissenting).

text:
    The People, Pl’ffs, v. The Fitchburg R. R. Co., Def’t.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Sub Mission of controversy without action under § 1279, Code Civ. Pro.
    The question involved is the same as in the case of People v. N. Y., Chicago & St. Louis R. R. Co., ante. On March 27, 1887, the defendant corporation was formed by the consolidation of the Troy & Boston R R Co and The Fitchburg R R Co., the latter a foreign corporation organized under the laws of the state of Massachusetts. The articles of agreement were duly filed in the office of the secretary of state, but no tax was paid.
    Judgment ordered for plaintiffs as prayed for in the submission.

      Chas. F. Tabor (I. H. Maynard, of counsel), for pl’ffs; T. F. Hamilton ( G. A. Torrey, of counsel), for def’t.
   Landon, J. (dissenting).

—This is also a submission under | 1279, Code of Civil Procedure, in order to determine the liability of the defendant to pay the organization tax under chap. 143, Laws 1886, upon the consolidation under chap. 917, Laws 1869, in J une, 1887, of the Troy & Boston Railroad Company, a corporation organized under the laws of this state, with the Fitchburg Railroad Company, a corporation organized under the laws of the state of Massachusetts.

For the reasons stated in the case of the People v. The New York, Chicago & St. Louis R. R. Co., judgment upon the submission is directed for the defendant, with costs.


author: Learned, P. J.

text:
    The People ex rel. The Southern Cotton Oil Co. v. Edward Wemple, Comptroller.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Corporations—Foreign—Taxes.
    A foreign corporation which maintains a sales agency in the city of New York, sells the products of its mills in this state, refines its crude oil here, maintains a deposit of its products and keeps large sums on deposit in banks of this state for the carrying on of its business, does business in this state within the meaning of § 3 of chap. 542, Laws 1880, and is liable for the tax imposed thereby.
    2. Same—Constitutional law.
    Said act is not unconstitutional as interfering with inter-state commerce.
    3. Certiorari.
    Where several months have elapsed since the return to a writ of certiorari, the general term will not permit the introduction of affidavits contradicting its statements after the argument.
    Certiorari to review the proceedings of defendant as comptroller of the state of New York in making an assessment of taxes upon relator under the corporation tax laws of 1880 and 1881, and the acts amendatory thereof.

      Tracy, MacFarland, Ivins, Boardman & Ptatt (W. W. MacFarland, of counsel), for app’lt; Charles F. Tabor (I. H. Maynard, of counsel), for resp’t.
   Learned, P. J.

—In my own opinion this writ should be quashed for reasons which I will briefly state. The revision and readjustment of this tax was made by the comptroller September 2, 1890, and his order thereon was served that day on the relator. The petition for a certiorari was made December 29, and was presented to the court December- 30, and the writ was issued the 31st No papers or notice has been served on the comptroller, and nearly three months had elapsed since service of the order on the relator. Sections 19 and 20, added to the corporation tax law by chapter 463, Laws of 1889, now form a part of it, and the whole act, including § 17, is to be construed as one enactment

Section 17, added by chapter 361, Laws of 1881, is not repealed. It prescribed certain conditions only on which a writ of certiorari to review could be granted. No certiorari can now be granted to review the original adjustment and settlement of the tax'by the comptroller. People ex rel. Edison Electric Illum. Co., 11 N. Y. Supp., 246; 33 N. Y. State Rep., 29. But a certiorari may issue to review the readjustment and resettlement provided by § 19. Therefore the conditions imposed by § 17 on the issuing of a certiorari in proceedings under this tax law must now refer to the certiorari under § 19. There is no other certiorari to which they can refer, and as they have not been repealed, we have no right to disregard them. There is no reason why the legislature should not require the same conditions for a certiorari to review the resettlement which were required for a certiorari to review the original settlement. The' relator has had an opportunity to be heard before the comptroller, and to state its views. If it is still dissatisfied, it is proper that its certiorari should be taken with the same promptness, and on the same terms as would have been required when it sought to review a decision where it had not been heard.

If the legislature thought that those terms were too strict, they would easily have repealed or modified them at the time when they added §§ 19 and 20. But there was nothing in those sections which indicated an intention to repeal. It was desirable to specify in § 20 that a certiorari might be issued because § 1 of the original act had provided for an appeal to state officers. Such right of appeal might be thought to prevent a certiorari. Code, § 2122. The limitation of four months in § 2125 of the Code would cause too much delay in the collection of this tax.

Therefore, I think that this certiorari was too late and was improperly granted. But a majority of the court are of the opinion that a contrary doctrine was held by them in People ex rel. American Contracting & Dredging Co. v. Wemple, Comptroller, May, 1891, 38 N. Y. State Rep., 17. Hence, I proceed to examine the merits.

The first question on the merits is whether the relator is “ doing business in this state” within the meaning of the corporation tax law, § 3, chap. 542, Laws of 1880. The relator maintained a sales agency in the city of Hew York; sold the product of its mills in this state; refined crude oil m this state; maintained a deposit or storage of its products, and kept on deposit in the banks of Hew York large sums of money for the use of the relator and for carrying on its business. Such are the statements in the return." People ex rel. v. Fire Commissioners, 73 N. Y., 437; People ex rel. Peck v. Commissioners, 106 id., 64; 8 N. Y. State Rep., 634; Code, § 2138. It is suggested by the relator that under § 2139 the court should now permit it to introduce affidavits contradicting these allegations. The return was made in January; and whatever might be our power to hear contradicting affidavits, we do not think that at so late a time and after argument we should take the course suggested.

Taking then this return of the facts, we think that the decision in People v. Horn Silver Mining Co., 105 N. Y., 76, at p. 83 ; 6 N. Y. State Rep., 495, shows that the company was doing business in this state. Such was the conclusion of Judge Wallace in Southern Cotton Oil Co. v. Comptroller, MS., where this company brought an action in equity to restrain the collection of the taxes, in which action the relator set forth in affidavits the nature of its business here.

The relator to enforce its view cites the act of 1851, chapter 176, and the act of 1855, chapter 37, and Parker Mills v. Commissioners of Taxes, 23 N. Y., 242, construing the latter act, and, also, People ex rel. Bank of Montreal v. Commissioner of Taxes, 59 N. Y., 40. But those laws and those decisions respect the taxation of property in this state. They do not touch the question now involved. This present law is not a tax on property. Home Insurance Co. v. New York, 134 U. S., 594; S. C., 92 N. Y., 329; People v. Equitable Trust Co., 96 N. Y., 387. It is a tax on the privilege of doing-business here. State Railroad Tax Cases, 92 U. S., 575.

The subject was again considered in People v. American Bell Telephone Co., 117 N. Y., 241; 27 N. Y. State Rep., 459, and the distinction taken in that case confirms the views above expressed.

The relator further insists that this law in its effect on corporations of other states is unconstitutional, as an interference with interstate commerce. Robbins v. Shelby Taxing District, 120 U. S., 489; Asher v. Texas, 128 id., 129; Leloup v. Mobile, 127 id., 640. But this is well answered by Judge YTallace in the case just referred to. He says that the state could not tax the privilege of soliciting orders here in behalf of sellers doing business in other states. “ But a foreign corporation which establishes a business domicil here and brings its property within this jurisdiction and mingles it with the general mass of commercial capital is taxable here and the power of the state is ample to tax its property or to lay a tax on its privilege of doing business.” It seems to us that this is a sound distinction; and that it shows that the present case does not come within the decisions condemning interference with interstate commerce. See Society for Savings v. Coite, 73 U. S., 607.

There is a clear distinction between the cases in which a citizen of one state sends agents or drummers into another, and the state into which they are sent imposes a license fee on them, and other cases in which a citizen of one state goes into another and carries on business there. In the latter class of cases there seems to be lacking that element of interstate commerce which a majority of the court discovered in the Robbins case. The argument of the relator seems to go so far that the state could never, under this statute, tax a corporation of another state for any business which it should do in this state, coming here and carrying on such business. And when we consider that it is the privilege of doing business here as a corporation on which this law imposes a tax, we shall see that the, law is not subject to the criticisms made by the relator.

It may not be easy to draw the line between such laws as do and such laws as do not- interfere with the constitutional right that congress alone shall control interstate commerce. The views of the judges of the highest court of the country vary, and many of the cases show very able dissenting opinions. But from the best examination which we can give of this case and of the decisions referred to by the relator’s counsel, we think the action of the comptroller was correct No argument is presented- as to the amount of the tax, in case the relator is taxable.

Decision of the comptroller confirmed, with fifty dollars costs and disbursements.

Landon and Mayham, JJ., concur on the merits.


text:
    Frederick Beiermeister, Jr., and George A. Spicer, App’lts, v. The City of London Fire Ins. Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Insurance (Fire)—Cancellation of policy.
    Plaintiffs had policies on their property amounting to $9,000, including one of $1,000 in the defendant company. One of the other policies being about to expire, one S. applied to the agent of defendant for a policy of $2,000 to cover both, but the agent refused to do so, offering to issue one in the N. company for that amount and cancel the one issued by defendant. This new policy was accepted by plaintiffs on the day of the fire, and they were immediately after the fire notified of the arrangement under which it was made. They permitted the insurance companies to include both the N. policy and that of defendant in the adjustment of the loss. Held, that by claiming under the N. policy they wére bound by the terms and conditions on which it was issued and could not hold defendant on its policy.
    Appeal from, judgment in favor of defendant, entered upon verdict directed by. the court.

      Smith & Wellington (C. B. Wellington, of counsel), for app’lts; C. S. & C. C. Lester (C. S. Lester, of counsel), for resp’t.
   Learned, P. J.

—After each party had rested, each asked the court to direct a verdict Before decision, the plaintiff, by leave, recalled a witness and gave further testimony. When the testimony had been given, the plaintiff asked to go to the jury. The court refused on the ground that each side had asked for the direction of a verdict, and that such request was an admission that there was no question of fact for the jury.

It is true that such request has been held to be an admission that, at the time it was made, there was no question of fact for the jury. But it could not be an admission that no question of fact for the jury would afterwards arise when, by permission of the court, further evidence had been given. We think, then, that the learned justice gave an incorrect reason for his refusal. But if, on the whole case, the refusal was proper, the incorrectness of the reason .is immaterial.

On the 7th of February, 1888, plaintiffs, among policies amounting in the aggregate to $9,000, had one of $1,000 in defendant’s company expiring the 12th. On that day one Stillman, whose relation towards plaintiff is not apparent, called on Carpenter, the defendant’s agent, and proposed to obtain from defendant for plaintiffs a $2,000 policy in place of. the $1,000 in the California Insurance Company, expiring the 8th. Cafpenter refused, because the defendant had directed him not to write policies on property out of Troy. But he offered to write a $2,000 in the Norwich Union, dated February 8th, of which also he was agent, and to to cancel the $1,000 in defendant’s company. To this Stillman assented. Carpenter wrote the policy and said: “I wish you would take this policy up there yourself and deliver it, so that there can’t be any mistake about the cancellation of the City of London policy.”

The Norwich Union policy was received by plaintiff the 8th, and was sent back for correction in respect to the name of the insured, was corrected and returned and received by plaintiff, as corrected, the morning of the 9th. In the afternoon the insured property was burned. After the fire, and before the settlement with the companies, the plaintiffs were informed by Carpenter of the arrangement under which this policy was issued. As to this point the plaintiff claims that there is a conflict of evidence. But the plaintiff Beiermeister contradicts himself, and the testimony of Carpenter is positive. Beiermeister first admits and then denies his knowledge.

The plaintiff Beiermeister testifies that after the fire, and after waiting a few weeks for the insurance companies to settle, they, the companies, finally decided that the policy in question must go in and bear part of the loss, and that he said he would do as they said. And the plaintiffs in their proofs of loss in this case include both the Norwich Union policy of $2,000, and the defendant’s policy of $1,000, making the aggregate of $10,000, or $1,000 more than the aggregate which they had on the 7th of February. And the plaintiffs received from the Norwich Union their proportion of the loss, based on that aggregate.

Now, it is evident that it was for the interest of the companies, other than defendant, to claim that defendant’s policy was in force, as such claim, if allowed, diminished their relative proportion. But if the plaintiffs consented to admit such claim of the companies and to act thereon, they must accept the consequences of their action.

As Carpenter was agent both of the defendant and of the Norwich Union, each of those companies had knowledge of the terms and conditions on which the policy of the Norwich Union was written. And the defendant is entitled to the benefit of such terms and conditions, provided they can be shown to be binding upon the plaintiffs.

There is no evidence that the plaintiffs had desired before the fire to increase their insurance from $9,000 to $10,000. After the fire, and before any payment of the loss or even demand for payment, the plaintiffs were notified that there was no real increase, but that the Norwich Union policy was in the place of the California policy and the defendant’s. Perhaps then they could have rejected the. arrangement between Carpenter and Stillman. They could have accepted the loss of the California policy, which had expired on the 8th, and could have claimed to hold only the defendant. If they had taken that position, they would have assumed to have only $8,000 insurance in the aggregate. This would probably have been unsatisfactory to them. But they did not do this. Ón the contrary, they claimed the Norwich Union policy to be valid and in force. Therefore, they must be bound by the terms and conditions on which it was issued.

We think a verdict was properly directed for the defendants.

Judgment affirmed, with costs.

Landon and Mayham, JJ., concur.


text:
    The People, Resp’ts, v. Edward Wilber, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Juby—Challenge.
    On the trial of an offense under the excise laws the defendant challenged the array of jurors because they were summoned by an officer under the official control of the complainant, and on the ground that they were not fairly and impartially drawn. The record states: “People object. No testimony offered to sustain challenge. Challenge overruled." Held, that it should be assumed from such record that the People denied the facts alleged, and no evidence being offered to sustain them, the challenge was properly overruled.
    S. Statutes—Constitutional law—Laws 1890, chap. 55.
    The fact that chap. 55, Laws 1890, the charter of Gloversville, provides that a certain part of Johnstown shall constitute the city of Gloversville and the rest shall be Johnstown, does not render the act unconstitutional within art. 3, § 16, of the constitution.
    3. Same.
    Nor is the provision of the act giving the recorder authority to hold courts of special sessions unconstitutional under art. 8, § 17, of the constitution.
    Appeal from judgment of the court of sessions of Fulton county, affirming in part the judgment of the recorder’s court of the city of Gloversville, convicting - defendant of the offense of selling liquor without a license, and modifying the sentence to ninety days imprisonment

      Clark L. Jordan, for app’lt; William Green (Edgar A. Spencer. of counsel), for resp’ts.
   Learned, P. J.

—This case was submitted without argument We have endeavored to understand on what legal grounds the ■defendant asks a reversal.

We cannot on this appeal review the refusal of the county judge to grant the certificate authorized by § 57, Code of Crim. Procedure.

Before any jurors were drawn the defendant challenged the array, on the ground that the jury was summoned by an officer connected with the police department of Gloversville and under the official control of the complainant, who is chief of the police of that city, and that said jury were not fairly and impartially drawn.

The record says: “ People object; no testimony offered to sustain challenge; challenge overruled.”

The People do not appear to have insisted that the challenge should be in writing, Code Crim. Pro., § 363 ; and at any rate it is written in the record. It is not clearly stated whether the People excepted to the challenge. Code Crim. Pro., § 364, or denied the facts,_ § 366. But from the statement no testimony offered to sustain challenge,” we think that the understanding must have been that the facts were denied. If the challenge had been excepted to under § 364, then the court would have tried the sufficiency, assuming the facts alleged therein to be true. It is the part of the appellant to show affirmatively that there was error. He should, therefore, make it distinctly appear what coarse was taken in respect to the challenge. As he fails to do this, we think that in a case of this kind we are to take the view more favorable to the regularity of the proceedings.

If the facts of the challenge were denied and no evidence was given, then, of course, the challenge was properly disallowed. Now, it is quite plain that the People did not intend to admit that “ the jury were not fairly and impartially drawn,” which was a part of the challenge, and which could not be assumed to be true without evidence. It is true, as defendant says, that some of the matters alleged in his challenge appeared or might be shown by the record. But this last allegation did not so appear. We are to discover from the record, if possible, whether the People excepted, which is equivalent to demurring, or denied, by doing which there would be an issue of fact. They did not except to part and deny part And they certainly did not except to the last allegation. If they had excepted to the challenge, there would be no reason for the entry that no testimony was offered.

The next point is that the authority given to the recorder is contained in the act incorporating the city of Gloversville, chap. 55, Laws 1890, that the act is unconstitutional under § 16 of art. 3 of the constitution of New York, because it not only incorporates Gloversville but divides Johnstown. Sections 1 and 6.

Section 1 declares that a certain part of Johnstown shall con- - stitute the city of Gloversville, and § 6 declares that the rest shall be Johnstown. It does not seem to us that this is within the constitutional prohibition; especially when we consider what was the well known object of that part of the constitution.

Another objection to the recorder’s authority is that title 9 of qhe act last cited is unconstitutional under § 17, art 3. Giving the recorder authority to hold courts of special sessions is not, we think, within the prohibition of that section as it it has been construed by several decisions.

The judgment and conviction are affirmed.

Landón and Mayham, JJ., concur.


author: Mayham, J.

text:
    Rachel A. Woolsey, Resp’t, v. The Trustees of the Village of Ellenville, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Negligence—Municipal corporations.
    Plaintiff was injured by falling upon ice which had formed on the sidewalk of one of defendant’s streets. There was evidence to show that water had been collected in a surface drain which had no proper outlet and thus was discharged on the sidewalk. Eeld, that it was a proper question for the jury whether the ice was formed by that act of defendant, and whether it had constructive notice by lapse of time after the formation of the ice and before the accident.
    3. Same—Evidence—Married women.
    In an action by a married woman to recover for injuries caused by negligence, evidence that she was carrying on a separate business and that the profits thereof were hers is inadmissible in the absence of an allegation in the complaint that she had a separate business or of special damages on account of such business.
    (Landon, J., dissents.)

      Appeal from, a judgment entered upon the verdict of a jury at the Ulster circuit, and from an order denying a motion to set aside the verdict upon the minutes of the judge at the trial.
    The action was prosecuted for an alleged injury to the plaintiff from falling upon the sidewalk of the village of Ellenville, which the plaintiff claims was negligently permitted to be out of repair by the defendant, by reason of which the plaintiff was injured. The jury rendered a verdict in favor of the plaintiff for $5,000, on which judgment was rendered and the defendant appeals.

      A. T. Clearwater, for app’lts; John E. Van Etten, for resp’t.
   Mayham, J.

—The appellant insists that the learned trial judge erred in refusing to dismiss the complaint on motion of the defendant at the close of the plaintiff’s evidence at the trial, on the ground that plaintiff failed to prove facts sufficient to charge the defendant with negligence or constitute a cause of action against it

This presents the question whether, from all the evidence, there was sufficient to authorize the jury upon the most favorable construction for the plaintiff of which it was capable to find for her. In the very careful analysis of the evidence by the learned judge in deciding this motion, it seems clear that he disclosed a state of facts from the evidence which the jury might adopt in arriving at a verdict for the plaintiff. The theory of the plaintiff was, that the defendant, by the construction of a surface drain or ditch on the southerly side of Cross street, had conducted the water down to the sidewalk on the northerly side of Canal street, and without furnishing a sufficient way of escape under the sidewalk had caused or permitted the same to flow upon the flagging of that walk and thence down the same in a southwesterly direction to the point where the accident is alleged to have occurred and forming a coating of ice on which the plaintiff fell and was injured, and the judge in discussing and deciding the motion, said : “If the plaintiff can recover in this case, it must be upon the general ground that the village caused the water which it collected in this ditch to be discharged on this sidewalk by not providing a proper outlet; that the sidewalk was so fixed that the water could not escape from it” And he held, and we think properly, that it was a question for the jury to determine, whether the ice was produced by that act or by some agency for which the village would not be responsible.

But it is insisted by the defendant that within the doctrine laid down by the court of appeals in Harrington v. The City of Buffalo, 121 N. Y., 147; 30 N. Y. State Rep., 719, the complaint should have been dismissed for want of proof of notice of the defective walk to the defendant, and a sufficient time after notice to remedy the defect. But this case does not seem to have established any new rule upon that subject. If the right to recover depended solely upon the question, whether or not the defendant by its affirmative act in collecting and giving direction to the surface water through this ditch caused the ice to form, then knowledge of that defect would be imputable to the defendant from its own act; but the court held that it was a question for the jury whether, under the evidence, the defendant had constructive notice by lapse of time, after the formation of the ice and before the accident, and we think it was a proper question for them.

The case discloses that the plaintiff, at the time of the injury and trial, was a married woman, having a living husband. The plaintiff was permitted to prove, under the objection of the defendant, that she was carrying on a separate business on her own account, and that the profits of the business were hers. There is no allegation in the complaint that the plaintiff had a separate business carried on on her own account, or any allegation of special damages on account of her separate business; and we think the admission of this evidence under the defendant's objection and exception was error. In the case of Sarah Uransky v. The Dry Dock, E. B. & Battery R. R. Co., 118 N.Y., 304; 28 N. Y. State Rep., 711, this direct question was raised, and, as it appears to us, definitely settled by the second division of the court of appeals.

In that case, as in this, the action was by a married woman. In that case, as in this, the complaint contained no allegation of special damage, or that the plaintiff was carrying on a separate business ; and Parker, J., in delivering the opinion of the court, uses this language: “ Presumptively, damages for negligently diminishing the earning capacity of a married woman belong to her husband; and when she seeks to recover such damages the complaint must contain an allegation that for some reason she is entitled to the fruits of her own labor; and if she seeks to recover damages for the injury to her business, she must allege that she was engaged in business on her own account, and by reason of the injury was injured therein, as specifically set forth.

“ No such allegations are contained in the complaint in this action. Nevertheless the plaintiff was permitted to prove, against the objections of the defendant that the evidence was'.irrelevant and immaterial and called for damages not alleged in the complaint, that she was engaged in the dressmaking business; this was error.”

It seems quite impossible, upon principle, to distinguish that case from the one at bar. It is true that the learned judge used this language: “ The evidence is clearly admissible as descriptive of her condition, and for no other purpose.” But I cannot see that that in any way relieves it from the error of its admission, especially as the learned judge, in denying the motion to strike out this evidence, said: “Nothing is better settled than the fact that a married woman can carry on her own business separately from her husband. I overrule the objection.”

"We think the objection to this evidence was well taken; as was the exception to its admission; and as the court on review cannot see that it did not affect injuriously the rights of the defendant, we cannot disregard the error.

As this error makes a new trial necessary, an examination of the other exceptions of the defendant is not profitable.

The judgment is reversed and a new trial ordered, costs to abide the event

Learned, P. J., concurs; Landon, J., dissents.


author: Dykman, J.

text:
    In the Matter of The Citizens’ Water Works Co. v. David Parry et al.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Appeal—Eeabgument.
    A motion for the reargument of an appeal at general term cannot be made after an appeal has been taken to the court of appeals.
    Motion for reargument For former decision see 35 1ST. Y. State Rep., 640.

      Calvin Frost and C. E. Tracy, for motion; A. H. F. Seeger, opposed.
   Dykman, J.

—Before the order to show causé why a reargument should not be granted in this court an appeal had been taken to the court of appeals from the order of the general, term and of course that appeal removed the cause from this court so far as any action of the general term is concerned.

It has been held that motions may be made at special term in actions which have been carried to the court of appeals, but we know of no authority for making any motion in the general term after such appeal

Our conclusion is that the motion should be denied, with ten dollars costs.

Barnard, P. J., and Pratt, J., concur.


text:
    The People, Resp’ts, v. Jane L. Miller, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Disorderly house—Sentence,
    On a conviction of keeping a disorderly house, where the testimony does not show actual personal knowledge of the defendant of the disorderly conduct, and she denies having such knowledge, a pecuniary fine is sufficient punishment.
    Appeal from judgment of the court of general sessions of Orange county, convicting defendant of the crime of keeping a disorderly house, and sentencing her to be confined for six months at hard labor in the Albany penitentiary.

      William Van Namee (W. F. O'Neill, of counsel), for app’lt; T. A. Read, for resp’ts.
   Dykman, J.

—The evidence was sufficient to sustain the conviction, but as the testimony failed to show actual personal knowledge of the defendant of the disorderly conduct in her house, and as she denied such personal knowledge, we think the law will be sufficiently vindicated if the punishment is changed from imprisonment to á pecuniary fine.

The judgment is therefore modified by changing the sentence from imprisonment to a fine of twenty-five dollars.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    James Donnelly, Resp't, v. Edward J. Woolsey, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Jurisdiction—County court—Appearance.
    Where a defendant appears generally and demands a copy of the complaint in an action in a county court, this constitutes a waiver of objection to the jurisdiction of the court, and the county court has jurisdiction even if both parties are not residents of the county.
    Motion for reargument For opinion on former hearing see 38 R. Y. State Rep., 39.

      S. B. Noble, for motion; Knevals & Perry (Edward J. Knauer, of counsel), opposed.
   Barnard, P. J.

—The motion for a reargument should be denied.

The defendant leased a farm to the plaintiff with a right to compel him to vacate on seventy days notice. If such notice was given and the farm given up the damages were to be appraised by arbitration. The lease was an extraordinary one in its provisions and was full of possible litigation.

The case on the trial developed serious questions of fact, and these questions have been settled by a jury. The action was commenced in the county court by the service of a summons only. The defendant appeared generally and demanded a copy of the complaint

This gave the county court jurisdiction even if both parties were not residents of Queens county, where the venue was placed. The general appearance before the framing and service of the complaint did not render the general appearance less effective. The court had jurisdiction of the cause of action and of the parties if residents.

The summons gave jurisdiction of the person if accepted and assented to; and the general appearance was a waiver of all objection.

The court of appeals has decided the point presented in various cases. ■ Clapp v. Graves, 26 N. Y., 418; Jones v. Jones, 108 id., 415; 13 N. Y. State Rep., 838.

The motion should be denied, with ten dollars costs.

Dykman and Pratt, JJ., concur.


text:
    Catharine Crowther, Resp’t, v. The City of Yonkers, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Municipal corporations—Negligence.
    A municipal corporation is guilty of gross negligence where it permits a trench for a sewer which it is constructing, and which is eight feet deep, to remain unlighted and without guards except at the head of the excavation.
    3. Same—Contributory negligence.
    Plaintiff left her son’s house at six o’clock on a dark evening and was shortly afterward found injured at the bottom of such a trench about seventy feet from the head of the sewer. There was no evidence of attempted suicide or of violence from others. Held, that the jury were justified in finding her free from contributory negligence.

      Appeal from judgment in favor of plaintiff, entered on the verdict of a jury.
    Plaintiff was found injured at the bottom of a sewer trench which was being constructed by defendant, about seventy feet from its head and at a place where it was about nine or ten feet deep. Her mind became affected by her injuries so that she was unable to testify on the trial, and no evidence was given as to how the accident was caused.

      Joseph F. Daly, for app’lt; James M. Hunt, for resp’t.
   Barnard, P. J.

—The defendant was constructing a sewer in ISTepperhan avenue. The sewer was only protected at the head of the excavation. The sides were left unprotected. On the night of the 7th of January, 1890, the plaintiff was found injured at the bottom of the sewer trench, which was some eight feet deep and some seventy feet from the head of the sewer. The defendant was guilty of gross negligence. Pettengill v. City of Yonkers, 116 N. Y., 558 ; 27 N. Y. State Rep., 531.

The proof that the accident was caused by this neglect was sufficient. The plaintiff left her son’s house in Jones place at about six o’clock to go to her home. She had to cross Nepperhan avenue to get there. She was found in the trench. There was no suggestion of suicide from the evidence and none of violence by others to the plaintiff. The natural inference was that the plaintiff, in her attempt to cross the avenue, fell in the unguarded excavation. She had the right to cross the street with due care at other points than the regular crossings. She also had the right to assume that the streets were safe.

She was free from contributory negligence as matter of law, and the jury were justified in finding her free from contributory negligence as a matter of fact. The night was very dark. The plaintiff was an elderly woman. The point of crossing hiepperhan avenue was in the direct line of her route home. She was found in the trench so soon after leaving her son’s house as to prove that she went directly for her home until she fell in the trench. The trench was invisible to those who found her. The place was unlighted and it was a very public thoroughfare. The action is supported by the cases pf Johnson v. Hudson R. Railroad, 20 N. Y., 65; Totten v. Phipps, 52 id., 354; Tolman v. Syracuse, Bing. & N. Y. R. R. Co., 98 id., 198; Galvin v. The Mayor, 112 id., 223; 20 N. Y. State Rep., 569.

In the case of Bowen v. The City of Rome, 23 Wk. Dig., 406, the plaintiff knew of the excavation, and without due care attempted to cross it and fell in and was injured. She was nonsuited for contributory negligence.

This case had enough evidence to go to the jury on that question, under the rule laid down by the court of appeals in the cases above cited.

Judgment affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Peter Shields, Sole Ex’r of James Murphy, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Master and servant—Negligence.
    Plaintiff’s testator had charge of the movements of defendant’s freight and coal cars in its yard. He directed two coal cars to he moved and jumped upon the last one. and was next seen on the track under the coal, which had escaped through the trap in the car. The chain fastening the trap had been broken, and had been mended with wire two weeks before, of which fact deceased had knowledge. Held, that the questions of negligence and contributory negligence were properly left to the jury.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Robert F. Wilkinson, for app’lt; Hackett & Williams, for resp’t.
   Dykman, J.

—This is an appeal from a judgment in favor of the plaintiff entered upon a verdict obtained at the circuit, and from an order denying a motion for a new trial on the minutes of the court

The testator of the plaintiff was in the employment of the defendant at Poughkeepsie, and on the 19th day of January, 1889, he received an injury while in the discharge of his duty, and he died about two months thereafter.

This action was brought under the statute upon the allegation that his death resulted from the negligence of the defendant.

The general duty of the deceased was to move and switch the cars around the station at Poughkeepsie and to place them where they were required, and it was customary there to keep two coal cars standing upon a side track under the coal chute to receive the coal dropped onto the track, and those cars were moved from the east to the west side of the main tracks as occasion required, and when they were filled they were switched upon the coal chute and emptied.

The deceased had full charge of all the coal cars; he was especially in charge of the movement of the coal cars and picking up the coal. The engineer was under his orders, and any one else who assisted him to move the cars.

On the day of the accident two coal cars about two-thirds full of coal were "standing on the east side track, and the deceased signalled the engineer to couple the engine to the cars, which was done, and then the deceased got up on the rear end of the rear ear by the brake, and the engine started north with the two cars to switch them back upon the west side track, and that was the last seen of the deceased previous to the accident No one saw how it happened, but the deceased fell to the track, and was found there under the coal in an injured condition.

The car upon which the deceased stood when he was seen last had been in use at that place for several weeks; there was a trap in the bottom which fell or was let down to empty the car, and was raised again by a chain attached to the trap and wound up on a cross bar. The chain was fastened to the bolt which runs through the cross bar, and to the bottom of the car. When the bottom drops down, as it does when they unload the coal, the chain goes down with it and lets the coal out. When they want to close this bottom they wind up this bar with a large wrench, and that turns the chain around the cross bar, and that closes the bottom of the car; the link that holds the trap was broken; there are two of these, and the link was broken about three links from the comer of the trap of the car. It was broken two or three weeks before the accident.

When the deceased was found under the coal the trap of the car was hanging down, and the chain, which was designed to hold it in its place, was broken. The chain had been broken and mended with wire two weeks before, and three days before the bottom of the car was repaired by putting boards into it to prevent the coal from falling through the trap, which was partly opened and could not be closed in the usual manner by winding up the chain on the cross-bar.

It appeared that the deceased had knowledge of the condition of the car, and saw the boards placed in the bottom.

At the trial, and upon the argument before us, the theory and contention of the defendant was that the uncontradicted proof left no question for the jury either respecting the negligence of the defendant, or the contributory negligence of the deceased but we find ourselves unable to coincide with this view.-

While the proof is harmonious as far as it proceeds, it yet leaves much room for legitimate inference, and from the facts established diverse conclusions might well be reached by different minds.

The deceased was in the discharge of his duties; the car he was using was defectiye, and he knew it, but did he have reason to believe it would endure the use to which it was subjected, or was it careless for him to use it ? The question was pre-eminently proper for the determination of the jury, and was not so plain as to justify its decision as a matter of law.

The deceased was found under the coal, with the trap down and the chain broken. How did he come there ? Did he go through the bottom of the car with the subsidence of the coal, caused by the breaking of the chain and the falling of the trap, and thus become involved and covered with the coal ? The question is one of fact and not of law, to be answered by the jury and not by the court.

We think the case was properly sent to the jury, ana that there was proof sufficient to sustain the verdict.

The judgment and order denying the motion for a new trial should therefore be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    The People, Resp’ts, v. Henry E. Kane and William Ford, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Malicious mischief—Indictment.
    An indictment stating that defendant unlawfully destroyed a boat of' a specified value belonging to, etc., is sufficient under § 654 of the Penal Code.
    2. Same—Defense.
    It is no defense to such indictment that such destruction was committed under advice of counsel.
    Appeal from judgment of the court of general sessions of Suffolk county, convicting defendants of the crime of malicious mischief.
    Defendants were indicted for unlawfully destroying a boat which was the property of Lewis H. Davis, being of the value of sixty dollars. It appeared that the father of the defendant Kane was the owner of a mill pond; that Lewis H. Davis, who owned a farm adjoining said pond, persisted in keeping a boat on said pond, and notwithstanding repeated notices to remove it, refused to do so; that defendant’s father went to Europe, leaving the pond in his son’s charge; that, acting Under advice of counsel, defendants, finding the boat on the pond, destroyed it in broad day light near a public highway where people were passing and could see it done.
    ■ Livingston Smith, for app’lts; Benjamin H. Reeve, for resp’ts.
   Dykman, J.

—The defendants were indicted under § 654 of the Penal Code, which provides as follows : “A person who unlawfully and wilfully destroys or injures any real or personal property of another in a case where the punishment thereof is not specially prescribed by statute, is punishable as follows : ” etc., and tire indictment stated specifically that the defendants unlawfully injured and destroyed a boat which was the property of' Lewis S. Davis, and being of the value of sixty dollars.

The defendants were tried and found guilty at a term of the court of sessions in Suffolk county, and this appeal is from such conviction.

Our examination of the case leads us to the conclusion that the indictment was properly framed and contained a criminal offense under the statute. The testimony also sustained the indictment and proved the defendants guilty of the offense. The claim that the boat was destroyed under advice of counsel constituted no defense to the indictment and there were no errors committed upon the trial.

The conviction should be affirmed.

Barnard, P. J., and Pratt, J., concur.


text:
    Parker P. Baldwin, Resp’t, v. The Citizens’ Ins. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

      1. Insurance (Fire)—Condition as to ownership.
    When an insurance company issues a policy with full notice that the building insured stands on leased ground the policy is good notwithstanding a condition that it shall be void if the subject thereof is on ground not owned by the assured in fee simple.
    2. Same—Distance from other buildings.
    A recovery may be had although the policy contained a condition or warranty that the building was detached a specified distance and it appears that there were other buildings within that distance where it is found that their presence did not increase the risk.
    3. Same—Waiver.
    A waiver of a condition in a policy may be established by a parol agreement although the policy calls for written endorsement on the policy itself.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.

      George B. Bonney, for app’lt; Dailey & Bell (James D. Bell, of counsel), for resp’t.
   Barnard, P. J.

—The plaintiff owned a wooden building which stood upon land owned by the city of Brooklyn and which he held in possession under a lease from the city. The policy contains a condition that all insurance shall be void if the subject thereof was on ground not owned by the assured in fee simple and that the policy contains a condition or warranty that the subject of the insurance was detached not less than 100 fe'et.

As to the ownership of the land there was proof given tending to show that the broker of the insured, at the time of his application, informed the assistant secretary that the land was owned by the city. The assistant secretary took time to consider the question and expressly sent the policy to the broker. When the jury found the fact that the company had issued the policy with full notice that the building was on leased land, the policy was good in this respect. Van Schoick v. Niagara Ins. Co., 68 N. Y., 434; Bennett v. Buchan, 76 id., 386; Richmond v. Niagara Ins. Co.. 79 id., 230.

The condition as to the distance at which the insured building was detached was the subject of conflicting evidence, not as to the real distance being about seventy feet, but as to whether the risk was increased. The jury have found the fact that the risk was not increased by the barn and the right to recover, notwithstanding a condition like this, where the risk was not increased thereby, is upheld in Burleigh v. Gebhard Fire Ins. Co., 90 N. Y., 220.

It was in the power of the company to waive a condition. Such waiver may be established by a parol agreement, notwithstanding the policy calls for written endorsement upon the policy itself. Steen v. Niagara Fire Ins. Co., 89 N. Y., 315.

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

Dykman and Pratt, JJ., concur.