author: Van Vorst, J.

text:
    Edwin N. Martin, Plff., v. Spencer C. Platt et al., Defts.

      (Supreme Court, Special Term, New York County,

      Filed September, 1886.)
    1. ATTORNEY AND CLIENT — CONTRACT FOR SERVICES — SPECIFIC PERFORMANCE — When court of equity will grant relief.
    Action was brought by the plaintiff as assignee of a contract for its specific performance. The contract was made by W. H. Platt and his two brothers as executors of the last will and testament of their deceased father. The contract by its terms purported to assign to W. R. Martin, an attorney and counsellor at latv, one half of all the claim and demand of the executors against G. W. Platt, and of an interlocutory judgment at the date of the contract recovered against the said G. W. Platt, in an action pending against him in favor of the executors, and prosecuted by Martin as their attorney. The instrument purported also to assign the property covered by the judgment. The consideration of this assignment was services already rendered, and which might thereafter be rendered in any action which had been theretofore brought by the executors to set aside conveyances of real and personal property made by their father to G. W. Platt, and in such other suits or proceedings as might be instituted by the executors to recover the property covered by such transfers. The consideration for the assignment to Martin by the executors was further enlarged by a statement .in the contract describing the difficulty of the case, the labor W. R. Martin had performed, the money he had expended, and “ the measure in which the recovery must depend on his knowledge, skill, and exertions,” and the confidence of the executors in his faithfulness and ability. The contract also recited that the compensation fixed'by it was “for his services and the services of such counsel as he has engaged or may hereafter engage in the case,” and was to be one half of the whole recovery against G. W. Platt. The services and engagement of Martin were to be continued until “ the termination of the controversy.” Pending these proceedings, which continued for ten years thereafter, and in 1875 the contract in question was assigned, or attempted to be, by W. R. Martin to his father R. W. Martin. No notice of this assignment was given to the executors. On the 1st day of March, 1879, R. W. Martin assigned the contract to one Wyckoff. This last assignment was made to secure tile sum of §2,000 borrowed by W. R. Martin of Wyckoff for his own needs and use. Notwithstanding the assignment theretofore made to Wyckoff, R. W. Martin, on the 3rd day of April, 1879, executed another assignment of this contract to his son Edwin N. Martin, the plaintiff in this action. Held, that the granting of relief of the nature of that invoked in this action is not a matter of course in all cases, nor a matter of absolute right to either party to a contract. That it rests in the discretion of the court to be exercised upon a consideration of all the circumstances of each particular case. That this discretion should only be exercised in the interest of justice and equity. That where a compensation for the breach of a contract, or for its enforcement, is adequate and practicable, the aggrieved party is turned over to his action for damages.
    2. Same — When thebe is No action in equity.

      Meld, that if the assignee of Mr. Martin has any claim to money his remedy at law is ample, and, if well founded, he can be fully satisfied by a judgment for damages. That it will not be enforced in equity through an action for specific performance of the contract.
    3. Same — When a contbact can be specifically enforced.

      Held, that a contract to be specifically enforced by the court must be mutual, such that it might, at the time it was entered into, have been enforced by either party against the other That when from the nature of the contract or any other cause, the contract is incapable of being enforced against one party, that party is incapable of enforcing it against the other.
    4. Same — When an agreement ob contbact is assignable — When non . ASSIGNABLE.
    The general rule is that the benefit of an agreement may be assigned in equity, and that the assignee can enforce specific performance of contracts of which courts of equity would decree perormance at the suit of the assignor. The exception to this rule is found in cases of contracts for personal services where learning, skill, special knowledge and confidence, are involved. Where such skilled services are to be rendered they can only be performed by the contracting party himself, and the benefits of such contracts are incapable of being assigned.
    5. Same — Party — Equitable belief is denied to a mebe nominal party.
    Where a court of equity is satisfied that the person prosecuting the suit is not the real owner of the cause of action, but is a nominal party only, it may properly deny equitable relief, which it has the discretion to grant or withhold.
    6. Same — Breach of contract.
    M., the assignor, received' and applied to his own use large sums of money, the fruits of the litigation, long before its close, and omitted to pay the counsel engaged by himself, leaving the parties to bear this burden. Held, that his conduct in receiving these moneys to his own use before the close of the litigation, and before his professional services were ended, and his omission to pay the counsel engaged by himself, was clearlya breach of the agreement on his part, if the contract was considered by the parties to be still in force, and to afford a measure of compensation for his services and liabilities.
    7. Same — Party attempting to enforce contract must show performance ON HIS PART. .
    A party to a contract, claiming to have it decreed to be specifically performed, must in good faith, and truly, perform all the obligations imposed upon him by the terms of the contract, and a failure on his part in any material point is of itself a sufficient ground for withholding equitable relief.
    8. Same — Agreement between attorney and client — When specific PERFORMANCE WILL NOT BE DECREED.
    Agreements of this nature between an attorney and clients, were at one time disfavored by statute and the judgment of the courts. Now if they are understandingly and fairly made, they will be upheld. But they never will be decreed to be specifically performed in the way herein demanded, if the attorney has failed to discharge the obligations which he has assumed.

      C. V., Yates and A. J. Vanderpoel, for plaintiff; Marsh, Wilson Wallis, for defendants S. C. Platt and others ; Pay son Merrill, for defendant C. W., Cook.
   Van Vorst, J.

This is an action brought by the plaintiff, as assignee of a contract for its specific performance.

The contract was made and executed by William H. Platt and' his two brothers, Spencer and Nathan C., as executors of the last will and testament of their father, Nathan C. Platt, deceased.

The contract, by its terms, purported to assign to William R. Martin, an attorney and counselor at law, the one equal half part of all the claim and demand of the the executors against George W. Platt, and of an interlocutory judgment at the date of the contract, recovered against the said George W. Platt, in an action pending against him in favor of the executors and prosecuted by Martin, as their attorney.

The instrument purported also to assign the property covered by the judgment.

The consideration of this assignment was services already rendered, and which might thereafter be rendered in such action, which had been theretofore brought by the executors to set aside conveyances of real and personal property, made by their father, Nathan C. Platt, to George W. Platt, and in such other suits or proceedings as might be instituted by the executors, to recover the property covered by such transfers,

The consideration for the assignment to Martin by the executors was further enlarged by a statement in the contract, describing the difficulty of the case, the labor William R. Martin had performed, the money he had expended and must continue to perform and expend, and “ the measure in which the recovery must depend on his knowledge, skill and exertions,” and the confidence of the executors in his faithfulness and ability.

The contract also recited that the compensation fixed by it was “ for his services, and the services of such counsel as he has engaged, or may hereafter engage, in the case,” and was to be one-half of the whole recovery against George W. Platt.

The services and engagements of Martin were to be continued until “ the termination of controversy.”

This contract bears date the 27th day of December, 1878. The principal action had been commenced in the year 1867, was tried at special term in 1872, and a decision had been rendered in favor of the plaintiffs, adjudging the transfers made by Nathan C. Platt to George W. Platt to be fraudulent and void. At the date of the contract, an appeal from the interlocutory judgment at special term, to the general term, was pending. This judgment was in 1873 affirmed by the general term, and afterwards in the year 1874, by the court of appeals.

A reference as to the accounts of the personal estate, and of the rents and profits of the real estate, ordered by the interlocutory judgment, continued thereafter through several years, and down to the year 1880, and was earnestly contested. Several reports from the referee were during that period made, repeated arguments were had upon motions and appeals, some of which were of great importance. All these legal proceedings were conducted by William It. Martin as the plaintiff’s attorney and counsel, and by such other counsel as Martin employed.

Final judgment was recovered in the action in 1881, in this court, which was affirmed in the court of appeals, in the year 1884, and subsequent proceedings were had under the judgment down to 1886.

Pending the proceedings and in the month of September, 1875, the contract in question was assigned, or attempted to be, by William R. Martin, to his father Runyon W. Martin.

No notice of this assignment was given to the executors.

On the first day of March, 1879, Runyon W. Martin assigned the contract to Jacob F. Wyckoff. In the negotiation for tins assignment it does not appear that Runyon W. Martin took any part. It was conducted by William R. Martin personally. This assignment was made to secure the sum of two thousand dollars, borrowed by William R. Martin of Wyckoff, for his own needs and use.

Notwithstanding the assignment theretofore made to Wyckoff, Runyon W. Martin, on the 3d day of April, 1879, executed another assignment of this contract, to his son Edwin N. Martin, the plaintiff in this action.

There is some contention as to when, if ever, this assignment was delivered to the assignee, Edwin N. Martin.

Runyon W. Martin died in 1879.

Proof of the execution by a subscribing witness was not made until May, 1886.

Where that instrument remained during all these years does not appear; certainly not in the possession or under the actual control of the plaintiff.

The plaintiff was subpoenaed, called and examined as a witness on the behalf of the defendants upon the trial of this action. The substance of his testimony was that he never saw the assignment, or knew anything about it until January, 1886. That it was then shown to him by his brother, Howard N. Martin, who explained to him that through that paper he was put in the position of plaintiff in an action. That he swore to the complaint at the request of Howard N. Martin, and did not know the real purpose of this action. Of the subsequent transfers of this contract by Runyon W. Martin, the executors were ignorant, as they were of the assignment to him.

The assignment to the plaintiff was first disclosed through the complaint in this action.

These facts are sufficient to indicate the grounds upon which the plaintiff’s demand for a specific performance of the contract above referred to cannot be granted by this court.

There are other faets which will be hereafter referred to, as they bear upon particular questions which are important to be considered.

The granting of relief of the nature of that invoked in this action is not a matter of course in all cases, nor is a matter of absolute right to either party to a contract.

It is a matter resting in the discretion of the court to be exercised upon a consideration of all the circumstances of each particular case.

This discretion, it is true, should not be arbitrarily exercised, and only in the interest of justice and equity.

Where a compensation for the breach of a contract, or for its enforcement, is adequate and practicable, the aggrieved party is ordinarily turned over to his action for damages.

It is not needful here to state the cases which are an exception to this rule, the present does not come within the category of the excepted ones.

The object sought to be reached in this action is money — the proceeds of real estate.

This real estate was sold by the decree of this court in an action of partition.

This real estate, it is true, was included in the transfer to George W. Platt, which had been in the executors’ action adjudged void.

But it has been decided that the children of Nathan C Platt took the same as devisees under his last will and testament (Cook agt. Platt, 98 N. Y., 35). The executors, as .such, had nothing to do with the testator’s real estate under his will. They had, indeed, a power of sale for the purposes of the will, but it was never exercised.'

In the action of partition, this real estate being incapable of partition, was directed to be sold and the proceeds to be divided among the children of the testator, who had been adjudged to be seized thereof as tenants in common. The terms of the contract in question do not touch the real estate. Although the contract professes to assign the interlocutory judgment already recovered and the property therein described, it could not in any form operate as a transfer of the real estate or any interest therein, the title to which, under the will and by force of the judgment itself, was not in the executors, but in the devisees.

In the action of Platt against Platt in this court', being .the action for the partition of the lands among the devisees, it was claimed on the behalf of one of the defendants, through William R. Martin as his attorney and counsel, that by virtue of the contract or agreement in question, he had an interest and estate in the lands, and was a necessary party to the action.

Justice Beach, before'whom the action was tried, declared otherwise, and refused to receive the contract in evidence; his language was tlie ruling excluding “ The agreement between William H. Platt, Spencer C. Platt and Nathan C, Platt, as executors of Nathan C. Platt, deceased, and William R. Martin, still seems correct. The executors had no title to the realty, and I cannot see .how under such circumstances it was possible for them to convey to Martin any interest therein or lien upon it. The contract is not under seal, and contains no words of grant. There are a few exceptional cases where an executor or trustee may create a lien or charge upon the estate, but this agreement does not make' one.”

It was decided that William R. Martin was hot a necessary party to the action.

But notwithstanding that the learned Justice so decided, by his interlocutory judgment, he ordered that it should be referred to a referee appointed .by him, amongst other things, to ascertain whether any creditor not a party to the action had a lien upon, the whole of the lands .or upon the interests of the several parties thereto, and the amount of such lien, and also to ascertain and determine whether there is any creditor not a party to the action who had a lien upon the. undivided share or interest of any parties to the action, and the amount of such lien.

It was decided in the superior court, in Cooke against Platt, in which this agreement was considered, that it was beyond the powers of the executors to make such a contract so as to charge the estate of Nathan C. Platt, and that it was ineffectual, at least in so far as it was not assented to by any one interested in the estate. It was adjudged, to be absolutely void as to Mrs. Cooke, a sister of William H. Platt, who knew nothing of the making or existence of the contract, and had not assented to if.

See manuscript opinion of Sedgwick, C. J., delivered in that cause. , ■

Cooke against Platt is not, however, any authority for deciding here that the interests of the several executors in the estate of their father, as individuals, is impressed with the lien or obligations of the agreement, or that they, as individuals, could be compelled by'the judgment of a court of equity, specifically to perform it by conveying to William R. Martin, or to his assignee, the one-half part of their several interests in the lands in question as an approximate satisfaction of a contract, for the one-half interest of the executors as such, in all the property the subject of the litigations referred to in the contract.

In executing the agreement in question they did not contract with their attorney, who had himself prepared the instrument in a form to suit himself, otherwise than as executors. Having been prepared by himself and submitted by him to the executors for their approval and signature, the presumption is that this agreement asserts his claim and the liability to be assumed by each, as he desired it to be understood, and in the end to be enforced.

If the property of Mrs. Cooke, the sister of the executors and one of the devisees of the real estate, is not chargeable with this agreement — and that it is not, under the judgment of the superior court, must he accepted here — then the contract, according to its terms, could not in any view be specifically performed.

For by its language one-half the judgment and the property therein described is devoted to the payment of the professional services of Mr. Martin. '

It would not be within the power of the executors, as individuals even, to execute this contract, according to its terms, by a conveyance of one-half of the property, unless they should be compelled to make up Mrs. Cooke’s proportion, which would -be inequitable, and a court of equity will not compel specific performance unless.it can execute the whole contract.

But, as already suggested, the land itself, the property claimed do have been specifically recovered, and which was included in the judgment assigned to Martin, has been sold under the decree of this court, and the proceeds, in money, have been directed to be divided amongst the devisees according to their respective interests.

This action was not commenced until after such judgment and ■sale in the partition suit. To affect the land specifically earlier .action was needed. What is therefore sought to be reached in this action is not the specific property covered by the contract, but money.

If the assignee of Mr. Martin has any claim to money, it is ■ not to be enforced through an action for the specific perform-ance of the contract. No action in equity is needed. The rem-edy at law is ample, and the plaintiff’s claim, if well founded, can be fully satisfied by a judgment for damages, and if he has ■any specific lien on these moneys he can assert it in the action-for partition, under the permission to creditors having such lien, ■to present same to the referee who had made the sale.

There is, however, this specific objection to the granting of this relief growing out of the fact that there is a want of mutuality with respect to the obligations of this contract and of their enforcement in equity. “ For a contract to be specifically enforced by the court it must be mutual. That is to say, such that fit might, at the time it was entered into, have been enforced by either of the parties against the other of them.” Fry on Specific Performance, Sec. 286.

For when, from the nature of the contract, or any other cause, -the contract is incapable of being enforced against one party that party is incapable of enforcing it against the other. Idem.

“ And as contracts of hiring and service are always of a confidential character, and cannot, therefore, be enforced against an unwilling party, with any bope of ultimate success, courts of equity, as a general rule, now refuse to decree specific performance of them.” (Wait’s Actions and Defenses. Vol. 5, pp. 767, 768.)

This is in no sense a technical rule, but its application in the cases named is certainly agreeable to equity. The services to be rendered by Mr. Martin to entitle Mm to the compensation mentioned in the contract were, in their nature, personal, depending upon his peculiar knowledge, skill and power to accomplish. The rendering of these services by Mr. Martin in the prosecution of one or more actions, the employment of this knowledge and skill to the best advantage of his clients, and the exercise of his judgment in the management of the litigations and in the employment of additional counsel are obligations of a nature not to be specifically and satisfactorily enforced by the judgment of the court.

That Martin had partly performed the work when the contract was entered into does not answer the objection. The engagement was indivisible. The litigations were expected to continue, as they did, for man3 years, and the sendees and skill were to be rendered and exercised until the end.

Mr. Martin did not himself sign the contract, nor place himself under any direct covenant or agreement to render the services or expend the money. Had he thrown up the case at any moment I fail to see how he could have been compelled by the judgment of this court to go on and render the services, apply the knowledge and skill and make the expenditures of money called for by the agreement. And it is to be borne in mind that the test in this regard is was the contract “ at the time it was entered into” such a one as equity would or could enforce. Fry on Specific Performance, page 62, and note; Haight v. Badgley, 15 Barb. Sup. Ct., 501.

In addition to these objections to the specific relief sought, growing out of the nature of the contract, is the further one that the contract is not assignable.

The general rule, doubtless, is that the benefit of an agreement may be assigned in equity, and that the assignee can enforce specific performance of contracts of wMch courts of equity would decree performance at the suit of the assignor.

The exception to tMs rule is found in cases of contracts for personal services, where learning, skill, special knowledge and confidence are involved. Where such skilled services are tojbé rendered, they can only be performed by the contracting party Mmself, and the benefits of such contracts are incapable of being assigned. Fry on Specific Performance, Sec. 126. Devlin v. The Mayor, etc., 63 N. Y., 8.

Sec. 1910 of the Code, authorizes the assignment of a claim or demand, but not of an executory contract, for personal services.

Had tbe assignment in question been made by Mr. Martin after all the work had been done, and the actions had been prosecuted to a conclusion, and his claim for services perfected, a different question might a,rise. But in determining this question we are to consider when this assignment was made, and pass upon its potency and effect at that time.

As has been seen, the assignment to Runyon W. Martin was made in 1873, midway in the litigations, which were continued for more than ten years thereafter.

The assignment to him was of the contract itself.

Such assignment must have operated as a dissolution of the confidential relation existing between the executors of Nathan C. Platt’s will and their attorney and counsel. Had the fact of such assignment been disclosed to the executors at the time, they would have been justified in so deciding.

The executors were not obliged to take the assignee in the place of Mr. Martin.

If the assignment was honestly made and Martin had truly parted with all his interest in the contract, its effect upon the character of his work, and efficiency thereafter, would have been severely felt to the injury of his clients.

For we cannot think that any lawyer or other person, under obligation to render important professional services, requiring knowledge and skill, would prosecute his work for years, with the interest and skill the work required, when he had in advance transferred to others all the compensation he was to receive for his services.

The fact that Martin kept the making of such assignment concealed from the executors, and continued to act and render services as attorney and counsel, until the executors had been removed from their position of trust, and Martin had been himself displaced as the attorney for the substituted plaintiff in that action, cannot change the character or effect of the transaction yof which the assignment was a part, at the time it was accomplished, or make it more favorable to the assignor or assignee than if the facts were known at the time to all concerned.

Such being the case, a court of equity could not, where its discretion is to be exercised according to all the facts and circumstances of the case, award to the plaintiff specific performance, even though he were a bona fide assignee of the contract.

But the facts of the case, appearing in evidence, do not justify a conclusion then that he is anything more than a plaintiff in name only. He is not the real party in interest.

The contract was assigned to him without his knowledge, and there is no evidence of an actual delivery to him of the instrument.

In an action in a court of law for legal redress, the possession of the assignment by the assignee would clothe him with authority and right to sue, and no inquiry as to the consideration of the assignment would be allowed except as to creditors injured thereby. Sheriden agt. The Mayor, 68 N. Y., 30.

But this is a suit on the equity side of the court," where there is not an absolute right to the remedy invoked.

The facts truly demonstrate that the real party ip interest is William R. Martin, notwithstanding the execution of the assignment to Runyon W. Martin, and from him to Wyckoff and the plaintiff.

Under such a state of facts and circumstances, this court should hesitate before ordering the contract to be specifically performed, were there no other objection to the remedy.

The plaintiff, if he has any title to maintain an action, should be left to his legal remedy, for he does not come into court under circumstances to warrant the exercise of a discretionary judgment in his favor.

That Martin regarded himself as the real owner, and as the party in interest under the contract, notwithstanding the assignments thereof, is shown by many facts.

For during a considerable period, long after the date of such assignments, and during the litigations referred to in the contracts, and as proceeds thereof, the assignor, W. R. Martin, received and appropriated to his own use large sums of money.

In the action brought by Mrs. Cooke against her brothers, the executors under her father’s will and William R. Martin, and in which the executors were removed and Martin was forbidden further to interfere with the property and assets of the estate, he interposed this contract, notwithstanding the alleged assignments thereof, as the foundation of his claim to receive and retain these moneys.

As already stated, the superior court rejected such contract, upon the ground of its invalidity ; and fixed and determined the value of the services of W. R. Martin in the action at $40,000, and rendered a judgment against him for the excess of moneys of the estate received by him over the value of his services in the action, for the sum of $20,000.

That judgment was affirmed by the general term of the superior court, and now stands unreversed, as the final decree of that Court.

Now, whilst that judgment may not be final and conclusive as to the present plaintiff, who was not a party to the action, as his supposed interest Avas undisclosed and unknown, the findings in that case do show that William R. Martin acted throughout without opposition from others as the real owner of the contract, and used it as ari authority and justification for the receipt and appropriation to his own use of the moneys and property of the estate to the amount of sixty thousand dollars.

That should be held to affect the rights of the plaintiff here.

Where a court of equity is satisfied that the person prosecuting the suit is not the real owner of the cause of action, but is a nominal party only, it may properly deny equitable relief, which it has the' discretion to grant or withhold.

Other objections have been urged by the defendants’ counsel to the maintenance of this actiom — one is that the right to the relief sought has been lost through the misconduct of W. R. Martin during the progress of the litigation.

As the contract could only be performed by Martin personally, notwithstanding the assignment, it is obvious that the assignee must of necessity be visited with all the consequences of any breach of duty, or misconduct on his part, and of this the assignee cannot reasonably complain.

By the terms of the contract the large compensation secured to Martin was based upon considerations such as these: The case was difficult — the executors had confidence in the fidelity as well as the ability, knowledge arid skill of their attorney, upon which the “ measure of the recovery ” would greatly depend. The attorney was to continue his services until the end of the controversy, that must mean until all occasion for legal services, in the various suits, and ail their branches, was fully satisfied. The compensation fixed was further based not only upon the services he had already rendered and moneys he had expended, but upon such as he must continue to perform and expend, and also for the services of such counsel as he had engaged, or might engage, in the litigation. The misconduct on the part of Martin, of which complaint is made, is, not that he neglected his duty as a lawyer in the skillful and prudent management of the case, so long as it was under his control as the attorney for the plaintiff, but that during the pendency of the litigation he received to his own use large sums of money, rents and profits of the real estate in question, and other funds, whereas he was not entitled, under the contract in question, to any compensation, until the completion of the litigation; that he failed to pay the counsel engaged by himself for their services, as he had agreed to do, and. that the parties in interest have been obliged themselves to pay such counsel. Further, that he entered into an arrangement and combination with W. H. Platt, one of the executors, by which the latter received a larger portion of the moneys realized, in the course of 'the litigation, than the other devisees received, and that he kept the facts of such arrangement and excessive payments concealed from the other parties in interest.

The fact that Martin received and applied to his own use such large sums of money, the fruits of the litigation, long before its close, and omitted to pay the counsel engaged by himself, leaving the parties to bear this burden, must be taken into consideration with the fact that the compensation reserved to tbe attorney, one-lialf tbe whole recovery was very large, and tbat such agreement was executed by tbe executors after a judgment of special term, on tbe merits, bad been recovered in their favor, when some reasonable idea of the amount of the recovery could be formed, and the extent of the compensation was based upon the consideration that the executors had no money or property to meet legal expenses, and that their attorney was to carry on the litigation and defray all its expenses, including fees to counsel with his own means, and was in fact to depend upon final success for any compensation whatever.

The complaint in this action itself alleges “ that at the time of the commencement of said action the said executors had in their hands no estate of their said testator. That the estate of their said testator was in the hands and possession of George W. Platt, from whom it was afterwards recovered as aforesaid. That they had no means to pay the necessary legal services to recover said estate.” Hence the agreement.

The'conduct of Martin in receiving these moneys to his own use, before the close of the litigations, and before his professional services were ended, and his omission to pay the counsel engaged by himself, was clearly a breach of the agreement on his part, if the contract was considered by the parties to be still in force, and to afford a measure of compensation for his services and liabilities.

In the end, by the judgment of the superior court, a receiver of the estate, pending the litigation, was appointed,' and such receiver was substituted as plaintiff in the place of the executors, who was authorized to appoint an attorney to represent him in the conduct of the litigations. Such result was produced by the alleged misconduct as well as insolvency of the exeeu tors, and of the misconduct of Martin in respect to the estate, and the application of the moneys received by him in the course of the litigation (see opinion of FeeedmAN, J., Ooolce v. Platt). These various proceedings have subjected the estate to large and unnecessary charges, delays and expenses.

It is quite true that after the substitution of Mr. Smith as receiver, in the place of the executors, Mr. Martin did render services as counsel upon the special employment of the receiver, and for such services he has been compensated by the receiver, but the legal proceedings, since the substitution of the receiver, have been conducted by Mr. Allan, the attorney selected by him, who has interposed a large claim for legal services, rendered by him in the actions and proceedings.

Had Mr. Martin been superseded or been prevented from rendering professional services in the action for causes, for which he was in no degree responsible, the case might be different; but, unfortunately for him, the proceedings and judgments of the superior court are wholly inconsistent with such conclusion.

A party to a contract, claiming to have it decreed to be specifically performed, must in good faith and truly perform all the obligations imposed upon him by the terms of the contract,' and a failure on his part in any material point is of itself a sufficient ground for withholding equitable relief.

Agreements of the nature of the one we are now considering, between an attorney and his clients, were at one time disfavored by statute and the judgments of the courts. Now, if they are understaudingly and fairly made, they will be upheld. A late decision on this subject is Fowler against Callan, in the court of appeals. Fowler v. Callan, 102, N. Y., 395. 1 N. Y., State R., 1.

But they never will be decreed to be specifically performed, in the way herein demanded, if the attorney has failed to discharge the obligations which he has assumed.

An attorney should be held to a strict performance of his duties and obligations to a client- under agreements of this nature.

If the attorney in this case was justified in asking for and receiving so large a sum of money, during the progress of the litigations, for counsel fees and expenses incident to their prosecution, as Martin received from the subject of this litigation, how could the agreement, by which he was to receive one-half of the final recovery, be regarded in any other light than an improvident arrangement, and, as such, beyond the powers of the executors to make, and which shall not be upheld ?

If he was not entitled to receive this money, as he clearly was not under the agreement and the evidence, then the agreement as a measure of compensation must have been practically regarded as abandoned by the parties.

The effect of this conclusion is not at all weakened, in my judgment, by the fact that Martin procured from the executors in 1876 a consent, that all moneys which had been received by him from the Union Trust Company, the receiver in the action, should be applied by him to the payment of counsel fees and expenses of the suit. The needs of these executors were great and pressing, and, according to their statements, they signed as executors any papers Martin presented to them for execution.

The position of their attorney in the litigation, at its then stage, and his intimate relations with them, enabled him to exercise much influence over them, and in this instance, according to the papers, it was exercised adversely to their rights under the contract, and was efficient to obtain their acquiescence in a measure, which as executors they had no right or power to give.

They could not agree that such large sums of money, as had been obtained by Martin from the receiver in and previous to 1876, should be held by him for purposes so general and indefinite, as “ counsel fees ” and “ expenses ” of the litigation, when by the contract he was himself bound to advance and pay them.

Besides Martin did not so apply these moneys. Emmett and Tracy, the counsel engaged, were obliged to wait for their pay for many years thereafter and were in the end paid by the receiver with the funds of the devisees.

Besides all .this, subsequent to his displacement as attorney, Martin did not perform what was required of him under the contract. He did not, and could not, render that skill and serv- • ice to winch he was obligated, and upon which, as the contract alleged, the amount of the recovery so much depended, and it was left to other attorneys and counsel to complete the work which in the end secured the fruits of the litigation.

In fact it was argued before me, on behalf of the plaintiff, that because Mr. Martin had lost the control and management of the litigation, and the advice of other counsel had prevailed with the receiver, the substituted plaintiff, in the principal action, as to the way in which the case should be presented to the court of appeals, upon the final argument, when the exceptions to the referee’s report were under consideration in that court, the recovery was in the end less than it should have been by several hundred thousand dollars. Whether or not that be so, it is not really necessary here' to decide; but it seems clear that Martin’s failure to manage and conduct to its final close the litigation in all its branches, as he was required to do by the contract, deprives the present plaintiff of the remedy he seeks in this action. And upon that ground as well as the others above mentioned, the plaintiff’s complaint must be dismissed with costs.


source: Caselaw Access Project

author: Kennedy, J.

license: Public Domain

text:
    Andrew J. Fargo and Curtis A. Fargo, v. Louisa A. Hamlin.

      (Supreme Court, Special Term, Onondaga County,

      Filed October, 1886.)
    1. Mechanic’s lien — Offer of judgment.
    After the commencement of proceedings to foreclose a mechanic’s lien, filed upon the premises of the defendant, the latter served upon the plaintiffs attorney an offer allowing property to he taken for $200 less the claim of W. J. G. against the plaintiff, and for which W. J. G. has filed a lien upon the premises of the defendant, with costs. The trial court found the existence of both liens, the plaintiffs for $195.36, that of W. J. G. for $ 128.07 and directed that the premises he sold, and the amount of W. J. G’s lien paid out of the first money realized on the sale, and the amount so paid he deducted from the plaintiffs’ lien, and that they he paid only the remainder thereof. Held, that assuming an offer of judgment can be made in these proceedings, the judgment rendered was more favorable to the plaintiff than that offered, and that the offer therefore did not relieve the defendant from liability for costs accruing subsequent to it.
    2. Same — Costs — Laws 1885, cn. 342.
    The question of costs incident upon the determination of such an action is not any part of the proceedings to enforce the lien, and the provision of Laws of 1885, ch. 342. “ This act shall not be so construed as to affect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce sucli lien now pending by virtue of any provisions of the act hereby repealed ” — does not govern it; the right to costs was not determined until the end was reached, and then only as a sequence.
    3. Same — Taxation op costs — Whew set aside.
    When costs are in the discretion of the court, none having been allowed by judgment, none can be taxed, and a taxation by the clerk allowing costs to a party will be set aside.
    MOTION by defendant among other things to set aside the taxation of costs in favor of the plaintiff by the clerk of Onondaga county on the ground that they were not entitled to costs because their allowance was in the discretion of the court, and they were not allowed upon the determination of the action. The defendant also asks if costs are allowed the plaintiff, that they should be limited to those which had accrued prior to the time the defendant served an offer for judgment iñ their favor upon the plaintiff.

      Knapp, Nottingham and Andrews, for defendant; Edwin S. Butterfield, for the plaintiff.
   Kennedy, J.

After commencement of proceedings to foreclose the lien filed by the plaintiff, the defendant, as the owner of the premises, served upon the plaintiff’s attorney an offer of judgment in the following form: “ The defendant, Louisa A. Hamlin, hereby offers to allow judgment to be taken against her in the action or proceeding for the sum of $200 less the claim of William J. Gillett, against Andrew J. Fargo and Curtis A. Fargo for lumber furnished them, and for which said William J. Gillett has filed a lien against the premises of the said Louisa A. Hamlin, with costs.”

It appeared upon the trial that Gillett, during the erection of the house by the plaintiffs, furnished to them a quantity of lumber which was used in its construction, and for which the plaintiffs were indebted to him. They included this lumber in the amount of their claim filed, and Gillett also filed a claim in his own name for the same.

The court before whom the trial was had, found the existence of both liens, that of the plaintiffs with interest amounting to $195.86, that of Gillett with interest $128.07, and directed that the premises be sold, and the amount of Gillett’s lien be paid out of the first money realized on the sale ; and that the amount so paid be deducted from the amount of the plaintiff’s lien, to wit, said $195.86, and that they be paid only the remainder thereof.

This judgment was more favorable to the plaintiffs than that contained in the offer in this: the offer was to allow the plaintiffs to take judgment for $200 less Gillett’s claim, thereby discharging theff lien to the extent of such claim, but leaving them still indebted to Gillett for the amount of his bill. The judgment orderea protects tbe plaintiffs’ lien in full, but provides that out of the proceeds on sale the amount of their indebtedness to .Gillett shall be first paid, thereby discharging that indebtedness out of the property of the owner.

The defendant, therefore, by the offer assuming that the same can be properly made in these proceedings, did not relieve herself from liability for costs accruing subsequent to the time the same was made.

The proceedings of the plaintiffs to foreclose their lien was a proceeding in equity. The court in the decision of the case did not award costs to either party. The contention by the defendant is that costs were wholly in the discretion of the court, and they, not having been adjudged to the plaintiffs, cannot be taxed in their favor. On the other hand, the plaintiffs insist that by the Laws of 1864, chap. 366, being a special act to secure mechanics in the County of Onondaga (the premises in quesiion being situated in the city of Syracuse, in said county,) costs followed the recovery, and that they are in no manner discretionary.

The Act referred to is entitled “ An Act for the better security of mechanics and others erecting buildings and furnishing materials therefor, in the County of Onondaga.” And so far as the question here involved provides: That upon the foreclosure of any such lien, if the amount of the claim established be fifty dollars or over, the plaintiff shall recover his costs and disbursements according to the same rates as in suits for the foreclosure of mortgages. (Sec. 3.)

The Act further provides for the foreclosure of the lien in the general manner now provided by the General Lien Law of the State. (Sec. 4.)

The general lien law provides that a lien may be foreclosed by an action if the amount be over fifty dollars, which shall be commenced by the service of a notice containing a statement of facts constituting the claim, etc. It then provides how an issue is to be made and tried. Chap. 402 of the Laws of 1854, Sec. 6.

The proceedings in this case were commenced by the service of a notice by the lienors as provided in the general Act.

In 1880, Chap. 486 of the laws of that year was passed an act entitled “ An Act to secure the payment of mechanics, laborers and workmen who perform work, also persons furnishing materials towards the erection, altering or repairing buildings, wharves and other structures in the cities of the State of New York.”

The Act provides for the filing of claims and the creation of liens in the several cities of the State, and for their enforcement, which shall be by civil action, commenced in any court of record in said city having equitable jurisdiction, etc. The action shall be commenced, carried on and judgment entered and enforced as provided in action to foreclose a mortgage in the Code of Civil Procedure; and that costs for or against the parties litigant shall be in the discretion of. the court. It does not repeal any other act;

By chap. 342 of the Laws of 1885, which took effect May 27th, 1885, both the foregoing acts, together with the General Lien Law, were repealed. By this Act proceedings to foreclose are by actions commenced by summons, and costs are in the discretion of the court. Secs. 9 and 11. A saving clause in See. 28 provides that the' act shall not be so construed as to effect, enlarge, invalidate or defeat any lien or right to a lien now (then) existing, or any proceeding to enforce such lien now pending by virtue of any of the provisions of the Acts hereby repealed.

This action was tried on the 10th day of February, 1886, and after the Act of 1885, became effective.

The question of costs is, unless otherwise provided, to be determined by the law as it exists at the time the right or claimed right-to them accrued. In Smith v. Castlers, 5 Wend. 81, under a saving clause in a statute passed subsequent to the commencement of the action, and which changed the rule in relation to costs, reading as follows : “ All rights accrued or established are saved from its operation.” It was held that the new Statute controlled the question of costs, because the right to them did not accrue until after the statute had gone .into operation. In Baker v. Bartlett, 9 Wend., 493, the action being one to recover a penalty, and when it was commenced no costs was allowed to the prevailing party during its pendency, the statute was changed so as to give costs. The saving clause in the new law was : “ But actions already commenced shall proceed in all respects as if the law giving the penalty had not been repealed.”

It was held that the question of costs was governed by the repealed statute, and that neither party could recover costs.

In the Statute of 1885 the saving clause relating to actions and proceedings is : “ This Act shall not be so construed as to effect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceedings to enforce such lien now pending by virtue of any of the provisions of the acts hereby repealed.”

Can it be said that the question of costs incident upon the determination of the action is any part of the proceedings to enforce a lien? I think not. The proceedings to enforce the lien under the statute as it stood when the action was commenced, as they might result, determine the question of the parties’ right to costs. That was simply an incident depending upon the result, and the right was not determined, nor did it exist until the end was reached, and then only as a sequence.

In my judgment at the time the right to costs, if any, accrued in this proceeding the same were in the discretion of the court, and none having been awarded to the plaintiff, none can be allowed or taxed.

An order will be entered setting aside the taxation upon the ground that the plaintiffs are not entitled to costs, under the decision, but without costs of this motion.

It is claimed by the plaintiffs that the court has, since the decision, signified its intent to allow them costs. If this is so they ' perhaps have a remedy by application to correct the direction for judgment, so that the same shall conform to the purpose of the court in this regard, and the order to be entered will provide that it be without prejudice to any future action.


text:
    Philander H. Lewis, v. Florence Joiner, Impl’d.

      (Supreme Court, Special Term, Onondaga County,

      Filed October, 1886.)
    1. Bilí, of pabticulabs. — Code Civ. Peo. § 531.
    The power of the court to order bills of particulars extends to all description of actions when justice demands that a party should be apprised of tlie matter for which he is put on trial with more particularity than is required by the rules of pleading, nor is the power confined to an exercise of it in behalf of the defendant in an action; the court may. order a bill of particulars to be given by the defendant.
    2. Same — Paetitiox — Bill of paeticulaes bt a dependant.
    Where in an action for the partition of real estate a party was made a defendant as being in possession of the property having entered under a deceased former owner, and by answer she claimed an estate in fee in the property, her title not appearing upon the record and the plaintiff having no knowledge or information as to the source of, or the manner in which the defendant acquired, or claimed to have acquired title of the premises, the defendant was ordered to give a bill of particulars.
    Action by tbe heirs-at-law of one Alexander Lewis, lately deceased, for the partition of certain real estate, of which, in the complaint, it is alleged he died, seized and possessed.
    The defendant, Florence Joiner, is made defendant, not as an heir-at-law, or the owner of the premises or any part thereof, but simply as party in possession, having entered under the deceased in his lifetime.
    The defendant, in her answer, sets up by general averment, that she and one Eardly S. Lewis were, and are the owners in fee simple of the lands described in the complaint, and at the time of the commencement of the action they were in the quiet and peaceable possession, claiming title adverse to the plaintiff and the remaining defendants.
    That said Florence Joiner also avers that at the time of the commencement of the action, she was and still is the owner in fee and in possession of seventy-five acres of the land described in the complaint, particularly describing the same.
    Upon an affidavit showing that by the records in the Tompkins county clerk’s office, said lands being situate in that county, it appears that the legal title to all said lands and premises was in the decedent at the time of his death, and that the plaintiff has no knowledge or information as to the source of or the manner in which the defendant acquired or claims to have acquired title to any part of said premises, and that the heirs-at-law are unable by reason thereof to prepare for the trial of the action upon this issue, the plaintiff asks for an order requiring the said defendant to serve on his attorney a bill of particulars of such title.

      Almy $ Bouton, for plaintiff; B. II Buell, for defendant.
   Kennedy, J.

By section 531 of the Code of Civil Procedure the court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party.

This provision is an affirmance of a rule of practice long settled, to the effect, that when it- was made to appear to the court that by reason of a want of knowledge sufficient to enable a party to prepare for the trial of an issue tendered by his adversary in the pleading, it would order a sufficient statement of the claim so made to obviate the difficulty, and thus save the contestant from surprise on the trial or because of that, to prevent the necessity of a new trial. Thus, in case of Saunders v. Duke of Newcastle, 7 Durnford & East, 382; in an action of ejectment, on the application of the defendant the court made an order that the plaintiff should specify the particulars of the claim of title made by him within four days, and the defendant within four days thereafter should specify the particulars for which he defended. In Dwight v. Germania Life Insurance Company, 84 N. Y., 502, the court say, “ Unless changed by the statute law the power of the supreme court to order bills of particulars is not confined to action upon demands for money made up of different items. It extends to all description of actions when justice demands that a party should be apprised of the matter for which he is to be put upon trial with more particularity than is required by the rules of pleading, citing Tilton v. Beecher, 59 N. Y., 176. Nor is this power confined to an exercise of it in behalf of the defendant in an action, in favor of the plaintiff as well the court may order the defendant to give the particulars of the facts which he expects to prove,” citing many cases for different causes of action and defenses where the rule has been applied.

In the case in hand the action is brought by the heirs-at-law, resting their rights upon the documentary evidence which the records of the proper county furnishes, showing the title in the decedent at the time of his death. Beyond the evidence thus furnished, it cannot be supposed that they are in possession of facts resting in parol or unrecorded papers in the custody of tbeir adversary; and upon tbe trial, in ignorance of the defendant’s source of title, the plaintiff cannot be assumed as prepared to meet the evidence tending to show title out of the decedent. If this title rests in parol, the plaintiff being unapprised of the ground, must of necessity go to trial unprepared to meet it; if meet it he can, if upon unrecorded deed or writing he will be equally wanting in preparation, and after the defendant’s case has been disclosed in order that justice may be done, the court would be obliged on the plaintiff’s application to suspend the trial by the withdrawal of a juror or in some other manner to enable him to properly defend his rights.

No good reason can be assigned why the defendant should not be required to disclose her case before the trial to an extent sufficient to enable the plaintiff to prepare ; thus placing him exactly where he would after such disclosure upon the trial.

The rights of the plaintiff therefore demand that the information sought by this motion should be furnished by the defendant.

The order hereto attached will be entered.


author: Kennedy, Jr

text:
    Matter of the petition of Prosper D. Mumford, Adm’r, etc., of Matilda Winsor, et. al.

      (Supreme Court, Special Term, Onondaga County,

      Filed October, 1886.)
    1. ASSIGNMENT FOR THE BENEFIT OF CREDITORS — ASSIGNEE — LAWS OF 1877, CH. 466 §§ 20, 25.
    The testator of M., one of the petitioners, died leaving personal estate, consisting of .bonds and promissory notes. Upon the appointment of M. as administrator, he deposited the said bonds and notes with D. and S., parties who became sureties on his bond to indemnify them against any loss they might sustain thereby. Subsequently and without thq knowledge or consent of M., D. and S. and their firm appropriated the said bonds or their proceeds to pay debts of the firm. At the time D. S. & Co. received the money they were insolvent, and D. and S. were aware of it, and made a general assignment to B. for the benefit of creditors. The notes deposited were surrendered to M. upon demand. The petitioner M. and the heirs at. law of the testator pray that the amount of said bonds may be paid by the assignee from the funds in his hands to said M. as administrator. Held, that while the assignee is not strictly an officer of the court, he is nevertheless subject in all matters relating to the assigned estate to the order and-direction of the court or a judge thereof.
    2. Same — Trust funds — Improperly diverted may be followed.

      Held, also that a trust fund improperly diverted may be followed into the hands of any one who may receive it except in good faith, and be claimed by the beneficiary; he may also follow and return to the estate the proceeds so long as the same can be traced, the trust character being imposed on them as well as the original estate. •
    3. Same — Become lien on the property of the person diverting them.
    Where a holder has trust funds in custody for a lawful purpose in harmony with the proper execution of the trust, and shall unlawfully appropriate the same to his own use and benefit, and thereby enhance the amount and value of his estate, the amount of the trust estate becomes an equitable lien upon the entire estate of the wrong doer, which may be enforced against any one holding such estate except he be a bona fide purchaser or transferee thereof.

      4. Samé — Lien on funes in the hands of the assignee.
    The fund in the hands of D. S. & Co. was a trust estate held by that firm, by its unlawful appropriation the assets of the firm in the hands of the assignee were increased to the extent of the fund. Although by the payment of the debts of the partnership no part of the money or securities composing the trust estate came into the possession of the assignee, the whole estate passing to him was charged with an equitable lien in behalf of the beneficiaries for the trust estate wrongfully converted by the assignors.
    The petitioners, Prosper D. Mumford, as administrator, etc., of tbe estate of Matilda Winsor, and several other heirs-at-law, of said Matilda, presented their petition and asked for ah order directing Charles Gr. Baldwin, as general assignee of Dow, Short & Company, to pay certain moneys alleged to have been held by said assignors in trust for said petitioners out of the assigned estate before the creditors are paid, etc.

      George Doheny, for petitioners; W. M. Ross, for assignors.
   Kennedy, Jr

On or about the 11th day of June, 1885, Matilda Winsor died intestate, at the city of Syracuse, leaving her surviving the several petitioners her heirs-at-law, and leaving-personal estate, consisting among'other things of five bonds, issued by the city of Oswego, of $500 each, bearing interest; cash in the First National Bank of Syracuse, $741.67, for which she held a certificate of .deposit, together with certain promissory notes.

On the 7th day of December, 1885, the petitioner, Prosper D. Mumford, was duly appointed administrator of the goods, chattels and effects of said decedent by the surrogate of the county of Onqndaga, and he accepted the trust. At the time he was so appointed he held the said bonds, ■ certificate of deposit and notes in trust for the said heirs-at-law, they or their proceeds to be divided between them, upon the final settlement of the estate. ' ,

In order to secure Dow, Short & Co., for signing his bond as administrator, he placed in' their hands, they at that time being individual bankers, doing business at the city of Syracuse, the said city bonds, certificate and notes in performance of an agreement entered into between them to the effect that if Hezikiah F. Dow and Henry W. Short, two of the members of the firm or partnership of Dow, Short & Co., would sign his bond, as sureties, as such administrator, he, said Mumford, would place in their said banking house said city bonds, certificate and notes to be held by them as security for any liability they might incur by reason thereof, and for a division of the same among said heirs-at-law, and for no other purpose, and that they as compensation should receive one half of the fees he, Mumford, would become entitled to as such administrator.

On or prior to December 22d, 1885, the said firm'of Dow, Short & Co., without the knowledge or consent of the said Mumford, appropriated the said bonds or tbeir proceeds, together with the money received by them on said certificate, to pay debts owing by the firm to the Robert Gere Bank and the Market National Bank of New York.

At the time said Dow, Short & Co., received said money, it was insolvent, and the said Dow and Short knew that fact, and immediately thereafter made a general assignment for the benefit of their creditors, to Charles G. Baldwin, of Syracuse.

The Mumford notes were received by Baldwin as assignee and upon demand were by him surrendered and delivered up to him, Mumford. The Oswego city bonds or the proceeds of them or the money collected on the certificate did not nor did any part thereof come into the possession of Baldwin, as assignee.

Out of the assets which were received by him the assignee has collected the sum of $84,128.16, and he has disbursed in execution of the trust in dividends paid to creditors, etc., $28,827.-27, leaving in his hands at the present time $5,800.88.

The petitioners now ask an order of this court that said assignee out of said sum pay to the petitioners or to said Mumford as administrator, the amount received by Dow, Short & Co., for said city bonds and the money collected on the certificate of deposit, which the referee to whom the question was referred found to be principal $3,394.41, interest $169.72; total $3,564.-13; upon the ground that the same was a trust fund held in trust by Dow, Short & Co., for the petitioners, and that the estate was secured by the assignee cumbered with an equitable lien thereon therefor.

I had doubts upon the argument whether the property of the assignors, Dow, Short & Co., in the hands of the assignee, being a trustee of their own selection, and not an officer of the court, could be regarded as in custodia legis, so as to give this court power to determine the question presented by the petitioners in this summary manner. The counsel for the assignee concedes the jurisdiction of the court in this proceeding. It may be questionable if this will confer it, if in fact the same does not exist. While the assignee is not strictly an officer of the court, he is nevertheless subject in all matters relating to the assigned estate to the order and direction of the court or a judge thereof. (Secs. 20 and 25 of chap. 466 of Laws of 1877. The general tenor and entire scope of the insolvent law tends to this conclusion. Chap. 380, of Laws 1885.) I am therefore disposed to hold that for the purpose of this application this court has jurisdiction and may upon this application dispose of this question.

The principle is elementary that a trust fund improperly diverted may be followed into the hands of any one who shall receive it, except in good faith and bona fide and reclaimed by the beneficiare he may also follow, and return to the estate the proceeds, so long as tbe same can be traced; tbe trnst character being imposed upon them as well as the original estate.

Another principle is recognized as attaching to a trust estate in favor of the beneficiary, and that is where the holder haying the same in custody for a lawful purpose, in harmony with the proper execution of the trust, shall unlawfully appropriate the same to his own use and benefit, and he thereby enhances the amount and value of his estate, the amount of the trust estate thus converted becomes an equitable lien upon the entire estate of the wrong doer valid, and which may be enforced against anyone holding such estate, except he be a bona fide purchaser or transferee thereof. People v. Bank of Dansville, 39 Hun, 187; McColl v. Fraser, 40 Hun, 111.

The fund in question in the hands of Dow, Short & Co., was ¡a trust estate held by that firm by its unlawful appropriation the property and assets of the firm; was enhanced to that amount, and the estate in the hands of the assignee was increased to that extent. By the payment of the debts and the discharge of the liabilities of the partnership and although no part of the money or securities comprising the trust estate came into the possession of the assignee, the entire estate passing to him was charged with an equitable lien in behalf of the beneficiaries, for the trust estate thus wrongfully converted by his assignors, and he received the same burdened with such lien.

If right in the above conclusions, it follows that the petitioners are entitled to be paid out of the estate of the wrong doers in the hands of the assignee, the amount of the money or property misappropriated, and converted before the payment of the general creditors of the assignors.

An order will therefore be entered requiring Charles G. Baldwin, the assignee of Dow, Short & Co., to pay to Prosper D. Mumford, as administrator of the estate of Matilda Windsor, deceased, the sum of $3,564.13, being the amount of the trust estate converted by Dow, Short & Co., with $10 costs of this motion, together with the disbursements out of any money or property in his custody as assignee and received by him as such from said Dow, Short & Co.


author: Barrett, J.

text:
    William E. Wamsley v. George H. Palmer et al.

      (Supreme Court, New York Circuit,

      Filed Nov. 23, 1886).
    MANUFACTURING CORPORATION — LIABILITY OF TRUSTEES FOR FAILURE TO MAKE AND FILE ANNUAL REPORT UNDER MANUFACTURING ACT OF 1848.
    The fact that the trustees make a report in a year subsequent to the default, does not revive their liability, it is simply evidence that they consider themselves as continuing in office.
    Where a mining company practically abandoned its business, and all its property had been sold at sheriff’s sale, the subsequent failure of the trustees to make and file an annual report does not make them therefore individually liable to a creditor of the Company. And this is so even though the sheriff’s deeds were defective and did not de jure convey the title to the property out of the Company.
    In 1879, Tbe Sir Roderick Dbu Gold Mining Company was organized nnder the laws of the State of New York, (Laws 1848, chap. 40,) as a mining company; carrying on business and having all of its mining machinery at Deadwood, Dakota. On May 6th, 1880, an annual meeting was held at which the defendants and others were elected trustees for the ensuing year.
    In September, 1880, judgment was entered against the company and execution issued. The whole property of the company essential to the conduct of its business as a mining company, was thereupon sold and the company ceased to do business.
    One Bogle claimed to have rendered services to the company, in 1881 and in 1882, as custodian of certain buildings and tools at Deadwood. Certain of the trustees elected in 1880 made and filed annual reports in the office of the New York county clerk, in the years 1881, 1882 and in 1884; they failed, however, to file a report in 1883.
    Upon that failure, the assignee of Bogle’s claim brought suit against the directors who held over, on a quantum meruit for services rendered.
    Defendants’ counsel moved to direct a verdict for the defendants on the ground that at the time of the default the company was practically defunct, and that there was therefore no necessity to make the report.

      Alexander S. Bacon, for plaintiff; Baton Lewis, Thomas S. Moore and W. B. Bornhlower, for defendants.
   Barrett, J.

As the undisputed evidence shows that all of the property of the company essential to the conduct of the business for which it was organized, was sold under execution upon judgments recovered against it in Dakota, and as the company has since that date had no property with which to conduct the business for which it was organized, and has not attempted to conduct any such business, but has substantially abandoned the business of mining, I am of opinion that the trustees of the company are not liable for failure to file the annual certificate which the law ordinarily requires while the company- remained in that practically defunct condition.

The facts of this case, in my judgment, are Avithin the principles laid down in Bruce v. Platt, 80 N. Y., 379. That is, that the company, though retaining its franchise, was practically dead. This is clearly so, provided all the property of the company passed under the deeds given by the sheriff under the executions upon which he sold. If, however, the contention of the plaintiff be correct, that certain personal property which was actually delivered to the. grantees in the sheriff’s deed did not, according to the law of Dakota, pass de jure to these grantees but remained in law the property of the company, yet as the company has not acted upon any such legal right, has taken no steps to recover back that property, and as the status which resulted from its delivery under the deeds has continued, ever since, I cannot see how the situation (so far as the duty of the trustees to file a certificate is concerned) has changed. - But, further, the personal property in question, even if, it had not been delivered to the grantees in the sheriff’s deed, but had been retained by the company, would not have enabled the company to do any of the corporate acts for which it was organized. It would simply leave in its defunct hands .a quantity of movable property having no special relation to mining, I am, therefore, of opinion that the company was practically dead, whether that personal prop'erty is to be treated as passing under the deeds to McGinnis Bros, and Fearing, or not. I have not overlooked the fact that the trustees did file a certificate in the years 1881, 1882 and 1884, and that the fact of filing those certificates is claimed to be a corporate act. It is conceded that such filing was a corporate act, but it was not such a corporate act as takes the case out of the principle laid -doAvn in Bruce v. Platt. In other words, it is not a corporate act in the direction of the transaction of the business for which the- company was organized. It is not a corporate act affecting the practical fact of the abandonment of that business; and it would be absurd to say that because the trustees performed that technically corporate act at one time they thereby revived the company’s life, -and rendered themselves liable to the statutory penalty for not performing a similar act at a future time. I may say, however, that these views proceed, upon the- theory that the defendants were, in the eye of the law, holding over as trustees during the year 1883. It is . true that after the expiration, of a trustee’s term of office there is no presumption that he so holds over. He must do some overt act indicating a willingness to accept the functions of a hold-over. In my judgment, the filing of a certificate in 1884 by these trustees, was a recognition of the fact that they were hold-over trustees and that they had in the interim assumed the duties which the law imposed upon those who chose to bold ouer, and .that thus they were in the position of trustees liable to, and bound to make a proper certificate, if the other facts in the case had imposed that obligation upon them. I thus, in dismissing the complaint, do so upon the theory, that although lawful trustees, they were not bound, owing to the defunct condition of the company, and the entire abandonment of the company to make and file any certificate during the year 1883.

The fact that after the company became practically defunct, it did not only file these reports, but also defended an action which was brought against it in Dakota, and continued that action down to the year 1883, is pressed upon my attention as an additional corporate act, which the plaintiff claims amounts to a recognition by these trustees of the continued existence of this company; and it is also claimed that the defence of that action in connection with the filing of these reports, neutralizes the claim that the company was practically defunct, and had abandoned the transaction of business. I am, however, of the opinion that the permission of the company to its attorneys, after it had ceased business, and after it had abandoned mining, and after its property had been swept away, to defend that action, and to see to it that the damages recovered against the company should be as small as possible, is not to be treated as a corporate act, reviving the fife of the company and requiring the filing of future certificates. I am, therefore, of the opinion that none of the acts, whether the filing of those certificates or the defence of this action, has any legal effect upon the only material and important fact, namely that the property of the company was actually swept out of existence, and that it did abandon the business for which it was organized, and that it necessarily did so, from the fact that it had no material with which to continue such business.

For these reasons, I feel constrained to direct a verdict for the defendants.


author: Andrews, J.

text:
    Nassau Bank, Plff.; Ritzinger, et al., Defts.

      (Supreme Court, Special Term, New 'York County,

      Filed December 30, 1886).
    1. Practice — Interpleader — When action can be maintained.
    An action of interpleader can be maintained in those cases only where there is a serious doubt as to the question involved.
    2. Same — When cannot be maintained.
    An action of interpleader cannot be maintained where the assignee and attaching creditors do not claim the same debt or dirty from the plaintiff ; nor in a voluntary assignment where it is clear that as against the attaching creditors, the assignee has good title to the money, etc., in the hands of the plaintiff.

      Martin Smith, for plff.; Barlow &; Wetmore, for deft.
   Andrews, J.

I am of the opinion tbat tbe plaintiff is not entitled to a judgment tbat tbe defendants interplead, for tbe following reasons:

First. An action of interpleader can be maintained in those eases only where there is a serious doubt as to the question involved.

Second. The assignment made by tbe Kitzingers was not a statutory, but a voluntary one; and, upon the authorities, it seems to be clear that, as against the attaching creditors, the assignee (Yandes) has a good title to the money and other securities in the hands of the' plaintiff. Hoyt v. Thompson, 5 N. Y., 353; Kelstadt v. Reilly, 55 How. Pr., 373; Guillander v. Howell, 35 N. Y., 659; Kelly v. Crapo, 45 N. Y., 86; Willetts v. Waite, 25 N. Y., 584.

Under the decisions, the claim made in the answer of the Mutual Life Ins. Co., that the draft in its favor was pro tanto an assignment of the fund, is not well founded. Chapman v. White, 6 N. Y., 412; Duncan v. Berlin, 60 N. Y., 153; Attorney General v. Cont. Ins. Co., 71 N. Y., 331. And in view of the decision in Thurber v. Blanck, 50 N. Y., 80, I do not see how the allegation of said answer that the assignment is fraudulent can be sustained.

Third. The assignee and the attaching creditors do not claim the same debt or duty from the plaintiff.

The cash balance in the plaintiff’s hands is $5,856.03, and it also holds certain notes, and 230 shares of insurance stock of the par value of $50 a share, and, as is claimed, of the actual value of at least $5,750; and the assignee claims these securities as well as all the money.

On November 20,1886, the entire amount of the claims of the attaching creditors, with interest, costs and fees, amounted to only $5,370.41.

It has been repeatedly held that under such circumstances an action of interpleader cannot be maintained. Wait’s Actions and Defenses, vol. 4, p. 153, and cases cited. While I think it may well be doubted whether the doctrine established by the cases is entirely just and fair, I am unable to see why it is not applicable to the present case, although the sheriff, on behalf of the attaching creditors, has brought an action in which he seeks to recover the securities above mentioned as well as the money which the plaintiff holds.

The complaint must be dismissed, with costs to the defendant Yandes. Findings may be settled- on two days’ notice.


author: Lawrence, J.

text:
    People ex rel. Gerry and Goelet v. The Tax Commissioners of the City of New York, Defts.

      (Supreme Court, Special Term, New York County,

      Filed December 13, 1886.)
    1. Taxes and assessment — Review op assessments — Laws 1880, Chap. 269 — Meaning op “boll” in said law.
    The word “roll,” as used in chapter269, Laws 1880, means the entire roll of the ward in which relator’s property is situated.
    2. Same — Rule as to when valuation will be beduced.
    The party injured by the assessor’s errors, committed without fraud or malice, has in general only such remedy as the statute may afford him. And in no proceeding is one to be heard who complains of a valuation which, however erroneous it may be, charges him only with a just proportion of the tax. If his own assessment is not out of proportion as compared with valuations generally on the same roll, it is immaterial that some one neighbor is assessed too little and another too much.
    Certiorari proceedings were brought under chapter 269 of the Laws of 1880, to review assessments for purposes of taxation in the years 1882 and 1883, on certain premises in the City of New-York, situated in East Forty-sixth and East Forty-seventh streets (Windsor Hotel block), and in the Bowery.
    The lots in the Windsor Hotel block were assessed in each year at $17,000, and the Bowery property at $12,000. The relators claimed a reduction in each instance on the ground that the assessment was unequal in that it had been made “ at a higher proportionate valuation than other real property on the same roll by the same officers.”
    A reference was had under the statute and testimony taken as to the value of the several lots in the Windsor Hotel block, and as to the value of the Bowery property and the two or three lots immediately adjoining. No evidence was given as to the average rate of assessed, to market value of real estate which prevailed in either of the wards where the relators’ property was located. But testimony was produced tending to show that in the three or four blocks between Fifth and Madison avenues and Forty-second and Forty-seventh streets, the lots on the side streets appreciate in value $500 per lot the nearer they are to Fifth avenue, and the relators claimed that an equal valuation upon each of their lots in the Windsor Hotel block caused an unequal assessment. The respondents offered evidence to show that the rule as to appreciation in value, stated above, did not apply to the particular block in question.
   Lawrence, J.

In these cases I deem it sufficient to say that I fail to discover, upon the evidence, that the Deputy Tax Commissioners have overvalued the relators’ property under the statutes relating to taxation. Chapter 269 of the Laws of 1880 evidently contemplates that before the court orders a reassessment, or correction of the assessment, it must be made ot appear that such reassessment is necessary to make it conform to the valuations and assessments, applied to other real and personal property in the same “ roll ” and seciire equality of assessment. I think that the respondents are right in contending that the word “ roll ” as used in the statute means the entire assessment roll of the ward in which the relators’ property is situated.

In these cases there is nothing before the court which shows, or tends to show, that the relators’ property has been assessed at a rate beyond that which was applied to property generally in the same ward. The passage quoted by the learned counsel to the corporation from “ Cooley on Taxation ” seems to be peculiarly in point. At page 410, 2d edition, the learned author says : “ The party injured by their (the assessors) errors, committed without fraud or malice, has in general only such remedy as the statute may afford him. And in no proceeding is one to be' heard who complains of a valuation which, however erroneous it may be, charges him only with a just proportion .of the tax. If his own assessment is not out of proportion, as compared with valuations generally on the same roll, it is immaterial that some one neighbor is assessed too little and another too much.”

Assuming the rule which should govern in these' cases to be as stated by Judge Cooley, there is an end of relators’ case; but without resting upon that rule alone, I think that the writs in these cases should be dismissed, with costs, for the reason that the Deputy Tax Commissioners, Wagner and Connelly, showed very clearly by their testimony that they were justified in assessing the property at the amounts stated in the assessment roll.

It is not alleged that the Deputy Tax Commissioners were guilty of any fraud or intentional partiality in making their .valuations ; and as I cannot see that the relators have been assessed at a greater rate than the generality of property owners in the wards mentioned in the writs, I do not think that they are aggrieved or that the court ought to interfere with the judgment of the Deputy Tax Commissioners.


text:
    People ex rel. Edward H. Harriman et al., Plffs., v. John Paton et al., Defts.

      Supreme Court — Chambers — New York County,

      Filed January 13, 1887.)
    1. CORPORATIONS — Foreign CORPORATIONS — RIGHT OP STOCKHOLDERS TO ACCESS TO TRANSFER BOOKS — LAWS 1842, CHAP. 165.
    Under chapter 165, Laws of 1842, it is the absolute duty of the transfer agent in this State of any moneyed or other corporation existing beyond the jurisdiction of the State, to exhibit at all reasonable times during the usual business hours, to the stockholders when required, the transfer book and a list of the stockholders, if in his power so to do. The transfer agent has no right to inquire into the motives and purposes of the stockholder so inquiring. (People ex rel. Hatch v. L. S. & M. S. li. 11- Co., 11 Hun, 1, distinguished.)

    2. Practice — Affidavits — Effect of denials upon want of information IN AFFIDAVITS.
    Positive allegations in moving affidavits are not put in issue by denials upon or want of information in answering affidavits.
    3. Same — Mandamus — When peremptory writ granted in first instance.
    Where the substantial allegations in the moving affidavits are not fully met or avoided in the answering affidavits, a peremptory writ should be granted in the first instance.
    Motioít on behalf of stockholder for peremptory writ of mandamus to compel the production of the stock books for inspection.

      Seward Da Gosta Guthrie, for relators ; John E. Parsons, for def’ts.
   Lawrence, J.

Under chapter 165 of the Laws of 1842, it is the absolute duty of a transfer agent, in this State, of any moneyed or other corporation existing beyond the jurisdiction of the State, 'to exhibit at all reasonable times during the usual business hours, to the stockholders, when required, the • transfer book and a list of the stockholders, if in his power so to do. (Kennedy v. Chicago R. I. & P. R. R. Co., 14 Abb. N. C., 326). This proceeding is brought under that act, and as the duty is absolute, I do not think that the transfer agent has the right to inquire into the motives and purposes of the stockholders.

In construing the statute of this State relating to domestic corporations the court of appeals (Cotheal v. Brouwer, 5 N. Y., 566) said : “ The officer having the custody of the books is not constituted by the act a judge of the motives of the stockholder in making his inspection or of the precise manner in which it shall be conducted, nor of the purpose which the information thus obtained shall be made to subserve.”

The court in that case cite approvingly the case of The People v. Throop (12 Wend., 183). in which the cashier of a bank had refused to permit a director to inspect the discount book, and a resolution had been passed by the board approving of his conduct. The court, however, held that the cashier could be compelled to submit the book for the inspection of the director, although the latter was believed by the other members of the board to be hostile to the interests of the institution.

If the relators in this case have sufficiently established by their papers that they are the holders and owners of the stock referred to in their petition, it follows that they are entitled to inspect the books unless it is shown that they have lost their right for reasons stated in the papers of the respondents. It is said by the learned counsel for the respondents, that the title of the relators to the stock in question is denied in the respondents’ affidavits, and that therefore an issue of fact is raised which must preclude the issuing of a peremptory mandamus in the first instance.

In this position I cannot concur with the respondent’s counsel, because it will be found that the positive allegations of the relators in respect to their ownership of the certificates are not positively denied by the respondents. The respondents state “ that they have no knowledge or information sufficient to form a belief that the relators are or were, or either of them is or was at the time in that behalf alleged the owner of the shares of the stock of the Dubuque and Sioux City Railroad Company, alleged to be owned by them, or that they neither hold the said alleged certificates therefor, or that they were or are the owners of such certificates.” They then allege that there were issued to the names of the relators, at or about the dates in that behalf mentioned, the certificates for the several lots of shares of the stock of said company in the petition set forth; but whether at the time alleged the petitioners were or are the owners, &c., they have no knowledge or information sufficient to form a belief.

The general term of this department held, in People ex rel. Carleton v. Assessor of N. Y., (52 How. P. R., 140), that positive allegations in moving affidavits are not put in issue by denials upon or want of information in answering affidavits, and that, upon an application for a mandamus, if the substantial allegations in the moving affidavits aré not fully met or avoided in the answering affidavits, a peremptory writ should be granted in the first instance. Justice Daniels in delivering the opinion of the court referring to the relator, says: “ He swore positively to his title to the property, and his statements upon the subject were not otherwise denied than by an answer of the board, verified by one of its members, denying knowledge of -information sufficient to form a belief whether such statements were true. That form of denial, for the purpose of meeting the averments of a positive affidavit upon a special motion, really amounts to nothing. The Code has allowed it in an answer, or reply, in forming issues of a fact by way of pleading, but it has not been sanctioned or allowed for any other purpose. The applicant’s affidavit may very well be literally true and, at the same time, the person verifying the answer may have had no knowledge or information whatever upon the subject. For that reason the answer does not tend to discredit the statements made in the affidavit, and it must, therefore, be taken to be presumptively correct as to the applicant’s title.

For the reasons stated by Justice Daniels it seems clear that I must in this case reject the alleged denials by the respondents of the positive arguments of the relators’ ownership of the certificates in question.

It being established that the duty of the transfer agents under the act of 1842 is absolute; that the relators are the owners of the certificates in quéstion; and that the motive of a stockholder, who has an absolute right to inspect the books of a corporation, cannot be inquired into, why are not the relators entitled to the relief which they seek on this motion ? It is said, and the relators themselves admit, that the relators are not certain as to whether John Patón & Co. or the Metropolitan Trust Co. are to be regarded as the transfer agents, to whom the mandamus, if granted, should issue. It appears, however, from the relators’ petition that John Patón & Co., in compliance with the provisions of the by-laws of the corporation, were duly appointed as its transfer agents, and that the Metropolitan Trust Co. were appointed either as transfer agent or registrar of transfers of the stock of such corporation, and are now acting as such.

Those allegations do not seem to be denied. Patón & Co., in their correspondence with the Messrs. Harriman, sign themselves as transfer agents, and the Metropolitan Trust Co., upon being described as the registrar of transfers of stock of the railroad corporation in the demand made upon them by the relators placed their refusal upon the ground that they had been instructed by the president not to grant it, and when the petitioners called again the trust company stated that they had not possession of the books specified in said demand. These are the allegations in the petition, and they are not denied in the answering affidavits.

Under these circumstances I think the relators have a right to ask that the peremptory writ be directed to both of the respondents. The ease of the People ex rel. Hatch v. L. S. & M. S. R. R. Co. (11 Hun. 1) contains nothing in opposition to these views. The proceeding then was held to be one brought under the provision of the Revised Statutes relating to domestic corporations. It was shown there that there was to be no election within thirty days next after the time of the application, and it was held that the case was not within the provisions of the statute above referred to, and, while the court did not absolutely determine that the right to examine the transfer books was limited to the period of thirty days prior to its election, it also held that the application was addressed to the sound discretion of the court, and that no mandamus should be issued prior to that time, except for clear and cogent reasons. But this proceeding is under the act of 1842, and, as we have seen, the duty is absolute on the part of the transfer agent to exhibit the transfer book and a list of the stockholders at all reasonable times during the usual business hours to any stockholder, when required, if in his power so to do.

The two cases are therefore entirely dissimilar.

Let a peremptory writ of mandamus issue as prayed for.


text:
    People ex rel. Harriman et al. v. John Paton et al., Defts.

      (Supreme Court, Special Term, New York County,

      Filed January, 1887.)
    1. PRACTICE — DEPOSITION OP A PARTY CANNOT BE TAKEN UNDEB CODE Civ. Pro. § 885.
    Section 885 of the Code of Civ. Pro., provides that the affidavit or deposition sought for shall be that of a person not a party. The deposition of a party cannot he taken under it.
    2. Corporations — Foreign Corporations — Bight op transfer agent to inquire as to ownership of stock.
    The transfer agent of a foreign corporation has no right to inquire whether the transfer of stock to the relator was meiely colorable or whether a consideration was paid therefor, or as to the occasion of the transfer.
    Motion to take the deposition of the relators to be used on a motion.

      Seward Da Costa Cruthrie, for relator; John E. Parsons, for defendants.
   Lawrence, J.

This motion must be denied on the following grounds: First — Section 885 of the Code of Civil Procedure provides that the affidavit or deposition sought for should be that of a person not a party. It is apparent from the petition of Edward H. Harriman that he is a party to this proceeding, being, with his co-partner and co-petitioner, the owner of the shares of stock of the Dubuque & Sioux City Railroad Corporation referred to in the'petition. The relief sought for by the petition is merely for the protection of private rights, and the relators must show, in such cases — and they do, prima facie, show by their petition in this case — a personal and special interest, and they are to be regarded, in such cases, as the real party in interest (See High on Extra Leg. Rem. Sec. 431, Sec. Ed., 304, cited by the relator’s counsel; Sheridan v. the Mayor, etc., 68 N. Y., 30; Erwin v. Oreg. R'y Nav. Co., 35 Hun 671.) Second — I do not think that the demand which was made upon the relator was sufficiently specific as to the affidavit which the respondents required the relator to make. Third — the relators distinctly swear that they are the owners of the certificates of the stock specified in their petition, and it would seem under the decision of the court of appeals in Sheridan v. The Mayor, etc., 68 N. Y., 30, that the respondents have no right to inquire whether the transfer of the stock to the relators was merely colorable, or whether a consideration was paid therefor, or as to the occasion of the transfer. Fourth — It may well be doubted whether the section under which this application is made refers to any other proceedings than those which arise in an action or are incidental thereto. Ordered accordingly.

       See opinion in same case, reported ante, p. 313, for the facts.


author: Van Brunt, J.

text:
    People ex rel. Elizabeth Van Riper, Plff., v. The New York Catholic Protectory, Deft.

      (Supreme Court, Chambers — New York County

    Filed, January 5, 1887.)
    Parent AND Child — Rights of parents to custody of Child — Poweb of Legislature.
    The Legislature has no power to enact that merely because a child under sixteen years of age is found in the street without attendance, and because a magistrate should choose to characterize this as an improper exposure, a parent could.be deprived of his child ; neither is there any power to deprive a parent of the custody of his child without notice and an opportunity to be heard.

      Habeas corpus and certiorari in respect to custody of Florence Van Riper.

      Dennis McMahon, for petitioner; Denis Quinn and John £. Pine, for respondents.
   Van Brunt, J.

The child referred to in the 'proceedings in this matter is detained because of a commitment by a police magistrate alleging that the child was improperly exposed and neglected and wandering in the public park without any proper guardianship, and that the child was found in the company of one Mary Ryan, who is a reputed prostitute, in yiolation of the provisions of the Penal Code.

, No evidence is returned, and the demurrer to the traverse admits that the father of the child, with whom the child lived and under whose guardianship she was, had no notice of the proceedings affecting his child.

. The respondents claim that in the commitment reciting jurisdictional facts, there is no power to review the action of the committing magistrate, although a parent may be thereby deprived of the custody of his child without an opportunity to be heard and without there having been any evidence produced to justify the findings in the commitment.

It is true that the, acts of the Legislature which have been passed seem so to read, but as there is no power in the Legislature to deprive a person of one dollar of his property without his having an opportunity to be heard and without due process of law, neither is there any power to deprive a parent of the custody of his child without notice and an opportunity to be heard.

It would be a monstrous doctrine to hold that under any legislation, merely because a child under sixteen years of age is found in the street without attendance, and because a magistrate should choose to characterize this as an improper exposure, a parent could be deprived of his child, and that, too, without being afforded an opportunity to offer any defense. This is what seems to be claimed in the case at bar. It does not seem to me that such a construction of the statute can possibly be upheld.

Petition granted, and prisoner discharged.


text:
    People ex rel. Thomas F. Gillane, Plffs. v. Woodman et al., constituting the Commissioners of the Board of Excise, Defts.

      (Supreme Court — Chambers — New York County

    Filed January 14, 1887.)
    Excise Law — Building used for public amusement — When not a VALID GROUND FOR REFUSING AN EXCISE LICENSE.
    The fact that a building is used during some part of the time as a place of public amusement affords of itself no valid ground for the refusal by the board of excise, of an excise license.
    Motion for mandamus to compel the granting of an excise license to the New York Academy of Music.

      Seward, Da Oosta Gruthrie, for relator; Clarence W. Day- ■ ton for defts.
   Lawrence, J.

When a similar application was made by this relator last year, Mr. Justice Van Brunt, in granting the application, said [Reported, People ex rel Gillaine v. Haughton 3 How. Pr. Rep., N. S., 135.] : “ An examination of this section shows that this restriction only applies to the hours during which the building is being used for public performances, and the selling of liquors at all other times in such a building is no violation of the act, and that the excise license is in no way affected by a violation of the prohibition contained in the act, the only license affected being the public amusement license. As, therefore, the sale of liquors in such a building in no way contravenes any statute during a large part of the time, and as the penalty for a violation of the Public Amusement Act effects the public amusement license only, andinno way affects the excise license, it seems clear to me that the fact that a building is used during some part of the time as a place of public amusement affords of itself no valid ground for the refusal of an excise license. If the licenseé violates the Public Amusement Act, that act fixes the penalty, which in no way relates to the rights conferred by the excise license.”

There has been no change in the law since that decision was rendered, which affects the question presented by this application.

The decision in the cases of The Mayor, etc., v. Eden Musee, etc., Co.. The Mayor, etc., v. Gould and The People ex rel. Hamlin v. The Board of Excise Commissioners do not support the construction of the statute contended for by the respondent’s counsel, inasmuch as they relate to the construction to be giveh to the Public Amusement Act.,

For these reasons I am of the opinion that the motion for a peremptory writ of mandamus should be granted.