text:
    The People, App’lt, v. Benjamin W. Winner, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    1. Criminal law—Indictment—False pretenses.
    An indictment for false pretenses should state, with reasonable certainty, the representations actually made, the falsity thereof, and the facts intended to he relied upon to establish s.icli falsity.

      2. Same—Motion to quash—When to be made.
    A motion to quash an indictment for insufficient averment of facts may be made at any stage of the proceeding.
    Appeal from a judgment dismissing an indictment

      David S. Hill (John W. Lyon, of counsel), for app’lt; T. F. Bush, for resp’t.
   Putnam, J.

—The defendant was indicted by the grand, jury of Sullivan county for the alleged offense of obtaining the signature of one James Schoonmaker to a written instrument by false pretenses. After charging the crime, the indictment stated the acts constituting the crime as follows: “The said Benjamin W. Winner, at said time and place, falsely pretended and stated to said James Schoonmaker that his real estate at Liberty, Sullivan county, New York, was free and clear of and from all liens and incumbrances by mortgage or otherwise, which said false pretense or pretenses were made for the purpose of inducing said James Schoonmaker to sign his name and indorse, for the use and accommodation of said Benjamin W. Winner, a certain negotiable promissory note, made and executed by said Benjamin W. Winner, bearing date September 8, 1890, for the sum of six hundred dollars, payable one month after date, at the Merchants and Manufacturers’ National Bank, located at Middletown, N. Y., and by color or aid of said false pretenses, so made, as aforesaid, by the said Benjamin W. Winner, the said James Schoonmaker, believing them to be true, did sign his name on the back of said note, as an indorser thereof, by reason whereof he was made to suffer great financial loss and damage.”

■ The case came on for trial at the court of sessions of said county. After the jury were empaneled and sworn, and presumably after the defendant had pleaded, a motion to quash the indictment on the ground that it did not allege facts sufficient to constitute a crime was entertained by the court, and granted, and from the judgment of dismissal of the indictment the people appeal.

It is plain that the indictment in question failed to apprise the defendant of what he should be prepared to answer on the trial. It recites that he falsely pretended and stated that his real estate was free and clear of incumbrances. But it does not state in what regard such representations were false; whether the real estate was incumbered by a mortgage, or judgment, or mechanic’s lien, or otherwise. Had it alleged that the premises in question .were incumbered by a mortgage, describing it, the defendant on the trial, perhaps, could have shown that the mortgage was satisfied. If the indictment had stated that the incumbrance was a judgment, defendant might have been able to show that the judgment had been reversed. If the incumbrance had been stated as a mechanic’s lien, defendant possibly could have shown that such lien was invalid. As the indictment was drawn, however, the respondent was'compelled to enter into the trial without being apprised of the real charge upon which the people intended to rely. We think the indictment should have stated with reasonable certainty the representations actually made, the falsity thereof, and the facts intended to be relied upon to establish such falsi ty. It has been held that an “ indictment upon a statute must state all such facts and circumstances as constitute the statute offense, so as to bring the party indicted precisely within the provisions of the statute.” People v. Allen, 5 Denio, 76-79; People ex rel. Phelps v. Court of Oyer and Terminer, 83 N. Y. 438-448. In the opinion in People v. Stone, 9 Wend. 182-191, the following language is used : “ It is not necessary to negative all the pretenses set forth in the indictment. Those relied upon by the pleader, and which he expects to prove were false, must be specifically and directly negatived. It is not sufficient to charge that the defendant falsely pretended, etc., setting forth the means used, and then to aver that, by means of such false pretenses, he obtained the property ; but the pleader must go on, as in an assignment of perjury, and falsify, by specific and distinct averments, such of the pretenses as he intends to prove upon the trial were used and were false. 3 Chit. Cr. Law, 762, 999; 2 Chit. Cr. Law, 163, 311; Rex v. Perrott, 2 Maule & S. 379. The object of this specification is to give notice to the defendant of what he is to come prepared to answer.”

The same doctrine was stated in People v. Miller, 2 Parker, Cr. Rep. 197, and in Barber v. People, 17 Hun, 366. It will be seen that, under the doctrine laid down in the above cases, the indictment under consideration was clearly defective and insufficient. It failed to falsify, by specific and distinct averments, such of the pretenses as the pleader intended to prove on the trial were made and were false. The doctrine settled by the decisions above referred to, and many other similar cases, has not been abrogated by the Code of Criminal Procedure. That act requires “ a plain and concise statement of the acts constituting the crime.” In People v. Dumar, 106 N. Y. 502-512 ; 11 St. Rep. 19, it is held that: “ The general principle of pleading has not been substantially changed. Under either system, an offense consists of certain acts done or omitted under certain circumstances, and under neither is any indictment sufficient which does not accurately and clearly allege all the ingredients of which the offense is composed, so as to bring the accused within the true meaning and intent of the statute defining the offense. Under the former, this end was secured by rules formulated and applied by the courts through long series of decisions; under the latter, it is made imperative by the provisions of the statute.”

To the same effect, see,'also, People v. Albow, 140 N. Y. 130-134 ; 55 St. Rep. 253. Under the above authorities, it does not require discussion to show that the indictment in question was insufficient, and we conclude, therefore, that the court below did not err in so holding.

But the appellant insists that it was error for the court below to grant the motion to quash the indictment after the defendant had pleaded, and after the case had come on for trial before the jury; that the only proper course for defendant, at that time, was to wait until the evidence had been submitted, and then move for a dismissal. And the appellant cites § 315 of the Code of Criminal Procedure. That section, we think, must be deemed to apply to a motion to dismiss on the grounds authorized by § 313; that is, when an indictment is not indorsed and presented as prescribed by §§ 268-272 of the said Code, or when a person has been permitted to be present during the session of the grand jury where the charge embraced in the indictment was under consideration. Certainly, an indictment being insufficient, —not alleging facts sufficient to constitute a crime, and under which a defendant could not be convicted,—the court before whom such defendant is brought for trial should possess the right, at any stage of tile proceedings, to grant a motion to quash it. Nor can the people be injured by such a disposition of the case. We think a motion to quash or set aside an indictment, upon a ground which would be fatal to a verdicf, may be made at any time. The court should not be compelled to spend time in a trial which must be futile. See Abb. Tr. Brief, § 51; People v. Davis, 56 N. Y. 95-100; People v. Judson, 11 Daly, 1; Code Cr. Pro. § 331.

We, therefore, conclude that the judgment should be affirmed.

All concur.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Stephen Smith et al., as Executors, Etc., App’lts, v. Town of Greenwich, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Limitation—Town bonds—Coupons.
    An action on the interest coupons, detached from void bonds issued by a town for money advanced, is barred after six years.
    Appeal from a judgment dismissing the complaint.

      Brainerd Tolles (Sidney Smith, of counsel), for app’lts ; Charles C. Van Kirk, for resp’t.
   Putnam, J.

—The coupons described in the complaint were detached from bonds issued by the town of Greenwich, Washington county, N. Y., between April 1 and May 12, 1871, pursuant to the provisions of chapter 907 of the Laws of 1869, and prior to the amendment thereof contained in chapter 925 of the Laws of 187L The bonds from which said coupons were taken were made payable in twenty years from their date, instead of thirty years, as provided in the statute. Under the decision of the court of appeals in Hoag v. Town of Greenwich, 133 N. Y. 152 ; 44 St. Rep. 519, the said bonds, as such, were void as “ bonds, as vouchers or securities.” But the agents of the town, who issued them, had the power to borrow the money which in good faith was advanced thereon; and although they issued unauthorized securities, yet the town, in the' transaction, became liable on account of the money advanced on the faith of the bonds, on an implied contract to repay the loan at the- time when by the statute the bond should have been make payable. In the case cited, Judge Finch uses the following language.: V I think, therefore, that we should hold that the town of Greenwich is indebted to the plaintiff in the sum * * * for which the void bonds were executed, payable at the end of thirty years from the date of the loan, with interest thereon, payable semi-annually, and should recover judgment for so much of the interest unpaid and in arrears as was due and payable at the commencement of the action.

It follows, therefore, that the bonds from which plaintiffs’ coupons were taken are not valid securities, but the town being liable for the money advanced thereon, on an implied contract to repay the same, plaintiffs, under the doctrine established in the case above cited, were entitled to recover on said coupons unless their claim was barred by the statute of limitations. If the town bonds in question had been valid securities, the coupons detached therefrom probably would have been deemed specialties, like the securities from which they were taken, and in an action thereon a twenty-year limitation would have applied. It is said by Judge Earl in Bailey v. Co. of Buchanan, 115 N. Y. 297-301; 26 St. Rep. 128 : The past-due coupons, payable to bearer, when detached from the bonds, are for many purposes independent, separate instruments. They may be negotiated, and may be sued upon by the holder without the production of the bonds. * * * But the coupons, nevertheless, always have some relation to the bonds. Their force and effect and character may be determined by reference to the bonds. They are secured by the same mortgage, and, although unsealed, are specialties, like the bonds, and are governed by the same statute of limitations which is applicable to the bonds.”

See, also, City of Lexington v. Butler, 14 Wall. 282-292; Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y. 481; 49 S. Rep. 840; McClelland v. Norfork Southern Railroad Co., 110 N. Y. 469 ; 18 St. Rep. 344. But in the case under consideration there were in fact no bonds. The instruments so called were void. The indebtedness was not secured by any writing, but was merely an implied obligation arising on account of money paid and advanced. While the bonds, however, were void, plaintiffs brought this action, upon the assumption that the coupons for semiannual interest, payable to bearer, attached thereto, were valid, and the transfer of those mentioned in the complaint to their testator gave them a right of action thereon. Assuming that this assumption is correct, it then appears that the defendant was indebted to the holders of the void bonds for the amount thereof, payable at the end of thirty years from their date, with semiannual interest, and also to the plaintiffs for interest on said indebtedness accruing in 1874, which accrued interest had been transferred to the plaintiffs’ testator by a sale to him of the coupons described in the complaint. After said plaintiffs or their testator could at any time have maintained an action on said coupons, a satisfaction or payment of the principal debt would not have extinguished such right. A claim existed, on account of said loan to the town of Greenwich, in favor of the holders of the bonds, for the principal sum loaned, and a separate demand for the accrued semiannual interest to the holders of the coupons. City v. Lamson, 9 Wall. 477 ; Bailey v. Co. of Buchanan, 115 N. Y. 297—301; 26 St. Rep. 128.

It is alleged in the answers, to which demurrers were interposed, that ‘plaintiffs’ cause of action did not accrue within six oír ten years prior to the commencement of the suit. The allegations contained in said answers may be deemed an averment that, the coupons were transferred to plaintiffs’ testator over six or ten. years prior to the commencement of the action. When so- transferred, a cause of action at once accrued on the Coupons, in favor of the deceased. It was a cause of action on a demand separate from that of the persons to whom the town was indebted for' the principal sum loaned. The cause of action so transferred by the sale of the coupons was not one on a sealed instrument, because the loan was not secured by a valid or legal bond. Plaintiffs’ claim on the coupons was like one on an unsealed note. The action thereon, we think, was barred after the expiration of six years.

The learned counsel for the appellants apparently assumes; that the bonds in question, which have been held by the court of appeals void as securities-, should be deemed sealed instruments in this action, with the coupons attached thereto, as far as necessary to give such coupons the character of specialties. As we understand the decision of the court of appeals in Hoag v. Town of Greenwich, supra, the bonds issued prior to May 12, 1871, by the town of Greenwich, were absolutely void. They are not to be regarded as sealed instruments or securities for any purpose. Hence, the coupons transferred to plaintiffs’ testator were not specialties. They were simply written instruments providing for the payment of semiannual interest upon a loan to the town for which no valid evidence of debt had ever been executed. If the sum loaned had been payable, by the terms of the statute, in one year, instead of thirty, an action to recover the principal sum would have been barred by the statute of limitations after the lapse of seven years. We conclude that, the principal sum loaned to the town of Greenwich not being secured by any legal bonds, the coupons for the semiannual interest thereon, transferred to deceased, cannot be deemed sealed instruments, and hence the six-year limitation applies.

The judgment should be affirmed, with costs.

All concur.


text:
    James H. Manning et al., App’lts, v. Lucie R. Cassidy et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Injunction—Undertaking.
    Discontinuance against defendant's will is a determination that plaintiff had no right to the injunction, and entitles defendant to proceed for damages on the undertaking.
    Appeal from an order appointing a referee.

      John A. Delehanty, for app’lts; Hale & Bulkeley (Albert C. Tennant, of counsel), for resp’ts.
   Putnam, J.

—This is an appeal from an order appointing a referee to ascertain and determine the damages sustained by defendants by reason of the temporary injunction granted on the application of the plaintiffs on the 12th day of April, 1893. The .action was brought to restrain certain of the defendants from voting at the .election of the Argus Company, to declare void certain sales of the stock oí the said company, and for other relief. The plaintiffs served a notice of motion on defendants on April 12, 1893, for a temporary injunction during the pendency of the action to be heard at a special term in Albany on the 25th day of April, 1893, together with a preliminary injunction granted on the 11th day of April, 1893, which enjoined respondents, as prayed for in the complaint, until the hearing and decision of said motion. It does not appear that the motion so noticed for the 25th day of A pril, 1893, was ever made. On obtaining said preliminary injunction order of the 11th day of April, plaintiffs made and filed the usual undertaking, conditioned to pay defendants such damage, not exceeding the sum of $2,000, as they might sustain by reason of such injunction, if the court should finally decide that the plaintiffs were not entitled thereto. Said preliminary injunction was, on July 8, 1893, on motion of defendants’ attorney, and on a stipulation signed by the parties, vacated by the court. Afterwards, on the motion of plaintiffs, the defendants objecting, the court granted an order of discontinuance, which contained the following provisions, viz.: “ It is ordered that this action be, and the same is hereby discontinued, as to said defendants, upon the payment by the plaintiffs to said defendants of their taxable costs herein. Such discontinuance, however, to be without prejudice to any right the said defendants may have to recover damages upon the said undertaking, or to enforce the same as provided in said undertaking, or in any legal manner; said costs to be paid within ten days after the same shall be taxed.’’

In the undertaking by plaintiffs, it is provided that .¡hey shall pay to the defendants enjoined such damages, not exceeding the sum of $2,000, as said defendants may sustain by reason of such injunction, if the court shall finally decide that the said plaintiffs were not entitled thereto. If the court has so decided, the order of reference from which the appeal was taken should be sustained. It seems to be well settled that “ the granting of an order of discontinuance, where a motion therefor is opposed, is an adjudication that the plaintiff was not entitled to the injunction issued in the action so as to permit a reference to ascertain the damages sustained by the defendant by reason of such injunction.” Amberg v. Kramer, 29 St. Rep. 758; 8 N. Y. Supp. 821; Wynkoop v Van Buren, 62 Hun, 500; 45 St. Rep. 325; Pacific Mail Steamship Co. v. Toel, 85 N. Y. 646. These authorities hold that an order of discontinuance entered ex parte, or when the defendant opposes, is equivalent to a determination that the plaintiff was not entitled to an injunction, and an order of reference to computa damages can be properly granted. The above cases are so similar to the one under consideration that any discussion of it is unnecessary.

The stipulation signed by the respective parties, and recited in the order of July 8th, vacating the temporary injunction, is not contained in the case. No reason is stated, however, and none can be given, why such a stipulation should interfere with defendants’ right to damages sustained prior thereto, unless the paper contained an agreement to waive damages, and no such waiver is shown or claimed. We think that the authorities cited by the learned counsel for the appellants do not conflict with those above referred to. The case of Palmer v. Foley, 71 N. Y. 106, was an action in which the plaintiff’s title to the office of chamberlain of the city of New York was involved. Under an act of the legislature passed during the pendency of the action, plaintiff was deposed from the said office. Thereupon leave was granted to defendant to put in a supplemental answer, setting up the statute and plaintiff’s removal thereunder. Thereafter, on the stipulation and consent of the defendant, and on payment of $100, an order of discontinuance was made. It will be observed that in the case under consideration the defendants objected to the discontinuance while in Palmer v. Foley the order was entered by consent. In that case it was held that there was no judicial determination as to what were the rights of the parties in reference to the injunction at the time of the commencement of the suit, because the discontinuance was presumably in consequence of the legislative act subsequent to the granting of the injunction, and also the order of discontinuance was granted on the written consent of the defendant, with no saving of his right to damages by virtue of the undertaking. In this case defendants did not consent to the order of discontinuance, and in the order their right to damages was preserved. The distinction between the two cases is apparent. In Johnson v. Elwood, 82 N. Y. 362, the defendant died during the pendency of the action, and it was held that the action abated by his death, that the cause of action did not survive, that the court had no authority to direct a discontinuance, or to make any other order than that the action be deemed.abated by the death of the defendant, and hence there had been no judicial determination as to the right of the plaintiff to the injunction originally. In Drummond v. Husson, 14 N. Y. 60, an action was brought on an undertaking on an appeal, which contained a covenant that, if the judgment appealed from, or any part thereof, be affirmed, the appellant would pay the amount directed to be paid. The appeal was dismissed. It was held that the language in the undertaking did not apply to a case of dismissal of the appeal; that the dismissal of an appeal from want of prosecution was clearly not an affirmance of the judgment.

We conclude, therefore, that, under the authorities first above cited, the order in question was properly granted, and should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., not acting.


text:
    Calvin Robinson, Resp’t, v. Town of Fowler, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Towns—Liabilities.
    Town is not liable for personal injuries, caused by the negligence of the highway commissioner, to a workman engaged by him to repair a road.
    Appeal from a judgment in favor of plaintiff.

      V. P. Abbott, for app’lt; Levi H. Brown, for resp’t.
   Putnam, J.

—This action was brought to recover damages for injuries received by plaintiff in May, 1891, while at work under the direction of Aschel 0. Johnson, the highway commissioner elected for the town of Fowler, in blasting rock for the purpose ■of widening the roadway in one of the highways of said town, and making it of sufficient width to enable vehicles to pass each -other. Johnson employed plaintiff and other workmen in such blasting. The testimony also shows that he hired one Abner Wight to superintend the work; that Wight was inexperienced and unskilled in blasting with dynamite, which explosive was used in the work in question. On the 28th of May, 1891, several blasts were set off. An inspection should have been directed by Wight after the blast to determine whether the explosion was complete, but no such inspection was made. The next morning Wight ordered plaintiff and one Harmon to drill deeper a hole that had been made the day before. Obeying such direction, and in ignorance that there was any dynamite in the hole, plaintiff and Harmon commenced work, Harmon holding the drill, and Wight and plaintiff striking it. At the first heavy blow an explosion occurred, and plaintiff received the injuries for which the action is brought. We are not prepared to say that, if an action Can be maintained against a town for injuries received by one employed by a commissioner of highways to aid in repairing a road, in consequence of the negligent manner in which said work is conducted, the trial court erred in submitting to the jury the question whether or not the highway commissioner of the town of Fowler performed the duty he owed to plaintiff, as an employer, to select competent workmen to superintend the work of blasting with dynamite. There was testimony from which the jury could have properly found that the commissioner employed Wight to superintend the job, and that he was incompetent. The master owes the duty to his employe to intrust the handling of dangerous material only to competent and careful workmen. Stewart v. N. Y. O. & W. R. R. Co., 28 St. Rep. 215; 8 N. Y. Supp. 19; Mann v. D. & H. Canal Co., 91 N. Y. 496-500. In the view we have taken of the case, however, we do not deem it necessary to discuss this question.

On the trial, after the case had been opened to the jury by the ■plaintiff, the defendant moved for a nonsuit on the ground “ that facts sufficient are not stated to constitute a cause of action against the town,” The trial judge remarked: “ The acts of 1881 and .1890 do not create a liability, but at the same time they do impose such duties upon the municipality, the town, that the town may lawfully take charge of and improve the highways. And if the town undertakes to do that, it must be held to the same accountability that an individual or a corporation would be if it undertook such work. It becomes one of the incidental duties of the town, which, in the exercise of its corporate powers, it may perform. Therefore, if the town undertakes to do this work, it must be held to the same rule as an individual or a corporation."

And the case was tried and submitted to the jury by the learned trial judge on the assumption that the work of blasting, in the prosecution of which the plaintiff was injured, was done by the town of Fowler, and not by the highway commissioner of the town. In this assumption, we think, the court below erred: First. There was not sufficient evidence given on the trial to show that the blasting done under the direction of Highway Commissioner Johnson at Popple Hill was work undertaken by the defendant. The testimony merely shows that Johnson, as highway commissioner, posted the usual notices in regard to the appropriations he proposed to ask for at the town meeting, and that such appropriations were made by the electors of the town. This has always been the course adopted in the raising of money for the repairing of highways and bridges in towns, and the town, by making the appropriations asked for by the highway commissioner, in order that he may do the ■work he is called upon to perform on roads and bridges, cannot be deemed a party who prosecutes the work afterwards ordered by the commissioner. Second. We are of the opinion that the town had no power to do the work in question. The blasting at Popple Hill was done to repair a highway in said town. The roadway" was too narrow, and to make it wider, so that wagons could pass each other, this job of blasting was undertaken. It has been deemed well settled that a town, in its corporate capacity, has no control over and is under no obligation to keep highways in repair. People ex rel. Loomis v. Board of Town Auditors, 75 N. Y. 316; People ex rel. Van Keuren v. Town Auditors, 74 id. 310-315. In the case last cited, Andrews, J., uses the following language: “ Under our system, no corporate duty is imposed upon towns in respect to the care, superintendence, or regulation of highways within their limits. Commissioners of highways have, by the statute, the care and superintendence of highways (1 Rev. St. 501, § 1), and in the administration of the highway system they are independent public officers, exercising public powers, and charged with public duties specially prescribed by law.”

We are not aware that any change has been made in regard to the control or repairing or highways in towns since the above cases were decided. It is true that, by chapter 700 of the Laws of 1881, towns were made liable for damages suffered by any person by reason of defective highways or bridges in cases where the commissioners of highways in such towns were before liable. This statute was substantially re-enacted in chapter' 568, Laws 1890, § 15. But these statutes did not give to towns the right to repair highways or bridges, or divest the commissioners of highways of control thereof. Bidwell v. Town of Murray, 40 Hun, 190-193 ; Rhines v. Town of Royalton, 11 St. Rep. 231; Clapper v. Town of Waterford, 131 N. Y. 382-389 ; 43 St. Rep. 316. In the case last cited, Judge O’Brien remarked: “The act of 1881 has not changed the powers or duties of the commissioner of highways. He still has charge of the roads and bridges in the town, and it is his duty to keep them in repair. The town is liable only when negligence on the part of the commissioner is shown, and he is not guilty of negligence in omitting to make repairs when he has no funds in his hands.”

We conclude that the work of repairing the highway at Popple Hill, in the prosecution of which the plaintiff was injured, was done by Johnson, the commissioner of highways of the town of Fowler, and that it was work the defendant had no power to perform, and, as a matter of act, did not undertake to do. It is not claimed by the learned counsel for the respondent that the action could be maintained under the provisions contained it the acts of 1881 or 1890, above referred to. Those statutes only give a right of action for damages to persons or property occasioned by a defective highway. This action was brought for alleged negligence of the town, its agents or servants, while engaged in the work of repairing the highway. It was held by the trial court that the acts of 1881 and 1890 imposed such duties and liabilities upon the town, in reference to the highways, that it could lawfully take charge of and improve them. The decisions in Clapper v. Town of Waterford, supra, and other cases cited, seem to render a discussion of this proposition unnecessary. In Bidwell v. Town of Murray, supra, the following language is used : “The statute in question does not change the relation of the town to the highways of the town, or to the commissioner, so far as relates to the control and supervision of them, and the duty to keep them in repair. That duty is still upon those officers as such, and not as agents of the town, to which no corporate power is given in that respect.”

The counsel for the respondent calls our attention to the fact that charpter 569 of the Laws of 1890 declares the town a municipal corporation, and § 182 of said act provides that any action for any liability of the town, for acts or omissions of its town officers, shall be in the name of the town. But it will be observed that, the section referred to only authorizes such an action where there is a liability of the town. The section in question of the act of 1890, under principles that are well settled, cannot be deemed to enlarge the liability of towns for the acts of town officers, except as plainly declared in the statute. Our attention is also called to numerous acts passed by the legislature of the state by which the powers and liabilities of towns are affected or increased. But such statutes cannot be deemed to enlarge or increase the liabilities of towns except to the extent specifically prescribed therein. It is well settled “that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used iu the statutes absolutely requires.” Fitzgerald v. Quann, 109 N. Y. 441-445 ; 16 St. Rep. 395. We are not referred to any statute that confers upon towns the right to engage in the work of repairing the highways and bridges, or which divests the commissioners of highways of towns of their power ' over the roads therein.

We conclude, therefore, that the work of repairing the highway at Popple Hill was not work done by fhe defendant, but was prosecuted by Johnson, the highway commissioner; that for his negligence while engaged on that work an action cannot bo maintained against the town. It follows that defendant’s motion for a dismissal of the complaint on the opening of the case by plaintiff should have been granted, and hence that the judgment should be reversed, and a new trial granted; costs to abide the event.

Mayham, P. J., concurs; Herrick, J., concurs in result.


author: Dykman, J.

text:
    In the Matter of the Estate of Mary Ann Harvey, Deceased. In the Matter of John F. James et al., Executors, etc. Francis M. Potter, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Will—Construction— Charge.
    Where testatrix knew that she had already disposed of all her personal property, and that the legacies could only be paid from the proceeds of the real estate, they are charged upon such real estate, notwithstanding the absence of an expressed intention so to charge them.

      2. Same—Presumption.
    Where the will was made about a year before her death, the presumption is in favor of no change in the condition of her property.
    Appeal from a decree directing distribution of the estate.

      Wilson & Wallis (William G. Wilson, of counsel), for app’lt; William Allaire Shortt, for resp’t Ellen J. King; H. C. Mackrell, for resp’t James Campbell; John B. Lord, for resp’t Janet Campbell; Benjamin S. Morehouse, for resp’ts the executors.
   Dykman, J.

—This is an appeal from the decree of the surrogate of Kings county directing the distribution of the estate of Mary Ann Harvey, deceased. By the last will and testament of the testatrix, she first gives to nine persons legacies amounting in the aggregate to the sum of $4,000. Then follow these provisions :

“ I have two thousand four hundred dollars in the Metropolitan Gas-Light Company, Brooklyn. One thousand dollars to go to my niece, Lizzie Lawback, of Hew York, and one thousand dollars to her sister, Mary Ann Kearns, of Chicago, Illinois; four hundred dollars to their brother, John A. McDonald. If tny husband survives me, these legacies are to be paid after his death, he having the interest during his life. My husband, James Harvey, shall also have the use of the house we now occupy, in Lafayette avenue, Fort Hamilton, during his lifetime. If not wishing to occupy it, can sell it, if he finds it advantageous to do so, but it shall not be rented. If sold, the money to be put at interest; the principal to go to my heirs at his death. I hereby nominate, constitute, and appoint John F. James and James Campbell, of the city of Brooklyn, executors of this, my last will and testament, hereby revoking all former or other will or wills by me at any time heretofore made; and I do hereby authorize and empower my said executors to sell and dispose of all or any part of my real estate, if they shall deem, it best for the interest of my estate, and to execute, acknowledge, and deliver all proper deed or deeds for conveyance of same. In witness whereof, I have hereunto set my hand and seal this 29th day of December, one thousand eight hundred and eighty-eight.”

The only personal property which the testatrix left was the stock of the Metropolitan Gas Company, of the par value of $2,400, and the watch and chain. She had no other property, except the house and lot referred to in the will, and that has been sold by the executors for $4,000, under .the power of sale contained in the will. As, therefore, the gas stock and the watch and chain were specifically bequeathed, there remains no fund for the payment of the nine legacies, except the proceeds of the sale of the real property, which is just sufficient for their payment. We have, therefore, to determine whether the $4,000 of legacies is to be paid out of the proceeds of the realty, or remain unpaid, and that fund be distributhed among the heirs at law of the deceased. The portion of the will invoked in the contention for the distribution to the heirs is the clause which defers the payment of the legacies until the death of the husband, gives the interest thereon to him during his life, gives him the use of the house during his life, and closes thus: “ If not wishing to occupy it, can sell it, if he finds it advantageous to do so, but it shall not be rented. If sold, the money to be put to interest; the principal to go to my heirs at his death.”

This last clause is quite inartificial, and inconsistent with the previous and subsequent provisions of the will. For instance, it would seem to confer upon the husband a power to sell the house, when in a subsequent clause the will confers a full and valid power of sale of the real éstate upon the executors. So in íespect to the statement that the principal arising from the house shall go to the heirs of the testatrix after the death of her husband. If that clause is to be construed literally and technically, then the general legacies will all remain unpaid. As this is the only place and time that the term is used, it will be well to ascertain the sense in which it is employed. In strictness of legal nomenclature, the term “ heir,” in this country and in England, where the common law prevails, signifies one upon whom the law casts his ancestor’s estate immediately upon the ancestor’s death. Under the civil law, however, there were two sorts of heirs, called respectively, “testamentary heirs” and “heirs at law.” Dom. Civ. Law, pt. 2, bk. 1, tit. 1, art. 2, § 1. In common parlance, and ordinary phrase, the term “ heir ” is often employed to denote a person who acquires or may receive property, either personaly>r real, by right of blood relation. What did the testatrix mean by the use of the term here? Did she intend to designate her heirs at law ás the recipients of the fund arising from the sale of her house, to the exclusion' of her relatives to whom she had given legacies, or did she use that word to emphasize her design that the latter class should not take their legacies until after the death of her husband, and then the principal should go to them ? If we assume the former, then we must infer that she deliberately gave nine different legacies to her relatives, and then subsequently gave to other persons the only property from which such legacies could be paid. Such an inference would be contrary, not only to natural reason and goodsense, but also to all the authorities on the subject. We cannot impute to this testatrix a deliberate intention of making bequests which she knew could never be paid. McCorn v. McCorn, 100 N. Y. 511. If, however, we determine the intention of the testatrix to have been that the legacies should be paid, and only the residue of the proceeds of the house, if any, should go to the heirs, then all is harmonious. Then the legacies are a charge upon the land, and the testatrix has given away by her will all the property she possessed. The following cases are authorities in favor of such conclusions : Hiscock v. Fulton, 43 St. Rep. 738; 17 N. Y. Supp. 408 ; McCorn v. McCorn, 100 N. Y. 511; Am. Bap. Home M. Society v. Foote, 52 Hun, 310; 23 St. Rep. 462; Scott v. Stebbins, 91 N. Y. 605; Hogan v. Kavanaugh, 138 N. Y. 417; 52 St. Rep. 884.

'It is claimed by the respondents, however, that it was necessary to show affirmatively, by positive proof, that the deficiency of personal property existed at the time of the execution of the will. The will was made about a year before it was proven. The testatrix specified the stock which she had, her watch and chain, and her house; and we think it a fair presumption that she knew what she had, and specified all her property. The presumption is in favor of a continuance of her condition as to property. The scheme of this will is obvious. The testatrix was a woman with a small estate. She knew precisely what property she had, for she described it with accuracy in her will. She gave nine legacies to nine of her relatives, which amounted to $4,000. The legacies were doubtless graded, by design, so as to amount to that sum. She then gave away all the personal property she had, by specific legacies. She knew, therefore, that the general legacies could not be paid from her personal property. Then, in a clause of the will in which she gave her husband the interest on the legacies during his life, and the right to elect whether he would use .the house for his residence, or consent to a sale of the same, and take the use of the proceeds, she says the principal is to go to her heirs at his death. Now, the respondents claim that the word “heirs,” as here used, changes the scheme of the will in relation to. the general legacies, and gives the fund of $4,000 to the heirs at law of the testatrix, and leaves the legacies unpaid. If that conclusion was the necessary result of the use of the word “heir,” we might be obliged to adopt it. But it is not. We have already seen that the word might have been used to designate the collateral relatives of the testatrix to whom she had bequeathed the legacies. That view is much more natural than the conclusion that she intended to give to others the only property she had, undisposed of, from which they could be paid. After all, we do not attach much importance to the use of the term “heirs” as it is here employed. It may as well' mean those who were interested in the estate by reason of the provisions of the will. Hoyt v. Hoyt, 85 N.Y. 151. Where, as in this case, the legatees are relatives of the testator, the courts presume a desire that all parts of the estate shall be made liable for their payment. In this case no mention is made of any debts of the testatrix, and therefore the sole purpose of the power of sale must have been to enable the executors to pay the legacies which were payable after the death of the husband. Inasmuch, therefore, as all the legatees in this case were blood relatives of the testatrix, whose legacies she must have intended to have paid ; that she knew she had already disposed of all of her personal property, and the legacies could only be paid from the proceeds of the real estate; that the power of sale- was bestowed to enable the executors to pay the legacies, which were to remain unpaid until the death of her husband,—we think the legacies were charged upon the real estate, notwithstanding the absence of an expressed intention so to charge them. Hoyt v. Hoyt, supra, and Kalbfleisch v. Kalbfleisch, 67 N. Y. 362, are authorities for the foregoing conclusions.

The decree should be reversed, with costs payable from the fund, and the proceeds of the real property applied to the payment of the general legacies.

All concur.


text:
    Sarah F. Sumner et al., App’lts, v. Milton P. Skinner et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    1. Vendor and purchaser—Bona ride.
    Grantee of land, conveyed to secure debts, may, at grantor’s direction, make a valid conveyance to a third person.
    3. Parties—Mortgage—Foreclosure.
    Holder of a prior judgment, which has ceased by limitation to be a lien, is not a necessary party in an action of foreclosure.
    Appeal from a judgment dismissing the complaint on the merits.

      A. Page Smith (George L. Stedman, of counsel), for app’lts ; Bergen & Dykman (Jas. C. Bergen and A. J. Thomson, of counsel), for resp’ts.
   Putnam, J.

—This is an appeal from a judgment in favor of the defendants, dismissing the complaint on the merits, with costs. The action was brought by plaintiffs, as judgment creditors of one William Van Vranken, to set aside certain deeds, alleged to be mortgages, by which said Van Vranken was divested of all his real estate, and a judgment of foreclosure of one of'such mortgage deeds, on the ground that said instruments were made and executed, or procured to be, by said Yan Yranken, the judgment debtor, with intent to hinder, delay and defraud creditors. Plaintiffs recovered a judgment against Yan Yranken on the 3d day of January, 1883, which was docketed in Schenectady county, where the defendant resided, on January 6, 1883 ; and an execution issued on said judgment on that day to the sheriff of said county against the property of the judgment debtor was shortly afterwards returned unsatisfied. The conveyances alleged in the complaint to have been executed- with intent to hinder, delay and defraud the creditors of the judgment debtor were in form ordinary warranty deeds. One, made by the judgment debtor on October 17, 1882, to Eobert Clements, conveyed all the real estate of the vendor, which was of large value. The other, executed April 12, 188-4, Eobert Clements having died intestate, by his widow and heirs, to Samuel Skinner, as executor of Peter Skinner, deceased, conveyed the same premises described in the deed first above mentioned. The last mentioned deed appears to have been made at the request of Yan Yranken, and to secure certain claims against him in favor of the grantee therein. The interest of such grantee under said last mentioned deed having been transferred to one Milton P. Skinner, an heir of Peter Skinner, deceased, he commenced an action to foreclose said deed as a mortgage, and obtained judgment of foreclosure on the 14th day of December, 1892. This action was commenced on or about January 21, 1893, and the plaintiffs asked to have declared fraudulent and void the two deeds above described, and also that said judgment of foreclosure obtained on the deed last described be vacated and set aside, as also collusive and fraudulent. The trial junge held that the two deeds above described were in fact mortgages,—the first to secure certain- indebtedness, and the payment of certain obligations existing,. or to exist, between said Yan Yranken and the grantee Clements; the second deed, from the widow and heirs of Clements, was also to secure an indebtedness of said Yan Yranken to the grantee named therein. He also found that each of said conveyances were made upon a good, lawful and sufficient consideration, and without any notice to or knowledge by the grantees, or either of them, of any intent on the part of Yan Yranken to hinder, delay or defraud creditors.

It was for the plaintiff to show on the trial, not only a fraudulent intent on the part of Yan Yranken in making the conveyance to Clements, and in procuring his widows and heirs to convey to Skinner, but also the said grantees received their respective deeds with notice or knowledge of such unlawful intent. Starin v. Kelly, 88 N. Y. 418. We have carefully examined and considered the evidence contained in the case, and see no reason to doubt the correctness of the conclusions reached by the learned trial justice that the said two deeds were, in fact, mortgages, each made upon a good, lawful and sufficient consideration, and without any notice or knowledge on the part of the respective grantees of any unlawful intent on the part of Yan Yranken. As suggested, however, by the trial judge, it is not necessary to consider whether or not the deed from Van Vranken to Clements was made with intent to hinder, delay or defraud creditors, inasmuch as it appears that, at the time of and prior to the deed from the heirs of Clements to Skinner, Van Vranken had paid Robert Clements in full, and fully performed his obligations secured by said mortgage deed, and his heirs claimed no interest'under it. Hence, even if the conveyance from Van Vranken to Clements was fraudulent and void, the deed from the heirs of the latter to Skinner, if made upon a good consideration, and received in good faith, and without notice of any fraudulent intent on the part of Van Vranken, was valid. Murphy v. Briggs, 89 N. Y. 446.

It is held that when a conveyance, in form a deed, is made to secureo a loan, while the interest of the grantee is in fact that of a mortgagee, yet, having on the records an apparent title, one who in good faith and for value purchases the mortgaged premises from such grantee, obtains a valid title thereto, as against the mortgagor and all other persons. See Jones Mortg. § 549 ; Macauley v. Smith, 132 N. Y. 524-532; 44 St. Rep. 847. It can hardly be doubted that, where a deed is given to secure a loan, the grantee who holds the apparent legal title on the record, at the request of the grantor, may make a valid conveyance of the premises to a third party. Hence, we think, the deed from the widow and heirs of Clements to Skinner conveyed a valid title to the premises therein described, as a security, for loans ai.d advances made by Skinner to Van Vranken. It appearing, as above suggested, that the evidence supports the finding of the learned trial judge that said conveyance was made for a sufficient consideration, and without any knowledge or notice on the part of the grantee of any unlawful intent on the part of Van Vranken, the conclusion that plaintiffs have failed to prove facts sufficient to sustain the cause of action alleged in the complaint cannot be overruled. The evidence shows quite clearly that Skinner advanced large sums to Van Vranken, and we are unable to see any satisfactory evidence indicating a fraudulent intent on his part in taking the conveyance, or any knowledge of any fraudulent intent on the part of Van Vranken in procuring the execution thereof. In fact, it does not appear that the latter had any fraudulent intent in securing the payment of an honest debt.

This action having been brought to set aside, vacate and have declared void the deeds above specified as fraudulent, and made with intent to defraud creditors, and the trial court having, on sufficient evidence, found that said conveyances were taken by the respective grantees in good faith, and upon a good, lawful and sufficient consideration, it follows that we cannot disturb his conclusion that the complaint should be dismissed on the merits. This is not an action like that of Barton v. Lynch, 69 Hun, 1; 52 St. Rep. 540, to have a deed absolute on its face declared a mortgage, and for an accounting. Before this action was commenced, the defendant Skinner had claimed that the conveyance of April 12,1884, was in fact a mortgage, and had obtained a judgment of foreclosure thereon. Nor was it an action like that of Macauley v. Smith, supra, to have the deed of April 12, 1884, declared a mortgage, and the premises subject to the plaintiffs’ lien. Before this action was commenced, defendant had obtained a judgment of the supreme court declaring said deed a mortgage. The said deed was conceded to have been made as a security for a debt. The object of the action was to have said deed declared void as made, and received with an intent to cheat and defraud the creditors of Van Vranken. When this action was commenced, the defendant Milton P. Skinner had obtained a judgment of foreclosure upon his mortgage deed, dated April 12, 1884. Although the Skinner mortgage was in fact a deed, we understand that plaintiffs’ prior judgment became and remained a lien upon the mortgaged premises until the expiration of 10 years from its rendition. Macauley v. Smith, supra; Barry v. Hamberg-Bremen F. Ins. Co.., 110 N. Y. 1; 16 St. Rep; 634; Thorn v. Sutherland, 123 N. Y. 236; 33 St. Rep. 408 ; Shattuck v. Bascom, 105 N. Y. 39-43; 6 St. Rep. 715. Therefore, plaintiffs’ judgment lien being prior to the mortgage under which defendant Skinner claimed, plaintiffs were not necessary or proper parties to the foreclosure action commenced by-Skinner on his subsequent mortgage deed; nor were they affected by the decree in that action, as'a sale thereunder would be subject to their judgment lien. Of course, if plaintiffs’ judgment ceased to be a lien upon the mortgaged premises prior to the commencement of this action, a purchaser at the sale under the Skinner foreclosure might claim a title to the mortgaged premises free fr >m the lien of such judgment. It was plaintiffs’ misfortune, if their judgment had then ceased to be a lien upon the real estate. Possibly, they could have protected their rights, if any, under their judgment by issuing an execution under the provisions of § 1252 of the Code of Civil Procedure, and applying to the court to open the judgment entered in the foreclosure action, and to be let in as parties defendant. We are unable, however, to discover from any evidence contained in the case, that plaintiffs have any valid grounds to vacate and set aside the mortgage deed executed subsequently to the rendition óf plaintiffs’ judgment by the widow and heirs of Clements to Skinner, at the request of Yan Yranlcen, to secure an actual and apparently honest indebtedness of the latter to Skinner, to the judgment of foreclosure thereof. The judgment should be affirmed, with costs to the defendant Skinner.

All concur.


author: Van Brunt, P. J.

text:
    Felix St. Anna Govin, App’lt, v. Luciana Govin De Miranda, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Trust—Declaration.
    The signing of a declaration, where its custody is retained, does not create a trust.
    Appeal from a judgment, entered on a verdict directed in favor of defendant.

      A. Kling, for app’lt; E. C James, for resp’t.
   Van Brunt, P. J.

—We see no reason to change the conclusion at which we arrived when this case was previously before the general term (59 St Rep. 337; 27 N. Y. Supp. 1049); and the views expressed in the opinion handed down upon the decision of that appeal are confirmed by a re-examination of the case, and by the attempt upon the part of the appellant to establish a trust where it is apparent that, if any right of recovery exists, it is upon the ground that there was a gift. It is too well settled to need the citation of authorities, that, to establish a valid gift, a delivery of the subject of the gift to the donee, or to some person for him, so as to divest the possession and the title of the donor, must be shown. In the case at bar, it is apparent that this condition has not been fulfilled. But it is urged that the donor became the trustee of the donee, and that that was the relation which existed between the parties. There is no evidence whatever to establish this assumption, except the statement at the end of the instrument of gift to the effect that “ said securities will be retained in my custody for the present as the trustee for the said Felix Govinjfiaz.” There was no attempt upon the part of the donor to part with the control of the subject-matter of this gift. Upon the contrary, he continued to exercise such control, and even parted with some portion of the securities mentioned in the original instrument of transfer as his own, and continued, until the time of his death, to exercise all the rights of ownership,without the recognition of any present right in the alleged donee. While it is true that equity, where a trust is founded upon a valuable consideration, will interfere, and effectuate its intent, no such rule prevails for interposition to perfect a defective gift or voluntary settlement made without consideration. “ When, therefore,” as was held in the case of Young v. Young, 80 N. Y. 437, “ it is found that the gift which the deceased attempted to make failed to take effect, for want of delivery or a sufficient transfer, and it is sought to supply this defect, and carry out the intent of the donor, by declaring a trust which he did not himself declare, we are encountered by the rule above referred to.” Our attention is called to the case of Locke v. Farmers' L. & Trust Co.y 140 N. Y. 135; 55 St. Rep. 546, in support of the proposition that without delivery, by the there execution of an instrument by the donor, he may make himself a trustee of the subject-matter of the trust. An examination of the facts of that case does not support any such conclusion, which seems to be radically opposed to the existence of a fundamental fact necessary to a gift inter vivas. In the case above, there was no attempt upon the part of the doner to creat a trust. What he seems to have intended was to make a gift which was to take effect after his death. Such a disposition can only be of a testamentary character, and cannot be upheld, unless it possesses the requisites required by gifts of this character. The judgment should be affirmed, with costs.

All concur.


author: Mayham, P. J.

text:
    In the Matter of the Application of Caroline Peek.

      (Supreme Court, General Term, Third Department,

      Filed July 1894.)

    1. Taxes —Assessment—Presumption.
    Where 'both person and property are within the territorial jurisdiction of the assessors, the assessment is presumed to have been legally made.
    3. Same—Collateral attack.
    The assessors act judicially in assessing the taxable portion of property, part of which is exempt.
    3. Same—Exemption.

      The payment of a portion of the purchase price of land with pension money exempts from taxation only to the amount of such money used in the purchase.
    Appeal from an order in favor of the petitioner. -

      Louis M. King (Alanzo P. Strong, of counsel), for app’lt; A. M. Vedder, for resp’t.
   Mayham, P. J.

—The petitioner and respondent in these proceedings received from the United States government, as the widow of a deceased soldier, $2,700 pension money, and thereafter purchased a house and lot in the city óf Schenectady, agreeing to pay therefor the sum of $1,450, on which she paid $1,000 of the pension money, and gave a purchase money mortgage on the premises for the remaining $450 of the purchase price. In 1891 the assessors of Schenectady assessed the premises to the petitioner at $800, on which she paid a tax of $13.44, and again, in 1892, the assessors assessed the premises at $700, on which she paid a tax of $11.27. Do objection was made before the board of assessors, on grievance day, to either of these assessments, and, so far as appears from the record, these taxes were paid without protest or objection by the petitioner. On .the 26th of December, 1893, the respondent presented her petition to the county court of Schenectady county, alleging in substance, the above facts as to her purchase of the house and lot, and the assessment and collection of the taxes thereon against her, and praying an order of that court directing the board of supervisors to refund such tax to her. The county court thereupon granted an order requiring the supervisors to show cause before it, on the return of which the supervisors answered the allegations of the petition, and the court, after hearing the proofs of the parties, made an order directing the supervisors to refund such tax. From that order the supervisors appeal. It is insisted, on this appeal, that the evidence did not justify the conclusion of the county court that this tax was illegally and improperly levied. It is only when the tax is “ illegally or improperly assessed or levied ” that the county court can order the supervisors to return it.

The tax having been assessed and collected by public officers charged with the performance of that public duty, and such officers having jurisdiction of the person and subject-matter by reason of the residence of the petitioner and the location of the property within the territorial jurisdiction of the assessors who made the assessment, and of the supervisors who levied the tax, the presumption of law is that they did their duty, and that the tax was legally assessed and collected, and the burden of proving its illegality is cast upon the petitioner. - We think she failed in establishing that affirmative proposition. It does not seem to be denied by the appellant, and we think it must be conceded, that the petitioner is entitled to an exemption from taxation on this land to the extent of $1,000 of its value, as she had invested that amount of her pension money in its purchase. By part 1, ch. 18, tit. 1, § 1, of the Ecvised Statutes, it is provided that “ all lands * * * within this state whether owned by individuals or corporations shall be liable to taxation, subject to the exemptions hereinafter provided.” Under this provision of law, the assessors were called upon to assess only such real property as was owned by the petitioner, and could not lawfully assess property oyrned ly her which was exempt from taxation, and their affidavit to the assessment roll can only be construed to embrace and refer to property of the petitioner which was not exempted by law from taxation ; and, applying the rule of presumption to which we have referred, in the absence of any evidence to the contrary, we must assume that they allowed the exemption, and levied their assessment upon the balance of the real property owned by the petitioner, after deducting the value of the exemption from the value of the whole of the real estate owned by her. Hartwell v. Root, 19 Johns. 345; People v. Carpenter, 24 N. Y. 92 ; Leland v. Cameron, 31 N. Y. 122; Wood v. Morehouse, 45 N. Y. 368-375. It was the duty of the assessors to ascertain and assess the value of the real property of the petitioner not exempt from taxation; and having, as we have seen, jurisdiction of the party and the subject-matter, their judgment on that subject, fixing the value of such property for the purpose of taxation, was of a judicial character, amounting to a valid adjudication, and, until reversed or set aside upon a direct proceeding for that purpose, is conclusive, and cannot be assailed in a collateral proceeding. This rule is too well settled, upon authority, to require the citation of many authorities. In the somewhat recent case of Mayor v. Davenport, 92 N. Y. 610, this doctrine was stated as follows: “ The assessors, of the several towns first make out their rolls, and determine the valuations. In this respect they act judicially, and any erroneous decision can only be corrected by a direct review of their proceedings whenever they have kept within their jurisdiction. If they have so acted, their conclusions cannot be assailed, either by suit at law against them or against those who take the further steps towards collection based upon their action.”

And this doctrine is well buttressed by the authorities cited by Judge Finch in his opinion. It follows that when part of a taxpayer’s property is exempt by law from taxation, and a portion of the same is liable to be taxed, the assessors must act judicially in determining the portion to be assessed and taxed. Weaver v. Devendorf, 3 Denio, 119, 120; Vail v. Owen, 19 Barb. 22 ; Barhyte v. Shepherd, 35 N. Y. 238. It appears to be contended in this matter, by the learned counsel for the respondent, that, as some of the pension money of the petitioner went into the purchase of this real property, that fact gave immunity to the whole property from taxation. We cannot concur in that doctrine to the extent contended for by the counsel. It is quite true that if the $1,000 pension money paid, upon this property had covered its full value, and left no margin of value beyond that amount, the whole property would have been exempt from taxation, and the petitioner would not, in that event, have been a taxable inhabitant of the city of Schenectady, and the assessors would have acquired no jurisdiction, either of her person or property, to make an assessment against her. But that fact the petitioner would be required to establish by proof. None of the cases cited by the learned counsel for the respondent hold that the county court has power, under the provisions of § 16 of chapter 686 of the Laws of 1892, to compel a restoration of tax based upon an assessment when the assessors had jurisdiction to make an assessment. The only evidence of value of this real property before the county court or this court is that the petitioner paid $1,450 for it. Of that sum $1,000 was represented by the pension money, leaving the assessors to fix the value of the balance above the $1,000. Of that value they were made the sole and exclusive judges, in the absence of any proof before them, on grievance day, that their estimate was an overvaluation. No such proof was given or offered, and it follows, therefore, that the valuation of the petitioner’s real property was, in 1891, $800, and, in 1892, $700, and that the order of the county court directing the supervisors to refund the tax paid upon such assessment was erroneous, and should be reversed.

Order reversed, with $10 costs and printing disbursements.

All concur.


text:
    Thomas M. Sculley, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    1. Negligence—Contributory.
    A railroad company is not liable for injuries to a passenger who voluntarily alights from a moving train. He is guilty of contributory negligence.
    3. Evidence—Opinion.
    Any person, who has noticed the movements of trains and judged their rate of speed, may give his opinion on the subject.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      Lewis E. Carr, for app’lt; John W. Lyon, for resp’t.
   Mayham, P. J.

—The principal contention on this appeal is whether the plaintiff was free from negligence which contributed to the injury of which he complains, in alighting from the car of the defendant while the same was in motion. It is not denied that the defendant, in not stopping its train at the station to which the plaintiff was ticketed, failed in its duty towards him; but it is insisted that the plaintiff, in alighting from the car while the same was in motion, was guilty of such an act of negligence on his part as to preclude any recovery for injury resulting to him from that act. The evidence discloses that while the car was in motion, running at a rate of speed variously estimated by witnesses from six to ten miles an hour, the plaintiff got down upon the steps of the caboose in which he was riding, and jumped from them to the ground, on reaching which he fell, and sustained the injury complained of. At the time of the accident the conductor of the train stood on the steps at the opposite end of the car, and signaled the engineer to stop, by the use of the well-understood and appropriate signal for that purpose, and hallooed to the plaintiff not to alight, which signal plaintiff saw given, but did not bear the conductor’s warning. The proximate cause of this injury was the plaintiff’s alighting from the car while the same was in motion. If he had remained upon the car the accident could not have happened. Was his alighting from the car, under the circumstances of this case negligence ? The case does not disclose any coercion of the plaintiff, or immediate apparent necessity for leaving the car at this time, further than his natural and reasonable desire to alight at the point of his destination, and at which his ticket entitled him to be left. It was in the daytime, and the car had gone about 100 yards past the depot when he jumped from it and received the injury. This act, unexplained, seems clearly to establish negligence on the part of the plaintiff, within a number of recent adjudications in the court of appeals. In Hunter v. Cooperstown, etc., Railroad Co., 112 N. Y. 375 ; 21 St. Rep. 1, the court say: “ Persons are taught from their earliest youth the great danger attending upon an attempt to board or leave a train while it is in motion, and no person of mature years and judgment but has knowledge that such an attempt is dangerous in the highest degree.”

And again, in the discussion of the same case on a subsequent appeal, reported in 126 N. Y. 12, 18; 36 St. Rep. 367, the same court uses this language: “To alight from or board a train in motion is a negligent and hazardous act, which can only be made to appear excusable when, in the situation of a person, he is under such a coercion of circumstances as to raise a fair question as to whether he was really in the free possession of the use of his faculties and judgment.”

If after this train had passed the station at which the defendant, by its contract, was required to allow him to alight, and the plaintiff had discovered that it was about to collide with another train, or any other accident had happened to it. so that the life of 1 the plaintiff had been put in jeopardy, and he had under such circumstances jumped from the car, and been injured, he would, under such conditions, within the decision above quoted, have been freed from the imputation of negligence ; and the defendant, by its negligence in carrying him past the place of his destination, would have been liable. Or if, without any fault of his, he had, pursuant to the request or direction of this defendant’s conductor in charge of the train, alighted at this point while the car xvas in motion, it might not lie with the defendant to insist that the plaintiff was guilty of contributory negligence. At least, it would, then, within the case of Bucher v. N. Y. C. & H. R. Railroad Co., 98 N. Y. 128, have been a question of fact, within the language Miller, J., “for the jury to say, whether any such directions were given by the conductor as authorized' the plaintiff to get off of the car at that time, or made him chargeable with contributory negligence for so doing.” But in this case no such conditions were proved to exist. The train was moving on without any apparent danger of accident, and there is no proof that the defendant’s conductor gave or intended to give the plaintiff any direction, by words or signal, to alight from the car.

ít is true that the learned trial judge left it to the jury to determine whether any signal was given to the plaintiff by the conductor to alight from the car, and, if the signal were such that the plaintiff could fairly and reasonably understand that it was intended as a signal from the conductor to him to alight, it would have had the same significance as if words were used. This part of the charge was excepted to by the defendant, and we think the objection was well taken. The jury were thus invited or permitted to enter the domain of conjecture and Speculation as to the manner in which the plaintiff might have understood or interpreted a signal, the significance of which was wholly unknown to him, but which was a well-understood signal, between the conductor and engineer of the defendant, and possibly the only one by which the conductor could communicate to his subordinate his wishes or orders in reference to the conduct of the train. There was no evidence that this signal was intended to influence the action of the plaintiff. On the contrary, “the only evidence in reference to the significance of the same was as an order to the engineer, and the plaintiff himself does not claim, except by inference, that he understood it as a signal to him to alight; while it clearly appears from the uncontradicted evidence of the defendant’s witnesses that the signal with the conductor’s hand, spoken of by the plaintiff in his testimony, was to the engineer to stop the train, to which signal the engineer.responded by whistling for brakes.

We are inclined to the opinion that the plaintiff in this case, while abundantly establishing the negligence of the defendant in failing to stop at Stockport station, as it was bound to do, to enable the plaintiff to alight from the train, has failed to prove the other affirmative proposition equally incumbent on him, to authorize a recovery, viz. for want of contributory negligence on his part, and that for that' reason the motion for a nonsuit should have been granted.

We are also of the opinion that it was error to exclude the evidence of the witness Farley as to the rate of speed at which the train was moving at the time of the happening of the accident, fie had taken notice of the movements of trains, and bad judged their rate of speed, and was, we think, proved to be competent to give an opinion on that subject The rate of speed of a railroad train is not purely within the knowledge of experts, and not, therefore, the subject of expert testimony, Salter v. Utica & Black River Railroad Co., 59 N. Y. 632; Northrup v. N. Y., O. & W. Railroad Co., 37 Hun, 299; and while a witness, to give testimony upon that subject, must have some knowledge or experience upon the same, he is not required to have the degree of knowledge peculiar to experts called upon to testily where expert testimony is required, and .give opinions based upon hypothetical questions. The question o.f the rate of speed of this train at the time of the happening of this accident was an important subject of inquiry on the trial, and the exclusion of the offered evidence was error. The judgment should be reversed, and a new trial ordered; costs to abide the event All concur.


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    Barzell M. Strong, App’lt, v. Cyrus Waters, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Evidence—Parol.
    Parol evidence is inadmissible to vary a written contract, where it is not offered to establish fraud or mutual mistake.
    Appeal from a judgment in favor of defendant.

      S. A. Beman (Royal Corbin, of counsel), for app’lt; Shedden & Booth (L. L. Shedden, of counsel), for resp’t.
   Mayham, P. J.

—In the month of June, 1887, the plaintiff and defendant entered into a contract in writing, of which the following is a copy:

“This agreement made and entered into between B. M. Strong, of Evans Mills, H. Y., as party of the first part, and Cyrus Waters, of Champlain, party of the second part, witnesseth : Party of the first part agrees to drill a well for party of the second part at $2.50 a foot, and furnish pipe for pump without charge, and is to be relieved from all responsibility when he stops drilling. In case of a flowing well, to be two dollars per foot. Party oí the second part agrees to pay party of the first part $2.50 for each and every foot so drilled,' and purchase a pump and cylinder of party of the first part at Gould’s listed prices, and pay for all casing of well at $1.00 per foot; to furnish proper wood and water for engine while drilling, and as required, and board two men while drilling said well. B. M. Strong, per J. B. Bort.
“Cyrus Waters."

Under this contract the plaintiff claims that he drilled to the depth of about thirty feet, when he struck water, but continued to drill to the depth of ninety feet, at the request of the defendant The plaintiff also claims that he furnished to the defendant twenty-one feet of casing or tubing at one dollar per foot; a pump of the value of eleven dollars; and a cylinder of the value of eight dollars; merchandise of the value of $100. There appears to be no substantial controversy over the amount of work performed or material furnished by the plaintiff in and about this work. But the defendant sets up in his answer various defenses, among which was an allegation of fraud and mistake in making the written contract; also, a breach of failure to perforin the contract by the plaintiff. Under this answer the defendant proves, under the objection of the plaintiff, a paroi contemporaneous agreement or contract greatly at variance with the written contract upon which the action was brought. There was no claim that the paroi evidence so offered and received on the part of the defendant proved, or tended to prove, a mutual mistake by the parties to the written contract, so as to make it competent for the purpose of a reformation of the written agreement. ¡Nor did it prove, or tend to prove, any fraud by the defendant in procuring the written agreement to be made. . The only possible effect of the evidence was to modify or add to the written contract important provisions by a paroi contemporaneous agreement. It needs no citation of authorities to show that that cannot be done. We think the learned referee erred in the admission of that evidence, and that such error may have affected his determination of the action. The judgment should, for that reason, be reversed.

Judgment reversed, the referee discharged, and a new trial ordered ; costs to abide the event.

All concur.


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    William Jones, Resp’t, v. William Turner, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    CONTBAOT—CoifSTBUCTION.
    An agreement by a creditor to pay the expenses of his debtor’s factory, sell the products and apply the avails to his debt until fully satisfied, cannot be terminated without notice to debtor.
    Appeal from a judgment in favor of plaintiff, entered on the report of a referee.

      Weeds, Smith & Conway (T. F. Conway, of counsel), for app’lt; Shedden & Booth (L. L. Shedden, of counsel), for resp’t.
   Putnam, J.

—The defendant, on September 10, 1888, recovered a judgment against the plaintiff for $2,303.37. He afterwards levied upon and sold the pottery of the plaintiff, with its manufactured and unmanufactured wares. After crediting thelimount realized bn such sale, there remained a balance owing defendant on the judgment of $1,291.57. Plaintiff was also indebted to defendant for other demands, amounting in all to $935.47. The parties thereupon entered into the contract of September 19, 1888, by which it was agreed, in substance, as follows: The plaintiff should go on at the factory, and complete the unfinished wares, and make new wares. Defendant should pay monthly all hands employed in the manufactory, including the wages of Jones, at three dollars a day, and should furnish and pay for the raw material and fuel necessary to carry on the business. Turner was to » sell the wares for the highest prices he could obtain, and render a statement of the sales of the same to Jones. Out of any proceeds of the sales, after deducting the amounts paid for labor, material, insurance and freight for the wares, Turner should retain from said proceeds the balance due on said judgment, with lawful interest, and also his other demands against plaintiff. When such amounts were fully paid, Turner was to transfer back to Jones the property. Under the contract, plaintiff, on September 20th, commenced work, and continued until June 13,1889, when work was suspended, and has never been again commenced. At the time work ceased, the market was dull and sales could not be made, and the expenses of the business exceeded the receipts. At the time of the trial, it appeared, according to the computation of defendant’s counsel, that the amount received from the sales of goods, over the expenses, including the amount due plaintiff, as hereinafter specified, was the sum of $484.53. Under this agreement, plaintiff furnished materials, and, with his two minor sons, performed services, so that a claim accrued in his favor against the defendant for the sum of $1,132.67, on account of which defendant furnished goods of the value of $463.78, leaving a balance due plaintiff of $668.89. The referee directed judgment for the said sum, with interest.

Defendant urges that, the pottery business carried on under the contract set out in the complaint not being profitable, and it having been made to appear that the net profits would not pay his afore said claims against plaintiff, he had the right to terminate the contract and suspend operations under it; also, that he could set off his aforesaid demands against any claim the plaintiff had for services under the contract The contract provides for its continuance “ for such length of time, and to such an extent as will enable the said Turner, by sale of all finished wares purchased by him this day, and by sale of that so to be finished and manufactured in the future, as will enable the said Turner, out of the net proceeds of all sales, to pay in full the said Murray debt and judgment, aforesaid, with interest.’’ We are not prepared to say that, under the above quoted clause and the other provisions of the contract, and considering the purpose and intent of the parties, defendant might not be able, at any time when it becomes apparent that the business provided by the writing could not be carried on with any profit, to terminate and end the same. But there is no evidence and no finding of the referee in the case to indicate that, when the action was commenced, the defendant had elected to determine the contract. Plaintiff testified: “Turner never told me that he did not intend to go on with the business. The first I knew was when he got the other men to pack the goods. I did not understand up to the time the suit was commenced that Turner did not intend to go on with the contract. He never told me he did not intend to do so, ánd I expected all the time to go on. I locked the building over night. I don’t know if I gave the key to Mr. Turner. His son asked me for the key. I did not give it to him. The door to which I had the key was the one we went in at.”

Ho evidence is produced on the part of defendant showing that he had elected to terminate the contract before the commencement of the action. Hor is such a defense asserted in the answer. The only statement contained therein in that regard is as follows: “And for such reasons the said" business was, oh or about May, 1889, suspended, and no work has since been done, no labor employed, and the plaintiff has not been since in the defendant’s em-‘ ployment.”

If defendant desired to end the contract, it was his duty to serve a notice to that effect on the plaintiff, or in some manner to notify the latter of his election. All that appears in the case and all that was alleged in defendant’s answer was that, when the action was commenced',' work was suspended under the contract. It did not appear that the contract was terminated. On the trial, plaintiff was only allowed to recover for the services of himself and sons .actually performed,—not for future services. He was not allowed to recover damages for breach of the contract. The defendant objected to such a recovery, and any claim for damages for breach of the contract was abandoned on the trial by the plaintiff. As far as the case shows, therefore, when the action was commenced, the contract was in force, and the question arises whether, under the provision's théreóf, the defendant Could set off his aforesaid demands against the plaintiff’s claim for services and disbursements. A careful reading of the contract in question leads us to the conclusion that the learned referee made a proper disposition of the caise. By the contract, Jones was to go on and complete the unfinished work and manufacture new wares. Turner was to pay Jones at the expiration of each month for necessary labor arid material, including Jones’ services, at three dollars per dajn The goods were to be marketed by Turner, and with the net proceeds, after deducting the amount required to pay for labor and materials, Turner was to pay his aforesaid claims. When said claims were paid, Turner was to transfer, by bill of sale, all the remaining wares and stock to the plaintiff.. In effect, the contract contained an express agreement of defendant to pay Jones for the work of himself and sons and for materials at the end of each month. The writing contains an agreement of defendant’s that such payments shall precede any payment on the judgment arid .claims which defendant held against plaintiff. By the terms of the agreement, defendant’s said claims are to be paid out of the net proceeds of the business, after paying for labor, materials and the other expenses The defendant, by his own contract, had precluded himself from setting up -his demands as counterclaims. He had agreed that the monthly payments for labor of plaintiff and his sons and for materials should precede any payment. Having made such an agreement, it must be enforced. Kirtz v. Peck, 113 N. Y. 222-228; 22 St. Rep. 733.

The agreement between the parties was that the expenses of -conducting the business, including the plaintiff’s cláim for work and materials, should be first paid, and the net profits of the business, after deducting such payments, should apply on defendant’s demands. If defendant’s contention should prevail, he would not pay plaintiff for the labor of himself and sons and for materials furnished, as provided in the contract. He would receive the amount due for said labor and materials on his aforesaid demands, in addition to the net profits of the business. We think, therefore, that the conclusion of the learned referee that, under the contract, the plaintiff was entitled to be paid for the services of himself and sons and for materials furnished monthly, is correct The action was on a contract in force when it was commenced. Whatever may be fairly implied from the terms of an instrument is in judgment of law contained in it. So construing said contract, defendant agreed that, out of the business mentioned therein, plaintiff should first be paid for labor and materials before any payments on defendant’s demands. The judgment directed by the referee merely enforces the carrying out of the contract. We have examined the rulings of the referee made on the trial to which exceptions were taken, and think that none of them call for a reversal of the judgment.

The judgment should be affirmed, with costs.

All concur.


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    The People ex rel. Tiffany et al., App’lts, v. Frank Campbell, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Taxes—Franchise—Corporations—Domestic
    A domestic corporation is, unless its operations are carried on wholly within the state, subject to the franchise tax.
    Certiorari to review an assessment.

      Miller & Wells (Chas. E. Miller and Norton Chase, of counsel), for relator; Theodore E. Hancock (John W. Hogan, of counsel), for resp’t. Roberts ; Calvin J. Huson, for resp’t Campbell.
   Mayham, P. J.

—Tiffany & Co. is a domestic corporation created under the general manufacturing act of 1884, with its principal office and place of business in the city of New York, having a capital stock of $2,400,000 and a surplus, during the period from 1888 to 1891, inclusive, of about 1,000,000, employed as capital in its business. In July, 1892, the comptroller settled an account against that corporation for tax for 12 years prior to November 1, 1891, aggregating $237,000, the corporation having hitherto failed to make a report to that officer. In March, 1893, Tiffany & Go. made application, under the statute, to the comptroller for a revision and resettlement of its accounts for taxes so assessed against it. Upon a hearing on such application, testimony was taken, and on the 28th of December, 1893, the comptroller made.and filed his decision, wherein he determined that this corporation was, prior to 1889, exempt from taxation, but that it was taxable during the years 1889, 1890,and 1891, and fixed the amount of the tax during that period at $6,000. To review that determination, the relator, Tiffany & Go., sued out a writ of certiorari, and now claims that as a domestic manufacturing corporation it is wholly exempt from taxation under the act of 1848, and the various acts amendatory thereof, and that the provisions of chapter 353 of the Laws of 1889, amending the act of 1880, have no application to it The attorney general, on behalf of the state, also seeks to review by certiorari the determination made by the comptroller by which he reduced this tax to $6,000.

We shall first consider the certiorari of Tiffany & Co. The question presented by this certiorari is, is Tiffany & Co. wholly exempt from taxation under the statute ? In answering this question, a brief examination of the statute out of which this question arises is necessary. The first statutory exemption to which our attention has been directed is § 3, c. 542, of the Laws of 1880, which provides as follows: “Every corporation, joint stock company or association, whatever, now or hereafter incorporated under any laws of this state, or now or hereafter incorporated by any other state or country, and doing business in this state, except savings banks and institutions for savings, life insurance companies, banks and foreign insurance companies, and manufacturing corporations carrying on manufacturing in this state, shall be subject to and pay a tax.”

By this section, manufacturing corporations doing business within this state, whether incorporated under the laws of this state, or of any foreign state or country, are clearly exempted from tax imposed under the act of 1880, and that, too, without any restrictions upon their doing business, out of the state or transacting other business within this state. That exemption was not restricted, or in any way affected, by chapter 361 of the Laws of 1881, amending in some respects the act of 1880. This act was again amended in some particulars bj^ chapter 359 of the Laws of 1885, but the exemption from taxation of manufacturing corporations, incorporated under the laws of this state and doing business therein, was not affected by such amendment. The act was next amended by chapter 353 of the Laws of 1889. By this, chapter 542 of 'the Laws of 1880 was amended so as to read as follows : “Every corporation, joint-stock company, or association whatever, now or hereafter incorporated, organized, or formed, under, by or pursuant to law in this state or in any other state or country, ando doing business in this state, except only savings banks and institutions for savings, life insurance companies, banks, foreign insurance companies, manufactfiring or mining corporations, or companies wholly, engaged in carrying on manufacturing, or mining ores within this state, and agricultural and horticultural societies ■ and associations, which exception, however, shall not include gas companies, etc., * * * shall be liable to and shall pay a tax.”

Prior to the act of 1889, manufacturing corporations were exempted from this tax, if they were incorporated under the laws of this state or of any other state or country, and doing business in this state. The manifest object of the legislation' upon this subject, as appears by the legislation itself, and the construction put upon it by the courts, was, by granting these corporations exemption from taxation, to furnish inducements to productive industries to locate their plants and carry on their business in this state, and thus- contribute to its general prosperity and aggregate wealth. But this inducement, liberal as it was, did not in -all instances secure to the state the desired advantage It is quite apparent that the legislature, in passing the act of 1889, sought to guard against corporations availing themselves of this immunity from taxation by organizing under the laws of this state in a name and character which, under the statute, would exempt them from the franchise tax, and at the same time engage in a business claimed to be incidental to the protected business in this state, or the same kind of business outside of the state, and thus, to a great extent, escape taxation. If we are right in assuming that the policy of the original act of exemption was to foster and encourage manufacturing in this state, we may in like manner assume that it sought, by incorporating in the act the word “ wholly,” to more effectually accomplish that object by compelling corporations entitled to the exemption to conduct a business wholly within this state, or lose their right to the exemption, and, for the same reason, to employ its capital in the business to encourage which the legislature had deemed to be for the interest of the state; and hence all corporations within the state, not coming within this class, the legislature has seen fit to tax. It can hardly be maintained that the legislature intended to confer the advantages of exemption from taxation on a manufacturing corporation, and allow such corporation to employ its capital in business in competition with other corporations, companies, or individuals whose business of the same character is liable to be taxed. In interpreting an act of the legislature, if doubtful or uncertain language be employed, the court may properly look for the motive that induced the legislature to make the enactment, for the purpose of arriving at the legislative intent. People ex rel. Am. C. & D. Co. v. Wemple, 129 N. Y. 564; 42 St. Rep. 400. But if we are to give the word “ wholly ” its full literal significance, and apply it to manufacturing corporations, within this state, no real doubt or ambiguity is left in the statute which could make it necessary to invoke any technical rule of construction. The plain import of the language would be to deprive manufacturing corporations, incorporated under-the laws of this or any other state, and doing business partly in this and partly in another state, of the benefits of this exemption. But it is insisted by the learned counsel for the relator that the word “ wholly,” used in the amendment of the act of 1880, by § 353 of the Laws of 1889, does not refer to manufacturing corporations, but relates only to mining ores within this state. The language of the statute, with its punctuation, is as follows: “ Manufacturing or mining corporations, or companies wholly engaged in carrying on manufacturing, or mining ores within this state.” Did the language employed mean “ manufacture of ores " and “ mining of ores,” or did the word “ manufacture ” relate to those industries, generally known, making from raw material manufactured articles, as designated from another industry known as digging from the soil deposits of metallic substances ? I am clearly of the opinion that both industries were required in this statute to be wholly carried on within this state, and that the word “ wholly ” required the corporations engaged in these several industries to confine their operations within this state in order to make the exemption available. '

Prior to the enactment of the amendment of 1889, these exempted corporations, whether foreign or domestic, were entitled to exemption if they were doing business within this state, although they were also engaged in their business out of this statu ; but if they did no business in this state, but carried on their business abroad, they were liable to taxation. People v. Horn Silver Min. Co., 105 N. Y. 76-78; 6 St. Rep. 495. The effect of the amendment of 1889 is well illustrated in the case of People ex rel. Seth Thomas Clock Co. v. Wemple, 183 N. Y. 323-325 ; 45 St. Rep. 284. That was a foreign corporation, organized in the state of Connecticut, and doing business partly in Connecticut, and partly within the state of New York, from 1880 to 1889, and its average annual business in New York was from $16,000 to $20,000, and for the same period its average annual business in Connecticut was from $500,000 to $700,000 a year; and the court of appeals held that, prior to the amendment of 1889, it was exempt from taxation, because it was a manufacturing corporation carrying on business in this state, and the court in that case, in discussing the effect of the amendment of 1889, uses this language: “ So, also, a foreign manufacturing corporation, actually engaged in manufacturing within this state, was exempt from taxation, the same as a domestic corporation of the same character. This exemption was restricted by chapter 353 of the Laws of 1889, which requires that, the corporation, in order to be entitled to claim the exemption, shall be ‘wholly engaged in carrying on manufactures within this state.’ The legislature, in passing this amendment, intended to apply a new rule in taxing foreign manufacturing corporations.”

This last remark was doubtless because the court had, in that case, a foreign corporation under consideration, and was not intended to distinguish between a foreign and a domestic corporation in the application of the new rule created by this amendment. Indeed, no distinction could be made between a domestic corporation and a foreign corporation doing business in this state, as the application of the amendment of 1889, in express terms, and in the same sentence, embraces both foreign and domestic corporations, and in this respect places them under the same rule. The language is: “ Organized or formed under, by or pursuant to law of this state, or in any other state or country, and doing business in this stata” We are, therefore, by the very language of the act itself, required to apply the same rule to a domestic corporation as was applied in the clock company case by the court of appeals, and to hold that the legislature has established, by the amendment of 1889, and has “ intended to apply a new rule to the taxing of domestic manufacturing corporations.” Not only the same language in the statute as to domestic and foreign corporations is employed, but the same consideration of state policy is applicable to domestic and foreign corporations. Judge O’BrieíT, in discussing the probable object of the legislature, upon that question of policy, uses tills language : “ If the legislature, in providing that manufacturing corporations should be exempt from taxation, intended, as it probably did, to encourage and foster manufactures within the state, the policy of the law would apply as well to a corporation carrying on a small business as to one engaged in larger and more extensive operations.”

And we may add that this consideration will apply as well to domestic as to foreign corporations. There is no distinction in the statute between domestic and foreign corporations, and we see no reason for any distinction on the ground of state policy, and think that the reasoning of the court in the Seth Thomas Clock Company Case applies with equal force to the case at bar.

Tiie comptroller, upon the evidence, finds that the relator employed a portion of its capital outside of its manufacturing business, as follows : For the year 1889, 13 per cent., $312,000 ; l'or the year 1890, 12 per cent., $288,000; for the year 1891, 15 per cent., $360,000,—on which he assessed a tax as follows: 1889, on $312,000, amounting to $1,950; 1890, on $288,000, amounting to $1,800 ; 1891, on $360,000, amounting to $2,250. Weareclearly of the opinion that the relator, by its dealings with its capital, in not confining its use to manufacturing wholly within this state, has deprived itself, under chapter 353 of the Laws of 1889, of its immunity from taxation which it had before that term enjoyed under the act of 1880, and that the comptroller was authorized and required, under the act of 1889, to impose a tax on the relator. The writ of certiorari must be quashed, with $10 costs and disbursements.

Putnam, J., concurs; Herrick, J., not acting.