author: Buger, Ch. J.

text:
    John Middleton, App’lt, v. Horatio N. Twombly, Ex’r, et al., Resp’ts.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Money had and received—Limitation of action.
    Between 1861 and 1865 plaintiff consigned goods to F., defendants’ testator, the latter to pay expenses and remit half the net proceeds. Previous, to 1865 F. sold the goods, etc., and remitted plaintiff his share of the proceeds, but subsequently F. received from insurance companies, in which the goods had been insured, dividends declared in favor of policyholders for business done with them, of which fact he did not inform plaintiff, and the latter became aware thereof only after F.’s death in 1887. Held, that the obligation and cause of action accrued against F. the moment the money was received; that he was under a legal obligation to remit; that no demand was necessary, and that the action was barred by the statute.
    3. Same.
    As to moneys received by F. for other goods sold on commission, and the proceeds remitted under a similar arrangement, he did not act as a "foreign factor,” and no demand was necessary to set the statute running ■ as to insurance moneys paid him in the same way.
    Appeal from judgment of the New York superior court, general term, affirming an order setting aside a verdict in favor of plaintiff and directing a new trial.

      Carlisle Norwood, Jr., for app’lt; Joseph W. Howe, for resp’ts.

       Affirming 30 N. Y. State Rep., 379.

   Buger, Ch. J.

The causes of action in this case arose at several periods between the dates of 1864 and February 8, 1867, upon the receipt by the defendants’ testator of the plaintiff’s moneys. • The action was commenced in January, 1889, and the sole defense is the statute of limitations. It follows, necessarily, that the causes of action were outlawed. It is conceded by the defendants that if their testator was under a legal obligation to remit the funds in his hands belonging to the plaintiff, the action is barred; but they contend that no such duty lay upon the testator until after instructions to remit, or a demand. The principal cause of action arose out of the following state of facts. The plaintiff was a • merchant, residing and doing business in China, and defendants’ testator resided in New York and did business there as a* commission merchant Between January 1, 1861, and January 1, 1865, the plaintiff bought goods in China and consigned them to the defendants’ testator in New York, under an agreement that the consignee should sell said goods and from the proceeds pay the cost of the goods with all expenses of freight, insurance and such others as might be incidental to the transaction of the business, and share equally the net profits and losses of the several adventures with the plaintiff. Previous to January 1, 1865, the consignee had sold all of the goods consigned to him, collected the proceeds, rendered statements of the sale of such goods, the amount of the expenses, and remitted to the plaintiff the share of the proceeds belonging to him. The insurance companies in which such goods had been insured by the defendants’ testator subsequently declared dividends in favor of their policy holders for business done with them during the years 1862, 1868, 1864 and 1865, and paid over the amount of such ■dividends to such testator. Such dividends were received by the ■consignee, but he never reported their receipt to the plaintiff or paid over to him any part thereof. The plaintiff was ignorant, not only of the fact that the partnership was entitled to such dividends, but also that they had been paid to one of its members, until the year 1888.

It cannot be questioned but that these dividends, were the legitimate proceeds of the goods consigned by the plaintiff to his partner, and assets of the firm distributable like all other assets to its respective members. Through inadvertence or mistake, the defendants’ testator, when rendering his final account of the transactions of the firm to the plaintiff, had omitted to mention these assets, but when they were paid to him the error or omission in the final account was demonstrated, and it became liable to be opened at the suit of the plaintiff and its mistakes and omissions corrected. The defendants’ testator had the right to retain one-half of these moneys, but the other half did not belong to him, -and he had reason to believe that the plaintiff did not know that they were due the firm or were in the defendants’ hands. It was the plain duty of the defendants to remit them to the plaintiff -Aside from these unexpected assets, the affairs of the concern had all been settled up and the relations of partnership existing between the consignor and consignee dissolved.

The ^ defendants’ testator had an undoubted right to receive these dividends as a member of the partnership firm, and, according to the usual course of business, it was his duty, from time to time, as he received' them to remit the share of such dividends belonging to the plaintiff to him under the partnership agreement. Mills y. Mills, 115 N. Y., 80; 23 N. Y. State Rep., 604. All liabilities of the firm had then been discharged, the assets of the firm had been collected, and consisted of moneys in the hands of the defendants’ testator, and there was nothing remaining to be done, as to partnership accounts, except the distribution "of this asset so unexpectedly recovered. It is a general rule that an action at law cannot be maintained by partners respecting partnership transactions; but this rule does not apply to actions brought upon express or implied promises in relation to special transactions, or where a balance has been declared or the action does not involve an accounting of the partnership transactions. Howard v. France, 43 N. Y., 593; Crater v. Bininger, 45 id., 545.

The right of the plaintiff to recover this asset is based upon the obligations of the partnership agreement and a promise to be implied from the circumstances of the case to pay it. The dissolution of the firm leaving this asset unaccounted for under the circumstances worked no bar to an action by the plaintiff to recover it It is entirely immaterial whether the action brought is for an accounting as to the particular asset or an action for money had and received or upon an implied trust; the rule of limitation applicable thereto in the absence of special circumstances not appearing in this case is that of six years. Roberts v. Ely, 113 N. Y., 128; 22 N. Y. State Rep., 185. Sections 74, 89 and 91 of the Code of Procedure contain the rule governing this case, as the Code of Civil Procedure was not enacted until long after the time for the commencement of an action to recover this demand had expired, and was expressly exempted from the operation of § 410 by § 414 of the Code of Civil Procedure. That rule requires that an action upon a contract obligation or liability, express or implied,” shall be commenced within six years after the cause of action accrues. § 91, Code of Pro.

The second cause of action stated in the complaint stands upon a slightly different footing, but we think that this also is barred by the statute of limitations. In the business out of which this cause of action arose the defendants’ testator • acted as a factor to sell and dispose of the plaintiff’s goods and remit the proceeds less a commission for his services and the expenses of the business. Insurances similar to those effected on other consignments were obtained by the consignee and dividends on such policies were declared by the insurance companies and paid to the consignee after he had disposed of the goods and remitted the proceeds, less his commission, insurance and other expenses to the plaintiff. The whole of these dividends, ex aequo el bono, belonged to the plaintiff and it was the factor’s plain duty to remit them to him when they were received.

It is claimed, that the defendants’ testator received these dividends as a foreign factor, and could not be made liable for them until after demand. This is undoubtedly the general rule, but when from the usual course of business, or special contract and instructions, a different practice has been pursued, it is the duty of the consignee to remit without waiting for demand. Cooley v. Belts, 24 Wend., 203; Brink v. Dolsen, 8 Barb., 338. In this case the consignee had remitted the proceeds of the several consignments previously received by him, and it was supposed by the plaintiff that the transaction was closed, but, by an unexpected chance, the consignee recovered back some of the expenses which he had been obliged to pay out for the plaintiff, and these sums having been allowed by him, it was the defendants’ testator’s manifest duty to rectify the mistake which then appeared to have been made in his account by remitting, as he had theretofore done, the sums thus received to the plaintiff. We do not think the circumstances of this case required a demand before suit brought, as the cause of action accrued upon the receipt of the money by the consignee and his failure to remit. Baker v. Exchange Bank, 100 N. Y., 31.

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

All concur.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Thomas F. Mason, Receiver, App’lt, v. Justine M. Cronk, Adm’r, Resp’t.

      (Court of Appeals,

      Filed February 24, 1891.)

    Insurance companies—Consolidation—Guaranty.
    The assets of the Widows’ & Orphans’ Insurance Company were more than enough for its reserve, hut its capital was declared by the insurance department to be impaired to the extent of $60,000. The Mutual Protection Company was insolvent to the knowledge of its president, vice-president and secretary, who, representing their company to be solvent, made a written proposition on behalf of their company to buy the stock of the W. & O. Co. The M. P. Co. borrowed the money, paid the price, gave a guaranty to fulfill the obligations of the W. & O. Co., divided up the stock among its friends, and put them in the W. & O. board, which re-insured in the M. P. Co., transferring to it the $1,500,000 reserve to pay the money borrowed. The latter was subsequently wound up. In an action on the guaranty by the receiver of the W. & O., Held, that the evidence justified a conclusion by a jury that the loss of the reserve was due to the reckless action of the new management in parting with the reserve to an insolvent company without security, and that the complaint was improperly dismissed.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment dismissing the complaint.

      R. J. Moses, Jr., for app’lt; P. H. Vernon, for resp’t

       Reversing 27 N. Y. State Rep., 122.

   Finch, J.

This action is brought upon a guaranty, the con- and obligation of which was settled in the case of Wise v. Morgan, 13 Daly, 402, afterwards affirmed in this court without an opinion, 103 N. Y, 682; 7 N. Y. State Rep., 862. The general term of the common pleas held that the guaranty signed by the defendant did not make him liable absolutely for the payment in full of the policyholders of the Widows & Orphans’ Life Insurance Company, or responsible to them for a mere default by that company. It is now claimed that such construction was not- necessary to the decision, and so cannot be deemed settled by the affirmance in this court. I think that is a mistaken view of the decision. The action in the common pleas was brought by a policyholder in his own name and right against the alleged guarantor, and upon the theory that the latter’s promise to the- Widows & Orphans’ Company was for the plaintiff’s benefit, and' gave him a right of action within the doctrine of Lawrence v. Fox. In discussing that question it became necessary to determine exactly what the promise was. The opinion clearly indicates that if it was a guaranty of full payment in any event to the several policyholders, the promise would be so definite and certain, and so clearly for the benefit of persons accurately identified, although not by name, as to vest in them a direct right of action. In holding that no such right existed, the court was compelled to measure the meaning and scope of the guaranty, and to decide, as they did, that it involved no such responsibility, but one of a different character, wholly indefinite and uncertain, as it respected the policyholders, and upon which they could found no right of action. That conclusion we affirmed. Looking back at our decision we discover no reason to doubt or reconsider it. The guarantors most certainly did not mean, nor were they understood to mean, a guaranty of the future solvency of the company through all chances and changes. The primary purpose of their obligation was to secure the proposed terms of purchase, and, as incidental to that, to assure the sellers that the rights of their policyholders would be respected and protected. It was in that view that the vendees said: “ That the contract obligations entered into by the Widows & Orphans’ Company, with its policyholders and others, of every name and nature, will be rigorously fulfilled to the same extent and in the same manner as if no change, such as is contemplated, should take place.” The obvious meaning is that the new management will hot undertake to repudiate or dispute the contract obligations of the company, but will respect and fulfill them. They preface their promise with the expression “ it is hardly necessary to say; ” language utterly absurd if they meant to guaranty the future solvency of the company, as to its policyholders; for if that had been intended it would have been very necessary to say it, and in clear and definite terms, since no law would exact it without the express promise. The further phrases used show that under the changed management there was to be no new or broader liability, but only the existing one to be faithfully preserved. We see no reason, therefore, to distrust the construction which we held so confidently as to deem a formal opinion needless.

But it is not the individual policyholder seeking relief through a promise made to another who brings this action, but the representative of the promisee, the receiver of the company to which the promise was made, and the sole question presented is whether that promise has been broken in such manner as to make the guarantors liable for the resultant damages. That promise, as we have already construed it, required of the new managers of the Widows & Orphans’ Company that they should rigorously fulfill its contract obligations as they would have been fulfilled if no change had taken place. That covenant might be violated in either one of two ways, by a direct or an indirect method. The new managers might repudiate and dispute the existing contracts with policyholders, and so drive them to their actions for damages; or, by affirmative and intentional acts put the company in a position which made fulfillment impossible and so, knowingly or recklessly, defeat the contracts in that manner and by that process. In either event the covenant would be broken, for one who voluntarily puts it out of his power to fulfill his contract violates it as clearly as if he openly disputed or repudiated it. When the guaranty was made the Widows & Orphans’ Company was entirely solvent, as it respected its policyholders. It had in safe and undoubted assets more than enough for its reserve, but its capital was impaired about one-half, and was known to be impaired to the extent of $60,000 by the public declaration of the insurance department At the same date the Mutual Protection Company, of which the decedent was president, was, in fact, insolvent We have a right to assume that its condition was known to him and to Sanford, the vice-president, and Freeman, the secretary. These three persons, representing their company to be solvent, made, in writing, a proposition in behalf of that company to buy up all the stock of the Widows & Orphans’ Company with a view to its absolute control. Although that stock was publicly known to be impaired, they offered for it par in currency and accrued interest in gold, which was then at a premium. The intending purchaser paid one of its directors $25,000, “ as an attorney in transacting the business for the Mutual Protection Life Insurance Company, for the purchasers, whoever they might be.” Raymond received, also, beyond the price of his stock about $10,000 and further employment at a salary. Where the money came from we do not actually know, but there was no visible source, unless from the assets of one or the other of the companies.

The purchase proposal ran smoothly to its result, and it undoubtedly helped to pacify the consciences of the sellers that the purchasers formally agreed to fulfill rigorously the contracts of the Widows & Orphans’ Company unaffected by the change of owners, and that the decedent guaranteed that agreement. The purchase was consummated. The Mutual Protection Company borrowed the money necessary for the price to be paid, took the stock and distributed it as it pleased, and put a majority of its own friends into the Widows & Orphans’ board. Among these were Morgan, Sanford and Freeman, who were officers of the Mutual Protection and had served as the purchasing committee. With great promptness this new board made a contract of reinsurance with the Mutual Protection Company; transferred to it in consideration of the agreement the whole solid reserve of the Widows & Orphans, amounting to nearly a million and a half of dollars, and took no security for the performance of the agreement. The Mutual Protection Company out of these transferred assets paid up the money borrowed to make the purchase, so that the reserve of the Widows & Orphans was made to pay for the stock of that company, and became at once and inevitably insufficient to meet the obligations ultimately to become due to the policyholders; and three men, one of whom was the decedent, knew all the facts and aided in producing the result Thereafter both the Mutual Protection Company and the Widows & Orphans were wound up as insolvent, with resultant losses to the policyholders.

We have held that the contract of an insurance company with its policyholders implies that it will retain its assets in its own possession and continue its business; that if it reinsures its risks .and parts with its reserve its contract is at once broken at the option of the insured; that they may not be turned over to another company without their assent, and are not obliged to pay premiums to the company which has parted with its reserve; and so may treat the contracts as broken and recover damages for the breach, whenever such damages have, in fact, accrued. People v. Empire Mut. Co., 92 N. Y., 105. In the present case the new management broke every contract with their policyholders when they made the agreement of reinsurance, and in pursuance of that agreement parted with their entire reserve to an insolvent company, and took in exchange no security whatever for the protection of their policyholders. The safety of the latter, not at all in peril before the sale, was at once menaced and put in jeopardy, and that by an affirmative and extraordinary act which violated every existing contract with the policy holders. Admitting, as we do, that the future solvency of the Widows & Orphans’ Company was not guaranteed: that a loss from misfortune, or error of judgment, or the mutations of business or the market would fall upon the policyholders and not be covered by the guaranty; is it and can it be also true that the new managers could do a positive and affirmative act in violation of every contract with the insured and pour into the coffers of another and insolvent company the very reserve which they were bound to hold for the safety of the assured, and, as a consequence, ultimately fail in performance, and yet be held to have rigorously fulfilled the contract obligations of the Widows & Orphans’ Company to the same extent and in the same manner as if no change of control had occurred ? The contracts were to be fulfilled; not broken by a deliberate and voluntary act. It would be a violent assumption for the relief of the defendant to conjecture that if there had been no sale the old board might have reinsured in some bankrupt company, or failed in the end to meet its liabilities. It is enough that the contracts with policyholders were broken and not kept, and that the final breach may be traced back to a positive act, the natural and almost inevitable consequence of which was the loss to policy holders which has occurred. The loss is shown; ample cause for and explanation of it exists in the act established; no other origin or cause is' indicated by the proof, and the ordinary inference must follow.

Of course, the company or its receiver could not sue for a breach until some liability to its policyholders accrued on its own part which it was necessary to meet So long as the policyholders continued to pay their premiums, and thereby exercised their option not to treat the contracts as broken by the transfer of the reserve, and the Mutual Protection Company paid claims as they matured, there could be no right of action by the Widows & Orphans’ Company upon the guaranty. But when the Mutual Protection Company failed, and the claims of policyholders could not be met by the reinsurer, and the Widows & Orphans’ Company also failed and passed into the hands of a receiver, those claims were presented and established, and it became the right and duty of the receiver to turn the guaranty into assets to meet the claims of creditors. His action, therefore, was brought in time, and the only real question at issue is whether upon the facts the deficit in the Widows & Orphans’ assets can be fairly traced to the transfer of the reserve by the new board to the Mutual Protection Company. We think it can. The new managers, when they came into office, found the Widows & Orphans’ Company with a reserve entirely adequate to meet all contracts with policyholders. That reserve it was their duty to keep and maintain, and if they had done so there is no ground, from any proof in the case, to infer that the policyholders would have suffered a loss. Of course, in its care and management, and in the further transaction of business, that reserve might have become impaired, but the possibility is only a possibility and purely the subject of conjecture, and cannot serve to condone a breach of contract obligations, the immediate and natural result of which was to make performance by the Widows & Orphans’ Company according to the contract impossible. Parting with their reserve was a wrongful act as against the policyholders ; its immediate consequence was a depletion to the amount of nearly $300,000, against which the transferring company had taken no security or protection ; and its own failure may reasonably, and, in the absence of other adequate cause, must be charged to the reckless risk of trusting to the solvency of another company which it could neither manage nor control. There was sufficient evidence to have required such a conclusion by a jury or finding by a court, and it was error to dismiss the complaint without either.

The judgment should be reversed and a new trial granted, costs to abide the event

All concur, except Peckham, J., not sitting.


author: Peckham, J.

text:
    Lewis L. Fosdick et al., Ex’rs, App’lts, v. The Town of Hempstead, Impl’d, Resp’t; George T. Hewlett et al., App’lts.

      (Court of Appeals,

      Filed February 24, 1891.)

    Will— Bequest to tow poor.
    A bequest to a town in trust in perpetuity for the benefit of the poor of the town generally, not confined to those for whose support the town is under a statutory liability, is invalid for want of an ascertained beneficiary.
    (Rugbb, Oh. J., Finch and Gbay, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, second department, modifying judgment of special term.

      J. T. Marean, for app’lts ; Edward E. Sprague, for resp’t.

       Reversing 29 N. Y. State Rep., 545.

   Peckham, J.

Abraham Hewlett, of the town of Hempstead, in Queens county, duly executed his will, and having died it was admitted to probate. Questions arising upon the proper construction of some portions of it, this action was brought to obtain a judicial construction thereof.

By the tenth section of the will, the testator gave and devised the residue of his estate to trustees for the establishment of a school and its permanent endowment for the education and benefit of such persons as should be admitted thereto by the trustees or their successors; the school was to be located in the town of Hempstead, and was to be known as the Hewlett Academy. The trustees were to apply to the legislature for proper acts to incorporate the academy, and the funds were then to be transferred by the trustees to such corporation.

In case any of the trusts created by his will should fail for any reason, then the testator gave, devised and bequeathed all his “ estate and property affected by such failing .trust or trusts, one-half to the corporation, the rector, church wardens and vestrymen of Trinity church, Eockaway, in the county of Queens, and to his successors and assigns forever, and the other one-half to the town of Hempstead, to be kept as a fund for the support of the poor of said town and to be known as “The Hewlett Fund.” Upon the trial the court held the trust for the “ Hewlett Academy ” was void and that both the devise and bequest to the town of Hempstead for the support of the poor were void. The counsel for the town had claimed that under the prior provisions of the will there had been an equitable conversion of all the real estate of the testator and that as personalty the town could take. The estate consisted of quite a large amount of real and personal property. The town appealed and the general term affirmed the invalidity of the trust for the “Hewlett Academy,” and that trust is recognized as invalid by all parties. It also held that the bequest to the town was valid, but that there was no equitable conversion and consequently the town could not take the real estate. Counsel for the town does not now claim that it has power to take lands by devise.

The executors and next of kin appear here from the modification of the judgment by the general term and the town appeals from that portion of the judgment which affirmed the special term as to the real estate which prevents the town from profiting by the devise.

In the view we take of the case it becomes necessary to examine the question of equitable conversion. Ho question is made as the validity of the bequest of one-half of the residue of the estate of the testator to the Eector, etc., of Trinity Church and the matter left for our consideration relates entirely to the validity of the bequest of the other half to the town of Hempstead. The first inquiry is as to the intention of the testator, and having determined that, the question then arises whether the same can b.e carried out as prescribed by the testator consistently with the rules of law.

What then did the testator intend by the language of this bequest ? Did he refer to those persons only who would answer the statutory definition of poor, for whose support the town would raise the money as provided by statute to be expended by its officers elected or appointed for that purpose ? Or did he mean that broader class of people who, while not blind, lame, old or impotent, so as to be unable to work, would yet, in general- estimation, be regarded as fit subjects of individual -charity on account of their poverty ? People, in other words, who would have no statutory ground to ask for relief from the town officers, but who from the necessities of their case could appeal with almost irresistible force to the generosity of the -charitable ?

I think it was the broader class. It seems to me that the testator had in mind that persons answering such description should be relieved as far as the funds provided by him would permit, and in such manner as to show that the gift was from his bounty .and that the charity flowed from his fund to the recipient in each individual case. He did not wish the special character of this fund to be lost by the simple addition of that amount to the town moneys raised'for the support of the statutory poor, but every time an individual was relieved by moneys prising from it he wanted that individual to feel that he was relieved by the bounty of the testator. I reach this conclusion from an examination of the language of this will. He gives one-half of the residue of his estate to this town, to be kept as a fund for the support of the poor of said town, and to be known as the “Hewlett.fund." Its special character would be lost as a mere addition to the moneys raised by the town. It would go into the hands of the town officers precisely like the moneys raised by taxation, and would substantially form a part thereof, and it would be paid out by them the same as such moneys, and in that way its identity as the “ Hewlett fund ” would be ignored.

The recipients of the public alms of the town would probably recognize nothing of the difference in source from which any part of the moneys came, but the whole would be regarded as provided by the town and raised by taxation. The testator evidently attached some importance to the naming of the fund, and to its separate preservation as the Hewlett fund, and it can only be, as it seems to me, because he was desirous of perpetuating his name among the poor of the town as their benefactor to the extent of that fund. To mingle its income or its principal with the town moneys, and to pay it all out indiscriminately as town moneys raised by taxation would, as I think, seriously impair the fulfillment of that desire.

Again-1 think the natural inclination of an individual would be to the broader class, because otherwise the gift is really not to-the poor, but to the town to aid it in the discharge of its own statutory duty, and in that way to lessen the taxes on the community at large. The taxpayers of the town may not all answer the description of rich men, but they certainly would still less answer the description of the poor of the town, and yet the gift would be" to the taxpayers in effect if the other interpretation were adopted. It would be to them in effect because the probable and natural result of such a bequest would be, not to make a.n addition to the fund available for the support of the town poor by just the amount of the gift, but to decrease by just that sum the amount which would otherwise be raised by taxation. Language in some respects like that used in this will has been held in England to create a charitable trust fund to be expended by. the corporation in aid of the poor, and not of the poor rates. Some of the English cases held that the fund was intended to be distributed to the poor to the exclusion of those who were town charges, and some held that the distribution was intended to be indifferently to both classes, but not in exoneration of the poor rates. These cases were cited by counsel for the executors, and will be found in the synopsis of his brief by the reporter.

I think, too, that this fund was given in trust and in perpetuity to the town to be kept as a fund, and the income only to be used for the purpose indicated in the will. How could it be kept as a fund, which was to be known as the Hewlett fund, if the principal were to be paid out at any time ? To be kept as a fund under the circumstances of this case, and where the gift is to a corporation, must mean to be perpetually kept as a fund. The fact that the word trust is not used is of no great importance. The language which is used imports necessarily that the income only of the gift is to be used by the town, and for the purpose of doing something which the town is not otherwise legally called upon to do.

The town owes no legal duty to the broad class of poor people intended to be benefited by this provision in their favor. And when the bequest is thus made to the town it must be on the trust that it will carry out the purpose of the giver, although it-is much broader than any legal liability of its own, and consequently the gift cannot he for its own sole benefit If not for its own sole benefit, then it must be in trust for the benefit to a greater or less extent of some other person, body or class. Having reached the conclusion that the testator intended by his will to create a fund to be given in trust to the town in perpetuity, the income only to be used for the benefit generally of the poor of that town, and not to be confined to the class of poor which the town was under a statutory liability or duty to support, we may now inquire whether such intention can be lawfully carried out. Eegarding the questions in this case in the light we do, it is unnecessary to determine whether the town has the legal power to-take gifts by bequest absolutely to be applied by it in its discretion to some one or all of its corporate or administrative purposes, or to take in the same way such gifts in trust, and the income only to be entirely applied to some named corporate or administrative purpose. It may be conceded that it has both powers.

The question still remains whether the trust which the testator has attempted to create is a void trust. In Shotwell, Exr., etc., v. Mott, 2 Sandf. Ch., 46, a trust quite as vague as is the one under discussion was held to be valid, and if that case were still an authority in this state, we should have no difficulty in upholding this trust so far as the question of an ascertained beneficiary is concerned.

That case was decided soon after the adoption of the Revised Statutes, and it held that they did not apply to charitable uses, but that they were aimed at private trusts and accumulations for posterity, that public trusts and charitable uses were not within the intention of the legislature or the spirit of the enactment. The trust was upheld under the doctrine of charitable trusts.

The Shotwell case was alluded to in Bascom v. Albertson, 34 N. Y., 584, 609, by Porter, J., and shown to have been overruled, and in Holmes v. Mead, 52 N. Y., 332, 337, Allen, J., maintained that it had never been accepted by the profession.

.It would be quite inappropriate to now repeat the history of the contest in this state upon the question whether the English doctrine of charitable uses ever prevailed here. A general review of that contest was made by the late Judge Rapallo in the recent case in this court of Holland v. Alcock, 108 N. Y., 312; 14 N. Y. State Rep., 761, and his opinion leaves nothing to be added on that subject. That case leaves the doctrine no longer in doubt that to constitute a valid trust there must be a defined beneficiary, and the absence of such is, as a general rule, fatal to the validity of a testamentary trust. Is there any such beneficiary named or to be found in this will ? The learned counsel for the town says there is, and founds his assertion upon the claim that the beneficiaries are composed of the class defined by law, and are limited to such poor persons as the town is now, or may from time to time be, compelled to support But we hold that the testator did not intend to limit his charity by any such boundary. His intention was, as we have already stated, to embrace within his charity a much broader, while at the same time a much less well-defined class, depending very greatly upon the individual views of the person, or persons, who for the time being exercised the trust, and we say that to such an extent is the power of choice vested in the trustee that no one could claim the enforcement of the trust in his own favor or in the favor of others. The beneficiaries are neither named nor capable of being ascertained within the rules of law applicable to these cases. I think this is.now necessary in order to create a valid trust

The case of Power v. Cassidy, 79 N. Y., 602, is no authority for the validity of this trust. That case is authority for the proposition that a testator may confer upon his executors, or trustees, the power to divide a bequest or devise among such persons as they may select from certain classes which are designated by the testator, where such classes are sufficiently identified and described and limited as not to render the devise or bequest void for uncertainty.

It was also therein held that a description of the beneficiaries-by the testator as “ such Roman Catholic charities, institutions, schools and churches capable of taking by devise and bequest in the city of New York,” as the majority of his executors should decide and in such proportions as they should think proper, was sufficiently definite to be valid. The -necessity of an ascertained beneficiary was recognized. The will simply gave a power to the-executors to decide which should have the property or money once for all and in what proportions out of a class sufficiently described and identified in the will so as not to render the devise or' bequest void for uncertainty. That is a very different power from that attempted to be conferred by this will, for the beneficiaries-are not capable of definite ascertainment but depend forever upon the personal choice of a trustee or trustees, who may give to A. to-day and refuse to give to him next week under precisely the same facts. Others may have come under the observation of the trustees in the meantime who are in their judgment even more-than A. proper objects of the charity of the testator. No definite-class is described or identified in the will under consideration. Judge Rapallo in the case of Holland v. Alcock, supra, speaks of this case of Power v. Cassidy, and says that it was regarded as-going a great ways in holding the beneficiaries sufficiently defined or capable of ascertainment, and the court in other cases since that has announced that the decision was not to be extended. See Prichard v. Thompson, 95 N. Y., 76.

We are entirely convinced that a bequest at this day to a town in trust in perpetuity for the benefit of the poor of the town, not confined to those for whose support the town is under a statutory liability is invalid for want of an ascertained beneficiary.

The support of those persons who did not fall within the description of persons for whose support the town is under any statutory or other legal obligation is not so germane to the purposes of town organization as to make a trust for that object on the part of the town valid. The fact that the bequest is to a town does not overcome the fatal objection of the want of a beneficiary ascertained or ascertainable, and no function of a town as a corporation either for corporate or administrative purposes (whatever the distinction may be) is subserved ■ by a bequest for the-support of the poor for whose support it is under no legal obligation to provide either in whole or in part.

Special grants of power have been supposed necessary in order to enable cities and villages to act as trustees of property given for charitable purposes, including the relief of distress, and the absence of any such enabling statute in the case of towns is quite potent-evidence that they have no such power. Chapter 318, Laws of 1840, § 2; chapter 261, Laws of 1841, an addition to the above act

In holding this bequest to the town of Hempstead to be a trust, 1 have not overlooked the cases cited by counsel, which decide, as he claims, that gifts of this nature to a town are absolute. In Wil liams v. Williams, 8 N. Y., 525, the bequest to the trustees of the church in the village of Huntington and their successors, in trust for the support of a minister, was held valid for reasons given by Dsnio, J., in his opinion. He held that the gift was for one of the purposes for which the corporation was created, and that it was not necessary to the validity of a bequest to a religious corporation that it should be given generally for all the purposes for which it may be legally used: that corporations' of a religious nature were authorized to take property for the use of the society ■‘or other pious uses,” and that a benefactor might apply his bounty to the whole or any one or more of the various purposes for which the corporations were authorized to hold property.

Thus in the case a-t bar if the bequest had been for the support of those poor persons for whose maintenance the town was legally liable to provide, it might in that case be claimed perhaps that such bequest was for one of the purposes for which the town was organized or incorporated, and was, therefore, valid. The objection that the legacy was illegal as creating a perpetuity contrary to the provisions of 1 R. S., 773, § 1, was surmounted by Judge Denlo in the Williams case, by showing that religious corporations before the Eevised Statutes were authorized to hold real and personal estate in perpetuity and that the power was not taken away by the adoption of those statutes. That as such corporations had the power to take and hold property in perpetuity for the purposes of their incorporation, it was legal for a donor to prescribe by way of limitation that his gift should be kept and preserved so as to .subserve the purposes which the corporation was created to ¡cromóte, and that it was no. more than to declare that the property should be devoted to the objects which the legislature had in view when providing for the existence of the corporation.

The learned judge was also of the opinion that the statutes concerning expectant estates in personal property were not applicable to property bequeathed to one of these charitable corporations to be applied to any corporate purpose; that the legislature never intended that the statutes should reach so far as to include corporations holding property which they had a right to hold for corporate purposes, although the property was td be held in perpetuity, and the income only applied to one or more of such purposes.

In Adams v. Perry, 43 N. Y., 487, 500, Grover, J., was of the opinion that the reason why gifts to such corporations were valid was that by their charters they were authorized to take and hold property, and were thus exempted from the operation of the law regarding the suspension of the absolute power of alienation of real, and the absolute ownership of personal property. It is seen, however, that the gift, in order to take effect as an absolute one, must be for some one or all of the purposes for which the corporation was created. If the gift were to the town for the purpose of investing the principal and applying the income to the support of an opera company, it could not Ice said that the gift was an absolute one, and that the town took it with the right to apply it to any of 'its corporate purposes. It would be á gift in trust to apply it to certain purposes not corporate, and the trust and the gift would alike be void.

It is this circumstance, that the gift in this case is not for corporate purposes, which takes it out of the principle upon which the cases cited were decided. The cases of Wetmore v. Parker, 52 N. Y., 459; Le Couteulc, v. Buffalo, 33 id., 333; Vail v. Long Island Railroad Co., 106 id., 283; 8 N. Y. State Rep., 700, were all instances of a gift to a corporation having power to take for the purpose that the gift was intended, and hence a direction accompanying the gift that it was to be used only for a _ corporate purpose, or that the income only was to be used, did not create a trust It was simply saying that the gift was for the purpose of aiding the corporation in the discharge of some of "its corporate functions.

It has been argued that where a legacy is given to a corporation having power to use money for several and distinct corporate purposes to be applied to one corporate purpose only, the gift was not absolute but was in trust to be applied as directed by the donor. Whether that be true or not is immaterial here. The purpose of the gift in this case was outside of any corporate or administrative purpose.

Thus far I have considered the town of Hempstead as in the same condition as any other town in the state. Its counsel, however, claims that by chap. 591 of the Laws of 1870, providing for the custody of moneys arising from the sale of its common lands and for the election of a treasurer of the town, a distinction is made in favor of this town which is material in the decision of the case before us.

We have read the act carefully and do not think it has any material bearing on the question discussed herein.

We reach the conclusion that the gift to the town was not an absolute one, but in trust for purposes which were not corporate or administrative, and that the town could not take it for that reason and the trust itself is void because of a lack of any ascertained or ascertainable beneficiaries to enforce the same.

The judgment of the general term so far as it modifies that of the special term should be reversed and that of the special term affirmed, with costs to the parties as directed by the judgment of the general term.

Andrews, Earl and O’Brien, JJ., concur; Ruger, Ch. J., Finch and Gray, JJ;, dissent.


text:
    Kate Hogan, Adm’rx, Resp’t, v. David Henderson et al., App’lts.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Negligence—Masteb Aim sebvant.
    In an action for negligence it appeared that deceased was a longshoreman engaged with others in loading a vessel with flour. In the square of the hatch and above the hold workmen had laid plank on the beams of the open deck and built upon it what is called a “stool” upon which men stood and received the flour lowered to them in slings and delivered it to other men who stowed it away. It was customary to extend the planks upon which the " stool ” was constructed to some distance outside of it-, but t!iat precaution had been omitted and deceased was struck by one of the descendí og loads and killed by falling into the hold. Held, that as the injury happened, not from an inadequate supply of boards or any defect in those supplied, but from the negligent manner in which the workman used them in building the “ stool ” and laying the plank for their own convenience, the master was not liable.

      2. Same.
    If the deceased commenced his labor after the “stool” had been built and without knowledge of the omitted plank and the consequent possibility of danger, that simply freed him from the charge of contributory negligence.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.

      Esek Cowen, for app’lts; S. Greenbaum and Daniel P. Hays, for resp’t.

       Reversing 31 N. Y State Rep., 798.

   Finch, J.

The plaintiff’s intestate was a longshoreman engaged with others in loading a vessel with flour. In the square of the hatch and above the hold workmen had laid plank and built upon it with bags of flour what is called a “stool,” upon which flour men stood and received the flour lowered to them in slings and then delivered it to other men who stowed it away. It was customary for the longshoremen to extend the planks upon which the “ stool ” was constructed to some distance outside of it, but that precaution had been omitted, and the deceased was struck by one of the descending loads and killed by falling into the hold. If the plank had been laid in the usual manner his life would have been saved. The negligence, therefore, upon which the judgment rests is the omission to lay the exterior plank, and the question discussed is to whom that duty pertained and whose negligence caused the injury. It has been charged upon the master for the reason that it is his duty to furnish to his servants a reasonably safe place in which to do their work. But the place which the master furnished was the strip itself, constructed in the usual way, and which became unsafe, not by reason of any careless or negligent plan or manner of construction, as to which no criticism is made, but solely from the way in which the longshoremen did their work. They built the stool and laid the plank for their own convenience in doing the work for which they were hired, and it was not the master’s duty to do either. If he was bound to furnish the necessary means and material, there is no suggestion even of a failure in that respect. The injury happened, not from an inadequate supply of boards or any defect in those supplied, but in the negligent manner in which the workmen used them. The evidence shows that it was their duty and their privilege, in the place furnished by the master and with the material supplied by him, to do the work in their own customary way ; that it was for them to lay the plank and build the “stool ” and do what was necessary to accomplish the loading with safety and convenience. Bags for the “stool” and plank for the beams were supplied in abundance, and it was not the master’s duty to lay the platform or build the “ stool,” but those duties were matters of detail in the performance of the servant’s work. If it be true that the deceased commenced his labor after the “stool ” had been built and without knowledge of the omitted plank and the consequent possibility of danger, that simply tends to free him from the charge of contributory negligence, but does not alter the relation of the master to the servants and their work. The neglect was a continuing 'one. It became such as to Hogan when he began his work, and at that moment the duty to close the opening by laying additional plank was that of the servants and not of the master. Ho negligence on the part of the latter was shown.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur, except Ruger, Ch. J., not voting.


text:
    The People, App’lts, v. The Atlantic Ave. R. R. of Brooklyn, Resp’t.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Cobpobation—Action fob fobfeitube of chabteb—Pleadings.
    An action to annul the charter of a corporation on the ground of the suspension of its business cannot be maintained unless such suspensionhas continued for a year.
    2. Same.
    The complaint must show on its face corporate acts or omissions such as not only put the company in the wrong, but such as were either voluntary or negligent, and so material a disobedience of the public law as within established rules to warrant a judgment of dissolution. Allegations of omission to run trains for five days will not suffice.
    3. Same—Laws 1887, chap. 529.
    A failure to observe chap. 529, Laws 1887, which provides that ten hours shall constitute a day’s work, is not a legal cause for forfeiture.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment sustaining a general demurrer to the complaint.

      John T. McDonough, for app’lts; W. W. Macfarland, for resp’t.

       Affirming 32 N. Y. State Rep., 717.

   Finch, J.

The relief demanded by the complaint in this action is the dissolution of the defendant company and the forfeiture of its charter. A demurrer was interposed upon the ground that the complaint did not state a cause of action and has been sustained and judgment rendered in favor of the defendant dismissing the complaint. The sufficiency or insufficiency of that pleading is the sole question involved in this appeal.

The first ground of action alleged is that the defendant corporation, which is a railroad company, organized as such for the transportation of passengers and freight, omitted and neglected for five days to run its trains. The averment is one of a mere non-user, not even alleged to have been voluntary, for that brief period of time. The statute furnishes an answer. It explicitly determines what period of non-user shall serve to produce a right of forfeiture, and fixing it at one year, makes a mere non-user for a less period no ground for a dissolution. The language of § 1785 of the Code, which permits an actipn in equity for a forfeiture, is that the action may be maintained against the corporation “ where it has suspended its ordinary and lawful business for at least one year.” The plaintiff claims, however, that the present action is brought under § 1798 and that it furnishes a different rule. That section contains no rule of liability whatever, but simply points out a mode of procedure to enforce duties or punish misconduct, elsewhere and otherwise settled and determined. The terms of the section show that clearly. The attorney general, with leave of the court obtained, may sue for a forfeiture in five enumerated cases. First, where the corporation 'has “ offended against” the law of its creation. What constitutes such an offense the section does not declare or affirm but leaves us to look elsewhere for the proper and lawful test. Second, when the corporation “ has violated any_ provision of law whereby it has forfeited its charter or be-' come liable to be dissolved by an abuse of its powers.” Here again the violation must be one whereby forfeiture follows, and we must go outside of the section to ascertain what violation will produce the result and what acts constitute an abuse of powers conferred. Third, “ where it has forfeited its privileges or franchise by a failure to exercise its powers.” When such failure works a liability to forfeiture the section does not undertake to determine. Fourth, where the corporation has “ done or omitted any act which amounts to a surrender of its corporate rights, privileges and franchises,” but what acts do amount to such a surrender we must go beyond the section itself to ascertain. Fifth, where the corporation has “ exercised a privilege or franchise not'conferred upon it by law.” Here again, what acts, or how long continued, or how material or important, shall bring the penalty of dissolution we are not told, I think it beyond question, therefore, that the section does not establish, or pretend to establish, any rule of liability, but simply to fix and enumerate the classes of cases in which, if liability does exist, the attorney-general may move, having first obtained the assent of the court. That section relates, therefore, merely to procedure, and does not determine, much less enlarge, existing rules of corporate liability. It accomplishes nothing, therefore, to say that the action is brought under § 1798. The vital inquiry still remains, what has the corporation done or omitted which brings down upon it the penalty of dissolution. The answer given by the complaint is that for five days it suspended its ordinary business of transporting passengers and freight. But § 1785 does give a rule of liability where such suspension of business is made the ground of action, and provides that it must continue “for at least one year.” Other remedies may be applied for a non-user of less extent, but the remedy of forfeiture follows the persistent and continued suspension of business for the fixed period.

But the learned counsel representing the People say that a corporation may incur the penalty of forfeiture by the “"abuse of its powers.” Undoubtedly it may, but the complaint contains no such allegation, nor any averment of fact from which such abuse of power could be inferred. That the defendant company did not run its trains for five days shows merely an omission to use its powers, not an abuse of them. An omission to run its trains might be an incident in the conduct of a railroad company engaged in an abuse of its powers, but does not alone constitute such abuse; and where that is not alleged either in form or substance the complaint cannot be sustained upon that ground.

The appellant, however, avers that it alleges in terms the violation of a statutory duty imposed upon the corporation by the law of its creation. The general railroad act has a section, chap. 140, Laws of 1850, § 36, which requires that “ every such corporation shall start and run their cars for the transportation of passengers and property at regular times to be fixed by public notice,” and the complaint alleges that on the 25th day of January, 1889, and for five days following the company did not so start and run its trains. It may be doubted whether this is anything more than the allegation of non- user in a different form. But it was claimed on the' argument that anv violation of a statutory duty makes a prima facie case for a decree of dissolution, and throws the burden of explanation and excuse upon the corporation assailed. We do not assent to that doctrine in such unguarded terms. If it be sound every railroad corporation in the state is prima facie liable to dissolution. Suppose this complaint had read that on the 25th day of January, 1889, the defendant company did not start- a train advertised to leave at eight o’clock until nine o’clock, whereby the public were delayed and injured. Nobody believes that on a demurrer admitting the facts a judgment of dissolution would follow, although a distinct statutory duty had been violated. The complaint must show on its face corporate acts or omissions such as not only put the company in the wrong but such as were either voluntary or negligent, and so material a disobedience of the public law as within established rules to warrant a judgment of dissolution. This complaint does neither. It does not charge that the omission to run trains for a few days was either voluntary or negligent, and the omission itself may have been involuntary and not. negligent, and in that event the coporation was guilty of no wrong and could not be dissolved. Every word of the complaint may be true and yet the defendant not be in fault or in the wrong, and it is not too much to require that such misconduct should be alleged when the remedy sought is corporate death.

It may be conceded, as the appellants claim, that where some act or omission is made a cause of forfeiture by the statute it is not necessary to aver that it was intentional or negligent, for it has been so decided. People v. Hillsdale & Chatham Turnpike Co., 23 Wend., 256. But the decision implies that the allegation is necessary where the act or omission relied on is not made by the statute a cause of dissolution. In that case it was said that the finding of neglect would be material as to a single act of non-feasance. In People v. Bristol & Rensselaerville Turnpike Co., 23 Wend., 236, the court quoted approvingly, from a case decided in Maryland, the statement, “ nor is it every non-user that will furnish sufficient ground for forfeiture; ” and the court added, “ to work a forfeiture there should be something wrong; and not only a wrong but one arising from wilful abuse or improper neglect.” Nothing of the kind was alleged in the complaint in this action nor any fact which necessarily implied actionable misconduct. Corporations in this state do not hold their charters by so slender a tenure, but have a right to require of those who seek their destruction specfic allegations of intentional or voluntary misconduct or such neglect as indicates an indifference to the demands of public duty, unless the act or omission is made by statute a cause of forfeiture irrespective of its intent or character.

But the complaint contains a second charge against the corporation. It alleges that the company “ did permit, require and allow the conductors and drivers and other employes of said defendant ” to work and labor more than ten hours within twelve consecutive hours for a day’s labor in violation of chap. 529 of the Laws of 1887. That statute by its terms imposes no duty upon the corporations described in it. In its first section it prescribes what shall constitute a day’s labor, and by its second section it makes it a misdemeanor for any officer or agent of such corporation to exact from any of its employes more than the specific labor. Both the prohibition and the punishment are explicitly put upon the officers and agents as individuals and not upon the company acting in its corporate capacity. The remedy for a violation of the statute is adequate and effectual since the corporation can only act through officers and agents and they are at once liable to punishment if the law is violated. The act of 1887 is neither in form nor substance an amendment of the general railroad act. It has reference to a particular class of railroad corporations, but not to all of them, and is not made an element of their charters. And the provision of § 1798 explicitly limits the action for a forfeiture to cases in which the corporation offends against an act “ by or under which it was created, altered or renewed, or an act amending the same.” The act of 1887 was neither. ' The defendant corporation was not created, altered or renewed under it, nor is it an amendment of the general railroad act under which the corporation was created. We fail to discover any ground upon which the complaint can be sustained.

The judgment should be affirmed, with costs.

All concur.


author: Landon, J.

text:
    Edgar T. Brackett, Adm’r, Resp’t, v. Chester Griswold, Impl’d, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Conspiracy—Evidence.
    The existence of a conspiracy and defendant’s connection with it must be shown before acts done in furtherance of it become admissible; at least a prima facie case must be established.

      2. Same.
    Records oí meetings of trustees, of whom defendant was one, at which, as claimed, improper action was taken to further a conspiracy, are not evidence against defendant of a fraudulent intent unless it be shown by aiBrmative evidence that such records were brought to his knowledge.
    Appeal from a judgment in favor of the plaintiff for $14,-958.20, entered upon a verdict of the jury upon the trial at the Essex circuit, and also from an order denying defendant’s motion made lipón tire minutes to set aside the verdict.
    The case is reported before : 1 Hun, 882; 68 M. Y, 294; 80 id., 128; 89 id., 122 ; 103 id., 425 ; 4 M. Y. State Rep., 219; 112 M. Y., 454; 21 M. Y. State Rep., 791. Owing to deaths and discontinuances the action now is by plaintiff as administrator of Bonnell, the original plaintiff, against Chester Griswold, as sole defendant.' In its present state, the action is one for fraud and deceit; through fraud upon the part of defendant and others in pursuance of a conspiracy originated before August 6, 1869, at which time the “Iron Mountain Co. of Lake Champlain ” was incorporated under chap. 40, of 1848. The plaintiff’s testator took, in 1870, for value, certain notes of the last named corporation, of which defendant was a trustee, from the Birmingham Iron Co., before maturity. The Birzbingham Co. had received the notes in payment for a furnace sold to the makers of the notes. Before plaintiff took the notes he, having little knowledge of the Iron Mountain Co., inquired about that corporation of Ellis, its treasurer, and the latter assured him that the notes would be paid promptly. They never were paid. Ellis was not a trustee or stockholder, and had only a salary as treasurer of $1,000 per year. The plaintiff alleged in his complaint, in brief, that the Iron Mountain Co. was gotten up by the original defendants, who conspii’ed to defraud the public by giving, by various methods described, a fictitious value to certain mineral lands of little value, and that he relied upon their representations, and upon the general reputation of the company, etc. The company went into bankruptcy in 1871. ’

      Wm. C. Holbrook, for appl’t; R. L. Hand, for resp’t.
   Landon, J.

At the close of the plaintiff’s testimony it was conceded by plaintiff’s counsel that all of the evidence offered on this trial was read from the printed case on the last appeal. The opinion of the court of appeals upon that case is found in 112 M. Y., 454. As no additional testimony was given by the plaintiff the question is presented whether within that opinion the plaintiff made out a case for the consideration of the jury. The court of appeals, speaking by Andrews, J., said: “The question in this case turns upon the point “ whether the evidence proved or tended to prove a cause of action against the defendant for false and fraudulent representations within the rules governing the common-law action for fraud and deceit.”

After stating the essential elements of such an action to be “representation, falsity, scienter, deception and injury,” and commenting thei’eon, the court declares: “In view of the settled principles governing the action for fraud and deceit by means of false pretences, there is upon the evidence presented in this case an insuper.able difficulty in maintaining the present judgment. There is no evidence that Bonnell in purchasing the notes relied upon any representations made by the defendant” Now upon the present trial, without any additional evidence, the jury were permitted to surmount this “ insuperable difficulty" and to find that Bonnell in purchasing the notes did rely upon representations made by the defendant

Upon the last, as upon the previous trial, the plaintiff undertook to show that the defendant and others entered into a conspiracy to form and did form the corporation upon the fictitious and fraudulent basis of large capital resources, and flattering prospects of ■abundant profits, and in furtherance thereof issued a false prospectus giving a glowing account of these pretended facts and advantages, and issued a false annual report, with the intent to cheat and defraud whoever should take its obligations. The jury upon the former trial and upon this have in substance found that this conspiracy was made. The notes in question, for the amount of which recovery is sought, were given by the Iron Mountain Company of Lake Champlain to the Birmingham Iron Company upon payment for a furnace, and were before maturity transferred by the Birmingham Iron Company to Bonnell, plaintiff’s intestate, in payment for coal which Bonnell sold to the Birmingham Iron Company. Before Bonnell consented to take the notes he inquired of his customer! the Birmingham Iron Company, whether the notes were good. The Birmingham Iron Company said they were, but referred him to George Ellis the treasurer of the maker, the Iron Mountain Company of lake Champlain. Bonnell sent his clerk to Ellis, and Ellis said that “ the company was fully responsible, that the notes were good and would be promptly paid at maturity.”

Bonnell relying upon this representation took the notes. The •court of appeals in response to the defendant’s contention that the •evidence was insufficient to support the finding against the defendant of a conspiracyv or defendant’s participation in it, said: “We deem it unnecessary to consider this contention. But this •does not relieve the case of the difficulty that, assuming the facts to be as found, the plaintiff’s case as proved fails upon the ground that Bonnell, when he took the notes, did not know of the illegal •conspiracy or false ’ representations, and consequently was not influenced thereby in making the purchase.” We fail to see how the conspiracy and the acts done in furtherance of it can relieve the case now of the same difficulty. The plaintiff’s case “ as proved ” failed to overcome that difficulty, and the case “ as proved ” is unchanged.

The court of appeals said “the case was submitted to the jury upon a false theory.” We understand this to mean that it was false because as proved there were insuperable difficulties to a recovery, which the trial court did not recognize, and which possibly might be obviated upon a new trial upon further evidence. -But the trial court evidently construed this to mean that upon the case “ as proved ” there might be a recovery upon a true theory. We can discover no ground for supposing that the court of appeals meant that the same facts would support any recovery upon any theory.

The theory adopted by the learned trial judge was that if Ellis was a eo-conspirator with the defendant in the fraudulent conspiracy, then his declaration to Bonnell that the company was fully responsible and that the notes were good and would be paid at maturity, was the declaration of the defendant. This question was not directly presented to the court of appeals, but that court remarks: “ Ellis is not charged ” (in the complaint meaning) “ to have been a co-conspirator, and it does not appear that he had any interest as stockholder or otherwise in the Iron Mountain Company.” We have examined the whole testimony with the view to discover upon what evidence the claim that Ellis was a co-conspirator rests, and we find only this : That after the corporation was organized the board of trustees, neither Ellis nor defendant being present, appointed Ellis treasurer ; that he was the cashier of a bank in Hew York city; that at a subsequent meeting of the executive committee, of which defendant was not a member,. Ellis’ salary was fixed at $1,000 per year ; that his name as treasurer was printed in the prospectus; that pursuant to the resolution of the board he subscribed his name as treasurer to certain obligations of the company.

Thus his only interest in the company was as its servant or officer on the promise of $1,000 salary for his services. There ÍS’ no evidence whatever of his knowledge of any scheme to defraud, or of his participation in any way in such a scheme other than can be derived from the fact that he accepted the office of treasurer, and discharged the duties incident to that office. The complaint names the alleged conspirators, but does not name Ellis as one ; he is not a party to the action; his representations to Bonnell were not made in any business transaction between the Iron Mountain Company and Bonnell; the complaint states, as the court of appeals take pains to point out, and assume as true, “ that Bonnell took the notes confiding in the general reputation of the company produced by the representations,” etc., made to the public at large, thus negativing by implication the recent suggestion that Ellis made any representations in furtherance of a conspiracy. The evidence does not tend to show that Ellis was a co-conspirator, and a verdict resting upon that hypothesis cannot be upheld. The evidence of the acts of the trustees, in which Ellis in no way participated, cannot implicate him in their conspiracy, if such there was, in the absence of all evidence tending to show that he ever participated in their acts or acquiesced in any conspiracy. There is no evidence that he had any knowledge whatever of any conspiracy. The theory of the trial court was that a conspiracy between defendant and Ellis, if established, would, notwithstanding the' ruling of the court of appeals, make the statement of Ellis to Bonnell’s clerk admissible. There is no evidence to support' that, theory, and hence the ground upon which the court of appeals based the ruling is unchanged. Ellis’ statement to Bonnell’s clerk was inadmissible. As the judgment rests upon that statement, the case fails. The court should have granted the motion for a nonsuit.

Again, the finding by the jury that the defendant entered into» a conspiracy is not supported by the evidence legitimately admissible to prove it. The acts of defendant’s co-trustees, in which defendant did not participate, or subsequently acquiesce in with knowledge of their purpose, are not admissible to prove against him the formation of a conspiracy, and his connection with it. They were res inter alios.

It may be admitted that the formation of a conspiracy, and defendant’s connection with it, may be proved by circumstantial evidence; and hence that in the attempt to prove the existence of a conspiracy a wide Tange of circumstances may properly be shown, and that in determining their relevancy much must be left to the discretion of the trial court The existence of the conspiracy, and the defendant’s connection with it, must be shown before the acts done in furtherance of it become admissible. This is a rule of stringency, but sometimes the exigencies of the case justify a departure from it McCarney v. People, 83 N. Y., 408; Place v. Minster, 65 id., 105; N. Y. Guar. & Ind. Co. v. Gleason, 78 id., 503; Cuyler v. McCartney, 40 id., 221. It is to be observed that -the court of appeals has held in this case that the conspiracy is not the gravamen of the action, and that it was unnecessary to plead it. It follows that the only proper purpose of proving it was to lay the foundation for the admission of the statement of .Ellis to Bonnell’s clerk, to the end that that statement should bind the defendant as his act, because made, as alleged, by one conspirator in furtherance of the objects of the conspiracy. It is .a general rule in civil cases that the court must submit to the jury the issues of fact upon which the plaintiff’s right to recover depends, but that the court must itself decide the questions of fact upon which only the admissibility of evidence depends. Therefore, before the court could receive the evidence of the statement of Ellis, it was its duty to decide whether a conspiracy had been proved against defendant and Ellis. At least a prima facie case should have been established. People v. Davis, 56 N. Y., 95,103; Newlin v. Lyon, 49 id., 661.

If such a: prima facie case was made out, then although the conspiracy was not the gravamen of the- action, and it was the duty ■of the court to decide as to the fact in the first instance, it is plain that the defendant, if the ■ question were subsequently submitted to the jury, would have no ground of complaint, since he might possibly secure from the jury a different finding from that made by the court. But unless a prima facie case was made out then, it is clear that none of the evidence touching the conspiracy ought to have been submitted to the jury. The acts and declarations of the other trustees may have tended to show a conspiracy between them, but nothing could tend to show defendant’s connection with it except his own conduct. Viewing his conduct, that is, his acts, declarations and omissions, in the light of the conduct of his .co-trustees, and we think a prima facie case of conspiracy against him was not established. The evidence tends, as we think, irresistibly to show that he was a boy, nominally associated with his father and the other trustees, not to participate in their counsels, but to swell their numbers and give his-father two votes.

As remarked in the opinion of the court of appeals : “ At the-time of these transactions he was a young man twenty-four years of age, employed by the firm of John A. Griswold & Co., at Troy, and had little if any knowledge of mining or mining property, and was made a trustee of the Iron Mountain Company without-his knowledge at the time and signed the report of January, 1870, at the request of his father, who was largely interested in mining property and in the manufacture and sale of iron.” We may add that the articles of association of the “Iron Mountain Company of Lake Champlain ” was filed in August, 1869 ; that the. defendant did not sign them that the first meeting of the board of trustees was held August 12, 1869, and defendant was not present ; that an executive committee was then appointed of which he was not then a member; that defendant’s first act in connection with the company was to attend a meeting of the board of trustees, December 15, 1869. Prior to that date the organization of the company, the purchase of its mining property for its entire-capital stock, the plan for the return and disposition of a portion of this stock, the issue of mortgage bonds, the employment of Ellis as treasurer, the plans for the operation of the business of the company, the making of the contract with the Birmingham Iron Company upon which the notes held by plaintiff were subsequently issued, were completed. At the meeting in question measures were taken to secure upon mortgage of real estate and a pledge of stock and bonds a loan of $35,000. Ho further act of the defendant is shown except to sign the annual reports prepared by counsel. These the defendant signed relying upon the representations of his father and Remington, a co-trustee and the active promoter of the enterprise. It is true that he had previously visited the property. He was adjudged to be liable for knowingly making a false report in violation of § 15 of chap. 40, Laws-1848, upon the evidence which is reproduced in this case. Blake-v. Griswold, 103 N. Y., 429; 4 N. Y. State Rep., 221. This adjudication was based upon the finding that he knew the mining property was not worth $2,000,000, and since all the capital stock of the company was issued for it, he knew the capital stock was not. fully paid in. This is very different from the proposition that in his absence and without consultation with him, and before he-knew that he was a trustee, the other trustees had with the intent to cheat the public formed a conspiracy, into which he subsequently entered with knowledge.

The records of the corporation are evidence of corporate acts, and so far as a legal liability devolves personally upon a trustee-because of corporate acts the records are competent evidence against him. But a conspiracy is the result of intentional wrong, and in the nature of things the wrong intent of a party can only be shown by his own acts or omissions indicating his actual purpose. Hence, these records of meetings in which the defendant-did not pai’ticipate cannot show his intent, unless it is shown by some affirmative evidence that they were at least brought to his-knowledge. Hence, also, the inference of a conspiracy which they are relied upon to justify, is no inference against the defendant. It was the duty of the court not only thus to decide but to give the proper effect to the decision. To submit the whole mass of evidence to the jury for them first to determine as to its competency, and next as to the effect of such as they should deem competent, was to relegate to them the decisions of questions both of the law and the fact, questions which in this case tax the ability of the judicial mind to keep properly separated ; of course the jury would confound both, and the more readily if they thought that the plaintiff had been injured.

The judgment must be reversed, with costs. It is apparent that a new trial cannot result in a more favorable presentation of the plaintiff’s case; we, therefore, do not grant a new trial, but dismiss the complaint on the merits, with costs.

Learned, P. J., and Mayham, J., concur.


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

text:
    John G. Greene et al., Resp’ts, v. Anthony Walton et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Corporations—Liability op directors—Laws 1875, chap. 267.
    Defendants are directors of a corporation organized under chap. 267, of 1875, which provided that the directors should be jointly and severally liable for all debts. A policy of insurance issued by the corporation provided that said directors should not either individually or as a body assume any liabilities personally, by reason of the issue of the policy. Meld, that the provision of the policy being repugnant to that of the statute of incorporation was void upon grounds of public policy.
    (Learned, P. J., dissents.)
    Appeal by defendants from a judgment of a county court, affirming a judgment of a justice’s court in favor of plaintiffs.

      Edward D. Cutler (A. P. Strong, of counsel), for app’lts; Edwin C. Angle; for resp’ts.
   Landon, J.

The policy provides that “ the directors of this society, either individually or as a body, shall not assume any liabilities personally by reason of the issuance of this certificate.”

The statute, § 8, chap. 267, Laws 1875, provides that “the directors * * * shall be jointly or severally liable for all debts, due from said society or corporation, contracted while they are trustees,” etc.

The provision of the policy is repugnant to the provision of the statute and is void upon grounds of public policy.

The statute forms part of the charter of the corporation and the corporation can make no contract which its charter forbids. Abbott v. Johnstown H. R. Co., 80 N. Y., 27.

The corporation has power to make contracts for itself in aid of its business, but it has no power to make contracts in behalf of its directors. Presumably the directors are competent to make' their own contracts. This contract is not for the benefit of the corporation, and it is not a contract between the plaintiffs and the defendants; nor is it one like Lawrence v. Fox, 20 N. Y., 268, in which the benefit which one party might secure to himself he can secure to another; for the corporation could not secure a like benefit for itself. Sound public policy requires that a corporation shall make no contract nullifying as to its directors the provisions of the organic act as to their personal liability. Otherwise a corporation might do business, not under the conditions prescribed by the statute to secure upright dealing, but under opposite conditions, and thus put at naught the wholesome restraints imposed by the sovereign power.

It is not necessary to decide that the directors could not by direct contract with the plaintiffs protect themselves from personal liability.

This contract was made while the defendants were trustees, and although it did not mature until after their successors were appointed, yet when it did mature it 'was the debt which was contracted while defendants were trustees.

The policy promised payment to plaintiffs of “ the net proceeds of an assessment of one per cent, to be levied upon all, as members of class A, not to exceed the sum of $100, to be assessed for according to the constitution and by-laws.”

No such “net proceeds of an assessment” have been paid. The reasonable construction of the policy is that such an assessment would produce something.

The provision in the policy: “ As this society is purely mutual the payment of assessments is not obligatory, but is the voluntary contribution of its members,” was not strictly true. Every policy holder had to pay his assessment or forfeit his policy. Such a penalty for non-payment might prove adequate to procure payment. The plaintiffs were entitled to recover something. It appears that an assessment was made; if there is any error it is that it was not shown that the net proceeds of the assessment amounted to $100. Whether that error affects the merits we do not know, and we ought not in order to promote the success of a scheme of insurance like this to be astute in inquiring, and hence under the rule applicable to appeals from justice’s courts we may affirm the judgment. Code Civ. Pro., § 3063.

Mayham, J., concurs.

Learned, P. J. (dissenting.)

This is an appeal from a judgment of the county court, affirming a judgment recovered by the plaintiffs before a justice of the peace.

The action is brought against the defendants as directors or managers of the “National Stock Owners’ Mutual Benefit & Indemnity Society,” upon a certain certificate or guarantee policy of insurance issued to plaintiffs by said society, by which it insured the life of a certain bay horse, “Tom," belonging to plaintiffs.

The agreement of the certificate is to pay plaintiffs the proceeds of an assessment of one per cent, to be levied on all .as members of class A, not to exceed $100.

One of the provisions of the certificate is as follows: “ As this society is purely mutual, the payment of assessments is not obligatory, but is the voluntary contribution of its members.”

Another is that the society agrees to deposit in the postoffice a notice of the assessment directed to each certificate holder, etc.

The last provision is: “ It is distinctly understood that the directors of this society, either individually or as a body, shall not assume any liability personally, by reason of this certificate.” The society was incorporated under chap. 267, Laws of 1875, and the alleged liability is under § 8.

The first question arises on the provision last cited, declaring that the directors shall not assume any personal liability by reason of the certificate. I see so reason to doubt the validity of that provision. It was competent for the plaintiffs, themselves members of this mutual society, to make such agreement as they pleased and to waive any right given to them by the statute. Phyfe v. Eimer, 45 N. Y., 102.

This is not a question as to thé validity or invalidity of by-laws. It is simply a question whether a person may not waive a right which is given him by statute. The liability imposed on directors by the statute is for the benefit solely of persons contracting with the company. No rule of public policy is violated when such persons waive that liability. The plaintiffs could release the defendants from liability after the death of the horse. We see no reason why they might not before.

The case of Richardson v. Thurber, 104 N. Y., 606; 6 N. Y. State Rep., 489, has no application. That simply decided that the neglect in an assignment to provide for the statutory preference to employes did not make the assignment void, but that the statute qualified the assignment. It is not suggested that an employe could never voluntarily release his right to a preference.

But it is said by plaintiffs that it was the duty of the society to make an assessment, and that the defendants are liable under § 8 because this was not done. Passing the previous objection, (which applies to this agreement also), I may notice that the alleged liability under § 8 is for “ debts, payable one year from the time they shall have been contracted.” These words do not include the obligation of the society to make an assessment. That is a duty, not a debt. It is not a thing payable but a thing to be performed. The complaint does not charge defendants with neglecting to perform the duty of making an assessment, but with the failure to pay a debt of the society arising on the certificate of insurance and the death of the horse.

As a matter of fact it is testified that there was an assessment in March, 1885, after proof of the loss of the horse; though the plaintiffs dp not .remember receiving notice thereof. Further, if the defendants neglected their duty in making this assessment it does not appear that any damage was caused; for it is especially provided in the certificate of insurance that “the payment of assessments is not obligatory, but is the voluntary contribution of its members.” It is impossible to infer therefore that the plaintiffs have suffered any loss. They themselves can request the members to contribute to compensate plaintiffs for their loss. The assessment, if made, would be nothing more than what they can do. By the terms of the certificate the assessment imposed no legal duty on the members. The truth is that the parties to the certificate seem to have intended that no one should be liable for anything; and they have succeeded; except as to the cost of litigation.

There are many other matters discussed at length and with ability by the counsel on each side. But it seems to us unnecessary, in the view we have taken, to express any opinion on such matters.

I think the judgments of the county court and of the justice of the peace should be reversed, with costs against plaintiffs.

Judgment affirmed, with costs.


text:
    Daniel Halloran, Resp’t, v. Enoch Carter et al., App’lts. The People ex rel. Daniel Halloran, Resp’t, v. The Common Council of the City of Kingston, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Election—Returns—Laws 1873, chap. 150.
    The charter of the city of Kingston, chap. 150, Laws of 1873, provides that after the polls close the inspectors of election shall forthwith canvass the vote and certify and declare the result, and shall file the statement of certificate on the same day, or the next, with the city clerk. The inspectors filed such a certificate the next day, electing H. - A day later two inspectors filed a further certificate showing a different result, and electing 0. Held, that this last certificate or paper was a nullity.
    S. Same—Injunction—Canvass.
    Under § 11 of said charter on the Monday following the election the common council must convene, and the statement of votes filed with the city clerk by the inspectors must be produced, and the council must forthwith determine and certify who were elected. Held, that the council must act upon and be guided by such returns as comply with the statute, but that an injunction, procured by II., the person who had succeeded according to the legal return, forbidding C., his opponent, to take his seat as an alderman, and forbidding the council from recognizing him as such, was improper. Such an injunction substitutes the judgment of the court for the result which the charter intended should be reached by the council upon a consideration of the legal returns. The injunction prevents the ministerial officers, who are to perform the bidding of the statute, from doing their duty.
    S. Same—Mandamus.
    The charter further provided that after the old common council had finished the canvass, and declared the result, it should be dissolved, and thd new common council should be organized. The old body declared in favor of 0., who appeared to be elected by the improper return, but no certificate to that effect was given him. By § 30 the (new) common council “shall be judge of the election and qualifications of its own members.” Held, that a mandamus requiring the common council to declare H. elected, and to recognize him as a member, was impropej;. The question as to which person was elected being contested and in doubt, the common council under § 30 are the judges, and their determination cannot be controlled by mandamus.

    Two appeals: in the first ease from an order of injunction granted by the special term forbidding the defendant, Carter, from taking his seat as a member of the common council of the city of Kingston, and forbidding the common council from taking any action for that purpose or recognizing him; in the second case, from an order awarding a writ of temporary mandamus, commanding the common council to declare the plaintiff and - relator, Daniel Halloran, elected alderman and to recognize him as a member of said common council. In the first case no affidavits were read by the defendants; in the second case the relator’s election is challenged. The defendant, Carter, does not appeal

      G. D. B. Hasbrouck, for app’lt; John Í. Clonan, for resp’t.
   Landon, J.

At the charter election, held in and for the city of Kingston on the 4th of March, 18-90, Daniel Halloran and Enoch Carter were competing candidates in the fourth ward for election to the office of alderman. That ward constituted one election district The charter, chap. 150, Laws 1872, § 10, provides that the polls of the election shall close at five o’clock in the afternoon, and then “the inspectors shall forthwith, without adjourning, canvass the votes received by them, and certify and declare the result, stating the number of votes given for each person for each office, and shall file such statement or certificate on the same day or the next with the city clerk.” At the close of the polls, and without adjourning, the inspectors, three in number, did canvass the votes, and make and sign a statement and certificate that “the whole number of votes cast for the office of alderman was 499, of which David Halloran received two hundred and forty-seven (247); of which Enoch Carter received two hundred and forty-five (245), and seven (7) scattered.” The inspectors filed-this statement with the city clerk the next day.

This statement is consistent in its details and is complete upon its face except as to the persons for whom the scattering votes were cast. On the 6th day of March, two of the inspectors made and filed with the city clerk a paper purporting to be a statement and certificate of their canvass of the votes given at such election for candidates for the office of alderman for the fourth ward. This paper recited that the whole number of votes cast was 499, of which said Carter received 247; Halloran 246; defective 2; blank 4. The certificate made the evening after the polls closed was the legal return; the paper made and filed two days later was a legal nullity, for the plain reason that the certificate was authorized and required by the statute and the paper was not; the paper, moreover, was an unofficial, voluntary impeachment of an official act and worthless for want of power in its signers. Hadley v. Mayor, 33 N. Y., 603. But the certificate was not of itself the final statutory evidence of Halloran’s election. The charter, § 11, provides that: “On the Monday next following the election for city officers the common council of the preceding year shall convene at ten o’clock in the forenoon at their usual place of meeting, and the statement of votes filed with the city clerk by the inspectors of election shall be produced by the clerk. The common council shall then forthwith determine, declare and certify who were duly elected at said election to the various offices hereinbefore named * * * which certificate shall be filed with the city clerk.” This determination and certificate are requisite to the completion of the legal title of the elect to the office itself People ex rel Conliss v. North, 72 N. Y., 124. That the common council intended to seat Carter is stated upon information and belief in the first case. That case cannot be weakened by borrowing from the second case the evidence establishing that intent. The common council of thé preceding year did convene at the time and place required and the clerk laid before them both certificate and paper. It will be observed that the eleventh section of the charter above quoted does not in express terms provide that the common council shall make their determination upon the returns filed and laid before them, as in the case cited; but we have no doubt such is its real meaning; otherwise the common council would have no fixed rule of procedure. The common council must act upon the returns made and filed in pursuance of the statute and not upon unauthorized papers attempted to be substantiated in their place. The common council appointed a committee of their body to canvass the returns and report.

It appears that this committee accepted the paper and rejected the certificate, and was about to report in favor of the election of Carter when the injunction order now under review was served upon the common council. It enjoined Carter from taking a seat as alderman, and the common council from seating him, or recognizing him as a member of that body and from taking any action to that end. The injunction went to the title of the office, and not to the record or procedure whereby the title was to be determined and certified. It in effect substituted the judgment of the court in place of the result which the statute intended should be developed and determined by a completion of the canvass. Doubtless the court could, in the exercise of preventive justice, if timely invoked, have enjoined the common council in their capacity as canvassers from acting upon the inspectors’ paper, and have required them to act upon the inspectors’ returns. As canvassers this common council were ministerial officers, that is, the instruments to do and perform the bidding of the statute, without obstructing that bidding by any opposing inclination of their own. Felt's case, 11 Abb., N. S., 203; People v. Canvassers of Wayne Co., 64 How, 334. As said in People v. Cook, 8 N. Y., 81, the strictness with which these boards should be held to the record before them is dictated by sound policy and enlightened wisdom.

The violation of duty cannot be the equivalent of performance of it. But the court in issuing its mandates must recall these officers to the discharge of omitted duties instead of disabling them from their performance. Here the injunction did not confine the canvassers to their duty, but suspended them in the performance of it. The injunction order, therefore, must be reversed.

As to the mandamus. This was issued after the common council which acted as a board of canvassers was dissolved, and the new common council was organized, notwithstanding the injunction order the old common council adopted a resolution declaring Carter elected, but no certificate of the election was ever made.

The charter of the city prescribes, § 11, that upon finishing the canvass and certifying its'result, “ The mayor and such aider-men as shall have been elected at the said last election shall thereupon take the oath of office * * * and the common council of the preceding year shall thereupon be dissolved,” and the new common council organized. The old common council was dissolved on the Monday in question, and the new one organized. The new common council does not appear by the charter to be authorized to resume as canvassers the unfinished canvass of the old. That is rendered unnecessary by § 30, which provides that: “ The common council shall * * * be judge of the election and qualifications of its own members.” The new common council instead of being, with respect to its own members, mere ministerial officers, become judges of their election. They are the judges of this disputed action. People ex rel. Hatzel v. Hall, 80 N. Y., 117.

The order awarding a mandamus required the common council to declare Halloran duly elected, and to recognize him as a member of their body. This was a mandate directing which way they should pronounce judgment. Mandamus does not thus dictate to officers acting judicially. People ex rel. Francis v. Common Council, 78 N. Y., 33; People ex rel. Millard v. Chapin, 104 N. Y., 96; 5 N. Y. State Rep., 588.

If Halloran had the certificate of election, the common council could, notwithstanding, inquire into the election and ascertain which candidate had actually received the highest number of votes. The opposing affidavits raise the question. As Halloran does not hold the certificate, as his title is disputed, as it is yet open to determination by the common council, the order must also fail because he lacks that clear legal right which is an essential prerequisite to the peremptory writ.

Without passing upon the other questions presented we conclude, upon the grounds stated, to reverse both orders.

Injunction order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order awarding peremptory writ of mandamus reversed, with fifty costs and disbursements, and motion denied, with ten dollars costs.

Learned, P. J., and Mayham, J., concur.


text:
    Patrick J. Brennan, Resp’t, v. Henry Beck and The Common Council of the City of Kingston, App’lt. Beck not appealing. The People ex rel. Patrick J. Brennan, Resp’t, v. The Common Council of the City of Kingston, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

   Upon above opinion, same order as above.

Learned, P. J., Landon and Mayham, JJ., concur.