text:
    William Magee, Resp’t, v. The City of Brooklyn, App’lt. Peter Delap, Resp’t, v. The City of Brooklyn, App’lt.

      (Court of Appeals,

      Filed December 21, 1894.)

    1. Condemnation proceedings—Award.
    Where the owner of a lot, part of which was taken under chap. 559 of 1871, subsequently conveyed said lot by a full covenant deed, purporting to grant “ all the estate, right, title and interest, property, possession, claim and demand” of the grantor, and, before the city made any attempt to take possession of such portion, the plaintiS, through various similar mesne conveyances, became the owner, the award, which represents the portion of the lot taken, was.transferred by the deeds and belongs to the plaintiS.
    3. Same. •
    Where a lot, a portion of which was taken under said act, was, at the time of its passage, covered by a mortgage then duly recorded, but the mortgage was, before any award was made, foreclosed and the whole lot sold, the purchaser, who holds the title at the time the land is appropriated, is entitled to the award.
    Appeal in the first above-entitled action from judgment of the general term of the city court of Brooklyn, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    Appeal in the second above-entitled action from judgment of the general term of the city court of Brooklyn, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    These actions were brought to recover two awards, made and confirmed under chapter 559 of the Laws of 1871, on account of the taking of a portion of two lots on the north side of North Second street, in the city of Brooklyn, in the widening and improvement of that street.

      Albert G. McDonald, for app’lt; F. N. O'Brien, for resp’t; Jackson & Burr, for resp’t, Delap.

      Affirming, 51 St. Rep. 438.

      Affirming, 51 St. Rep. 128.

   O’Brien, J.

These cases both arise out of the same statute and involve similar questions. Both were submitted together and they may be conveniently treated as one appeal. The only question involved in either is to whom the awards, which it is conceded that the city is bound to pay, belong and are payable. By chapter 559 of the Laws of 1871, the lands were taken for street purposes, and it is conceded on all sides that the taking was effected by force of the statute itself, which has been upheld against constitutional objections on the ground that a sure and safe method of making compensation was provided. The taking, however, was only constructive as the owners remained in possession, and no attempt was made by the city to actually appropriate it to the purpose intended until about eighteen years after the passage of the act. In the meantime the land was the subject of sale and transfer in various forms, and in many cases the title was changed from one party to another, and now, when the city has finally concluded to take and pay for the land, the question arises with respect to the party to whom the award rightfully belongs. The case has always been considered as sui generis, and the rights of the parties determined according to the peculiar facts and circumstances upon equitable principles. Donnelly v. City of Brooklyn, 121 N. Y. 9; 30 St. Rep. 501; McCormack v. City of Brooklyn, 108 N. Y. 49; 12 St. Rep. 817.

In the first case Magee, the plaintiff, has recovered in the courts below the amount of an award made by the commissioners to one Caroline C. Shwaitz on the 9th of November, 1876, who did not then own the land nor the lot from which it was taken, she having conveyed the same a few months-before, a fact of which the commissioners may have been ignorant. Charles R. Shultz was the owner of the lot when the act was passed, but on the 10th day of January, 1874, he conveyed it by metes and bounds to Mrs. Schwaitz by a full covenant deed, including in the description the whole lot 'and, therefore, the land for which the award was made, precisely as if the act had never been passed. On March 20th, 1876, Caroline C. Schwaitz conveyed in the same way to Sarah F. Mann, and through several mesne conveyances, all in the same tenor, the plaintiff obtained the title on the 2d of July, 1890. The deeds in every case purported to grant “all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part of, in and to the same, and every part and parcel thereof,” and as already stated, contained full covenants. The party to whom the award was made and her grantees conveyed the land taken and were paid for it, so far as appears, precisely as if the title was not affected by the passage of the act. The city now having taken possession, it must respond to the plaintiff upon its covenants or else he is entitled to the award. In equity the award represents that portion of the land taken, and under the circumstances of the case and the broad and comprehensive language of the deed, it can fairly be said that the parties intended to assign the award. Having conveyed the land with full covenants it must be assumed that they intended to transfer the thing which represented it which was the money ¿warded as its value. Gates v. De La Mare, 142 N. Y. 307; 59 St. Rep. 1. While the actual appropriation of the property to the public use was delayed for many years, yet the situation after the passage of the act was such that it is reasonable to assume that the grantors in the several deeds expected that it would be actually taken at some future time and paid for, and hence they conveyed intending to vest the grantees with the claim against the city which was substituted for a title which each of them covenanted to protect and defend. This view is re-inforced now by the circumstances that none of them are making any claim to the award, and none of them, so far as appears, have ever made any such claim.

In the other case the plaintiff Delap recovered the award of $1,000 made at the same time and for the same purpose with respect to other land taken in the same way. The facts upon which the j udgment rests are somewhat different, though, at least, quite as favorable to the plaintiff. At the time of the passage of the act the McCabes owned the lot from which the parcel which that award represents was taken; but before its passage they mortgaged the entire premises on the 6th of February, 1871, including, of course, the identical parcel taken. The mortgage was duly recorded, it having been given to secure to one Samuel Deleplaine the payment of $1,500. Before any' award was made this mortgage was foreclosed and judgment entered directing the sale of all the land for the satisfaction of the debt. In March, 1876, it was sold upon this judgment and conveyed to the plaintiff, who took ■ the title that the mortgagor had when the mortgage was executed. Though the plaintiff had only a lien upon the land when it was constructively taken, yet when it was actually taken he had the title which by operation of law related back to the time when the mortgage was given, and hence the city has taken his land and he is entitled to the money which represents it.

Moreover, even if the mortgage had not been foreclosed and title taken under it, such a conveyance is deemed to operate in equity as an assignment of the award when made for the protection of the mortgagee or his assigns. Gates v. De La Mare, supra.

In both cases the judgment of the courts below was right and should be affirmed, with costs.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: (xRAY, J.

license: Public Domain

text:
    The People ex rel. John I. Platt et al., Resp’ts, v. Frank Rice et al., App’lts.

      (Court of Appeals,

      Filed December 21, 1894.)

    1. Contempt—Excuse.
    It is no sufficient excuse for the conduct of parties, who have neglected or disobeyed an order of the court after appealing from it and after stipulating to proceed in accordance with the decision of the appellate court, to say that there was no jurisdiction to make such an order.
    2. Same—When guilty.
    A person may be held guilty of the offense of contempt for having done an act after the court had decided to enjoin its doings, though such decision had not been formally and technically carried out or formulated, into an order or writ.
    3. Same—Stipulation.
    The defendants, by their formal stipulation, estopped themselves from objecting either to the non-issuance of the writ of mandamus, or to the right of the court to order its issuance.
    4. Same—Effect oe appeal.
    Though the power of the court below to enforce its decisions may be suspended as the result of an appeal, such decision loses none of its strength pending the appeal; and, if modifications of its terms are made, it is, to the extent that it is sustained, the same order, to the validity and force of which has been added the sanction of the appellate court.
    5. Same—Poweb to punish.
    Subdivision 8, § 14 of the Code preserves to courts of record the power to punish as a contempt, in the interest of a party to the action, an evasion or a violation of duty, or misconduct, which resulted in defeating or prejudicing the complainant’s rights.
    6. Same.
    Where the state board of canvassers have disobeyed the order of the court in relation to canvassing the returns for state senator, the voters in the senatorial district have power, in case of the death of the candidate for senator, to institute the proceedings against such board for contempt.
    Appeal from order of the general term of the supreme court in the third judicial department, which affirmed an order of special term adjudging defendants guilty of contempt and imposing a fine.
    The defendants constituted the state board of canvassers, whose duty it was to canvass the returns from the various counties of the state of the votes cast therein at the election held in 1891. A dispute arose in Dutchess county over the election of senator for the fifteenth senatorial district. The county board of canvassers returned a certain statement of the result of the votes, which the county clerk, as secretary of the board, refused to attest as required of him by the statute. The board, thereupon, appointed one of their number, John J. Mylod, secretary pro tem, and he signed and attested the statement of the board, which was duly forwarded to the state board of canvassers. According to this statement, , Edward B. Osborne appeared to have the greatest number of votes for senator. The opposing candidate, Gilbert A. Deane, having died, the relators, who were voters in two of the counties in the senatorial district, instituted proceedings against the members of the state board, claiming that the paper filed with them by the county board was defective, erroneous and invalid, upon the grounds that it had not been signed, or certified to, by the county clerk, nor by him transmitted to the state board, and that it contained the result of an illegal and erroneous canvass of the returns of the inspectors of election in the whole county, whereby a greater number of votes was counted for Mr. Osborne than he was entitled to and which gave him an apparent plurality of fourteen votes in the senatorial district. Upon the application of the relators, and after' hearing the parties, the supreme court, at special term, on December 7th, 1891, ordered that a writ of peremptory mandamus issue, commanding “the state board of canvassers that they issue a certificate of election to the office of senator in the fifteenth senatorial district of this state, disregarding the return of the board of county canvassers of the county of Dutchess, which is signed by John J. Mylod as secretary of said board pro tem, but that instead thereof they consider only such return from the county of Dutchess as may hereafter be filed ; and that in their certificate of election the said state board of canvassers certify and declare that the person who appears upon the certified returns and statements made by the boards of canvassers of the counties of Columbia, Putnam and Dutchess, in pursuance of the statute and the order of the court, to have received the greatest number of votes was duly elected senator from the said fifteenth senatorial district.”
    ■ On the same day that this order was made, the parties entered into a written stipulation, which provided for the taking of an immediate appeal therefrom to the general term, •for securing an immediate hearing before that court and for the further and immediate appeal by the defeated party thereat to the court of appeals. It further provided for the suspension by the defendants of their proceedings for the canvass of votes, until the decision of the court of appeals, and that such canvass should be completed and the certificate of its result made in accordance with that decision. The general term affirmed the order, upon the appeal there, and, upon the appeal to this court, this order was made, viz.:
    “ It is ordered and adjudged that the order of the special term herein, dated December 7, 1891, and the order of the general term affirming the same, and the same writ itself be modified by striking out the provision requiring a return to be certified by,. and to come from, the county clerk of Dutchess county, and issued under his seal, and that the said order, so appealed from, as so modified, be affirmed, without costs.”
    In the opinion of this court, in which all the members of the court concurred, the illegality of the canvass of the county board, as alleged in the record, was adverted to and discussed. It was pointed out that the allegations relating to the making up of the canvass by the county board in opposition to the actual returns, were not denied and that there was no explanation nor contradiction, as to their manner of arriving at the result; the defendants practically resting their case upon the return being a legal one, which could not be questioned. It was said in the opinion of this court that the state board could not itself inquire into the, allegations as to the making of the return; but that “ if another return should be duly sent to the board, properly authenticated and containing the result of the legal action of the board of county canvassers, the state board could canvass it.” It appears than another and corrected return was mailed to the defendants, but failed to get into their hands and, eventually, reached them by private hand on December 23, 1891. The decision and order of this court were handed down early in the afternoon of December 29, 1891. In the evening of that day, and before our remittitur had been filed, the defendants met in board meeting and at once proceeded to canvass the votes for the office of senator in the fifteenth senatorial district, from the return which had been signed and certified to by Mylod. It appears that previous to said meeting our opinion and order were read, or otherwise made known to the defendants. The present proceeding in the matter has been instituted to have the defendants adjudged guilty of the offense of contempt of court. An order to show cause issued which recited the order of December 7, 1891, and the various facts herein before mentioned or alluded to, that the defendants were guilty of deceit; in that they entered into the stipulation for the purpose of obtaining a stay of the issuance of the writ of mandamus, without any intention of abiding by it; that in their proceedings they were guilty of an abusp of proceedings in the court and that in holding their meeting, before the order of this court could be made the order of the supreme court and before a writ of peremptory mandamus could be issued in pursuance thereof, and in disregarding the provisions and requirements of the order of December 7, 1891, as modified and affirmed by this court, they showed a gross want of the regard and respect due to the said, order; and the several defendants were required to show cause why they should not be punished, etc. At first the application for the order to show cause was denied, but upon appeal the general term reversed the order denying the application and granted the same, and that court ordered the defendants to show cause, etc., at the special term, at a time and place designated. Accompanying the service of the papers was a notice by the attorneys for the relators, to the effect that, upon failure of the defendants to show cause as required, an order would be moved for, adjudging them in contempt of court and imposing a sentence of thirty days’ imprisonment in the county jail and a fine of $250, or such other sentence or fine as the court might deem proper. The answer of the defendants was in justification of their action, substantially setting forth that - they were advised that the order of December 7, 1891, was void for want of jurisdiction; that the modification by this court of that order deprived it of its restraining force, and, as they construed it, made it meaningless or ambiguous; that the allegations of a conspiracy, or of fraud and deceipt, or of willful disobedience to the lawful mandate of the supreme court were false and untrue; that they had acted in the utmost good faith in the discharge of a public duty and without any. disrespect to the court, or any intention to disobey its order; that the question involved was substantially a question of construction, as to the meaning of the decision of this court, and that their view was one also taken by various members of the legal profession and concurred in by some of the justices of the supreme court. After hearing the parties, the court made an order, which recited the facts connected with the order of December 7 th, 1891, and its affirmance by this court; that it appeared from the papers that, pending the- appeal to this court from the order of December 7th, 1891, another return of the board of county canvassers was filed with, and delivered to, the proper state officials and wras in the possession of the defendants on December 29th, 1891; that it appeared upon the return signed by Mylod that Osborne had received the greatest number of votes; that it appeared that on December 29th, 1891, after the decision of this court, and before its judgment could be made the judgment of the supreme court and the writ of mandamus issued, the. defendants met as a board and, regarding the so-called Mylod return and not regarding the subsequent statement delivered to them, or in their possession, issued their certificate of election, declaring that Mr. Osborne had received the greatest number of votes for the position of senator. The order then recited that “it appearing that defendants, in canvassing the said returns from said counties aforesaid, and in issuing their certificate of election aforesaid, were guilty of the offense of contempt of this court, and that such contempt -was calculated to and actually did defeat, impair and prejudice the rights and remedies of the relators herein; and that such disobedience was not willful,” and adjudged the defendants guilty, in terms as recited, and, because no actual loss or injury had been produced to the relators, fined them in the sum of $831.28, the amount of the complainants’ costs and expenses in prosecuting the contempt proceeding. The appeal of the defendants to the general term did not prevail there and they have appealed to this court from the order of affirmance.

      J. Newton Fiero, for app'Its; John Broolcs Leavitt, for resp’ts.

       Affirming 62 St. Rep. 289.

   (xRAY, J.

The statement of facts has been made thus full, in order that, by exhibiting the various proceedings and acts in some detail, the objections of the appellants may be at once more clearly understood and deprived of any seeming force. We think that the order of the supreme court was warranted by the facts and that that court could not very well have held otherwise with respect to the conduct of the defendants. That our decision could 'have been misunderstood, or understood by the appellants as they say it was, is difficult for us to believe. There was neither uncertainty nor ambiguity in the direction by this court for the affirmance of the order of December 7th. The order that was affirmed directed the issuance of a writ, commanding the defendants to disregard the so-called Mylod return, in issuing their certificate of election, and, instead thereof, to consider only such return as might thereafter be filed containing the signatures of the county clerk, etc., and issued under his seal, and that in their certificate-of election the state board should declare that person elected who appeared. to have received the greatest number of votes, etc., etc. The only respect in which we differed from the court below, respecting its- order, was in that it required a return from the county board of canvassers to be certified by, or to come from, the county clerk. For reasons given, under the circumstances, we held that to be an unnecessary requirement for the validity of the statement of the coun.ty board of the result of their canvass. So far, therefore, as the order appealed from described the kind of return which might be considered, we changed, or modified, it; but we affirmed it in every other respect and the order stood unaffected, as a direction to disregard the Mylod return. With that order approved and affirmed by this court, and containing the judgment of the court upon the right to consider the Mylod return, the appellants should have complied. Not only did the order, which we made as the result of our consideration of the appeal, call upon the appellants to comply with the requirements oE the order for the writ of mandamus,—a compliance which their stipulation should have impelled them to, without waiting for the issuance of the formal writ,—but the opinion of the court, whicli was read by (or to) them, informed them, in distinct language,, that they could consider any other return, containing the result of the legal action of the county board, and that the return attested by Mylód, though not invalidated by the refusal of the county clerk to sign and certify it, contained, according to uncontradicted allegations, the result of an illegal and erroneous canvass, which •would alter the result of the election and which the court should not permit to be canvassed. There was nothing in the modification in our order, nor suggestion in the language of the opinion, that left the defendants at liberty, legally or morally, to consider the order reversed, or changed, in its direction as to the Mylod return. They could not consider that return. They could consider any other return showing the correct result of the canvass. This was plain from the order and was the clear expression of our opinion.

The appellants object, however, upon other grounds, not related to the question of the meaning of our decision. They object that no writ of mandamus was either granted or served, under' the order of December 7th,.1891, That is immaterial, as it concerns the question of whether the'defendants have deliberately done something which they knew the court had decided they should not do and had thus neglected or violated a duty, which the court would have, through the form of a writ prescribed by the statute, enjoined upon, or have commanded them to perform, had the stipulation, which they made upon the granting of the . court’s order for the writ of mandamus, not prevented the actual issuance of that writ. What constitutes the contempt here is that 0 the defendants, knowing of the order for the issuance of a peremptory writ of mandamus, have done the very thing which the issuance of the writ was intended to absolutely prevent, and have thus con temned and defeated the will of the court. It is no new principle that a person may be held guilty of the offense of contempt, for having done an act after the court had decided to enjoin its doing, although that decision had not been formally and technically carried out, or formulated, into an order or writ. See Hull v. Thomas, 3 Edw. Ch. 236, and English cases cited there. Also, the remarks of Johnson, J., in People v. Sturtevant, 9 N. Y. at p. 278.

The appellants further say that the order was not one, which it was in the power of the supreme court to make at special term. It is true that we have held that § 605 of the present Code of Civil Procedure applies, where the object of the proceeding is to restrain state officers, or boards, and requires the injunction order to issue at the general term. People ex rel. Derby v. Rice, 129 N. Y. 461; 41 St. Rep. 932. It is not, however, for the appellants to question the 'effect of the order of December 7, 1891, on any such ground. Their formal stipulation was an acknowledgment of the order and they cannot now be heard to assail the jurisdiction of the court to make it. It was possible that it might have been decided, upon the hearing, or in the course of the appeals from it, that it was improperly issued, but it was not so decided and it was affirmed by the general term of the supreme court and then, finally, by this court. It stood as a valid order, whether correctly decided or not, and was entitled to the respect and the obedience of all parties upon whom it was to operate. It is no sufficient excuse for the conduct of parties, who have neglected or disobeyed an order of the court after appealing from it and after stipulating to proceed in accordance with the decision of the appellate court, to say that there was no jurisdiction to make such order. It is true that jurisdiction cannot be conferred by consent of parties, but a question relating to the authority of a branch of the court to make the particular order may be effectually waived. The supreme court had jurisdiction of the parties, although the authority to order the writ of mandamus may have been vested in the general term. Beyond that consideration, however, it is evident that the offense of the defendants was not only in a disobedience of the order of December, 7, 1891, but, also, in the evasion of their stipulation and in their disregard of our decision. It is necessary, in the orderly administration of justice, that our will,, as that of the courts below, be respected, when communicated to the parties to an action or proceeding. Both with respect to this point and to the preceding point discussed, it may, again, be observed that the defendants, by their formal stipulation, estopped themselves from objecting either to the nonissuance of the writ of mandamus, or to the right of the court to order its .issuance. The appellants argue that the remittitur of this court containing our decision had not been filed in the supreme court and an order entered making our decision the determination of the supreme court, with the result, as they say, that, by our modification of the order, it -had ceased to exist as such and there could have been no disobedience of it. We think this a frivolous objection. It would lead to the irrational conclusion that because a decision in the form of an order or a judgment had been appealed from and brought into-this court for review, it became of no force, if modified in some-parts, though affirmed in essential parts. The power of the court below to enforce its decisions may be suspended, as the result of an appeal, but its decision loses none of its strength pending the appeal, and, if modifications are made of its terms, to the extent that it is sustained, it is the same order, to the validity and force of which has been added the sanction of this court.

The appellants object that this was a proceeding to punish for a criminal contempt, whereas the court, determining that there was no willful disobedience on the part of the defendants, has punished them as for a civil contempt. They argue that the relators made their election as to proceeding and are bound by it, so that, if the defendants were not guilty of that willful disobedience, which is required by the Code (§ 7, sub-div. 3) to constitute a criminal contempt, they could not be punished at all therein. They base this point upon the notice which the respondents served with the moving papers, after the decision of the general term, which, reversing the denial of the court at special term, ordered that the application for the order requiring the defendants to show cause should be granted. The notice stated that the respondents would ask for a fine of $250 and an imprisonment of thirty days, the particular punishment authorized by the- Code (§ 9) to be administered for a criminal contempt. It is a sufficient answer to say that the order to show cause, originally applied for and subsequently ordered to be granted by the general term, and the moving papers presented the matter to the court in such a way as to leave it open for it to decide, upon all the facts, as to the guilt of the defendants, the nature of the offense and the measure of their punishment. The subsequent service of the notice, specifying the punishment which would be demanded, related to a demand in the event of the failure of the defendants to appear and to show cause as required. It did not take away the power of the -court to proceed, as required by the general term order, and to decide upon the offense. The proceeding was in no wise limited to one for the punishment of the offense of a criminal contempt.

We think the case was one which was comprehended within subdivision 8 of § 14 of the Code. That section conferred the power upon courts of record to punish by fine and imprisonment, or either, a violation of duty, or other misconduct, by which a right or remedy of a party to a civil action, or special proceeding, may be defeated, impaired, impeded or prejudiced, in any case “where an attachment, or any other proceeding to punish for contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy * * * and to protect the right of a party.” This provision preserved to courts of record the power they had previously possessed to punish, in the interest of a party to the action, as a contempt, an evasion, or a violation of duty, or misconduct, which resulted in defeating or prejudicing the complainant’s rights. It was a power formerly exercised by the English courts of chancery, and which was continued by tile Revised Statutes of this state (2 R. S. 534, 535); as can be seen from, the cases of King v. Tooley, 12 Mod. 312; Skip v. Harwood, 3 Ark. 564; Osborne v. Tenant, 14 Ves. 136; Hull v. Thomas, 3 Edw. Ch. 236, and People v. Sturtevant, 9 N. Y. 278. The court below' has determined, as a matter of fact, that in what they did the defendants’ acts actually did defeat, impair, impede and prejudice the rights and remedies of the relators, and there can be no doubt that there were undisputed facts, sufficient to warrant the court in finding that the conduct of the defendants amounted to a disobedience, or to a disregard, of the decision made upon the relators’ application for a writ of mandamus. In determining that there had not been a willful disobedience, the court took into consideration, as it properly might, the sworn denials of an intentional disrespect and the averments of having acted in good faith, in proceeding upon a construction of the meaning of our decision, as to which the}' had been advised by counsel and which they believed themselves to be true. With this determination upon the facts, we cannot interfere. The court, nevertheless, was required to and it did impose such punishment as, under the circumstances, fitted the facts of the case. These relators had the interest, which all citizens have in public matters, to compel the performance by public officers of the duties of their office, and to ask the enforcement against them of penalties prescribed for their defaults," or disobedience, but they could not claim to have suffered any actual loss, which the award of a sum sufficient to cover their costs and expenses would not compensate for.

The order appealed from should be affirmed, with costs.

All concur, except Earl and O’Brien, JJ., dissenting.

Order affirmed.


author: Per Curiam.

text:
    Henry Pike, Jr., as Receiver, etc., Resp’t, v. Mechanics and Traders’ Bank, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed, October 12, 1894.)

    Injunction—Prosecution of actions.
    Where two actions are pending in the supreme court between the same parties involving the same question, the court has power, if justice demands it, to restrain the trial of the later, until the disposition of the former action.
    Appeal from an order, made in the first action, denying a motion, made by one of the defendants therein, for an injunction restraining the prosecution of the second action.
    Action by Henry Pike, Jr., as receiver of the property, assets and effects which were of the copartnership of Haas & Pohalski, against Benoit Wasserman, Herman Reiners, Catharine M. Reiners, Henry Bischoff, Moses Lindheim, Solomon L. Simpson, Mechanics & Traders’ Bank, Francisco Garcia, Vincente Guerra, Abraham Rosenstein, Helen Wollman, Leopold Schmitt, Robert J. Dean, Edward M. Dean, Alvin J. Donally, John J. Gorman, as sheriff of the city and county of New York, and Charles C. Allen, as late receiver of the copartnership of Haas & Pohalski. The complaint alleged the appointment of plaintiff and of defendant Charles C. -Allen, as receivers in a certain action instituted in the supreme court, city and county of New York, by Henry W. Haas against Gh David Pohalski, for the dissolution of the firm of Haas & Pohalski, the commencement of various attachments, replevin and execution proceedings by defendants, and prays that plaintiff’s title as such receiver be cleared from the clouds of said attachments, replevins and executions, and that, pending the determination of the action, defendants be enjoined and restrained from prosecuting any of their actions or proceedings, and for such other and further relief, either interlocutory or final, as may be necessary, equitable, just and proper in the premises, claiming, ■among other things, that said proceedings are void, having been levied on assets in the possession of the court. Afterwards an action was brought in the supreme court in the county of Kings, by Benoit Wasserman, Herman Eeiners, Catharine M. Eeiners, and Henry .Bischoff, composing the firm of H. & H. Eeiners; Moses Lindheim, "Victoria Simpson and Alfred L Simpson; Francisco Garcia and Vincente Gruerra, composing the firm of F. G-arcia & Co.; Abraham Eosenstein and Helen Wollman, composing the firm of Eosenstein & Wollman,—against Henry Pike, Jr., as receiver of Haas & Pohalski, Charles C. Allen, as receiver of Haas &;Pahalski, Henry W. Haas and Gf. David Pahalski, individually and as composing the late firm of Haas & Pahalski, to ■ procure an adjudication that the appointment of the receivers was fraudulent as to said Wasserman and others (plaintiffs in the second action), and that their judgments, attachments and executions b.e adjudged superior to the title of said receivers.

      Charles Strauss, for app’lt; Oratz Nathan, for resp’t.
   Per Curiam.

Both being actions in the supreme court, there seems to be no doubt but that this court has the power to restrain the trial of one until the final disposition of the other, if justice demands it. We think, therefore, that the order appealed from should be reversed, and order granted restraining the trial of the action subsequently brought until the final determination of the action first instituted ; ten dollars costs and disbursements of the appeal to the appellant.


author: Bradley, J.

text:
    Adran J. Reynolds, Resp’t, v. The City of Niagara Falls, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    1. Damages—Personal injuries—Medical services.
    In an action for personal injuries, the plaintiff may recover for medical services, though he has not paid for them, where the physician, who rendered them, testifies to their value.
    2. Evidence—Personal injuries.
    The physician, who attended plaintiff soon after the injury, may express his opinion as to the continuance of the known present condition of the injured limb.
    3. Statutes—Repeal—Implication.
    A general statute will not, by implication, have the effect to defeat the operation of a special and local one, unless it is manifest that such was the legislative intent.

      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.

      Frank H. °Innes, for app’lt; P. F. King, for resp’t.
   Bradley, J.

The plaintiff, in walking on the sidewalk along the westerly side of Main street, in the city of Niagara Falls, on the evening of June 23, 1893, stepped into a hole in the walk, and sustained an injury. • He brought the action to recover the damages he sustained. - The hole in the walk, about seven inches in width, extending across the walk, and about the same depth, was occasioned by the absence of a plank; and the evidence tended to prove that it had been in that condition two or three months at'that time, and that the street was a main thoroughfare of the city. The conclusion was warranted, upon the evidence, that the defect in the walk at the time in question was attributable to the negligence of the defendant, and that the. plaintiff was free from contributory negligence. Those questions were fairly submitted to the jury, and they found upon them in the affirmative.

The questions presented by -the defendant for consideration arise on exceptions to the reception and retention of evidence, and to a certain proposition of the charge made by the court to the jury. The plaintiff was treated for his injury by two physicians, Drs. McBlane and Cole. He was asked, “ Did Dr. McBlane present you a bill for his services ? ” After his answer in the affirmative, objection upon the ground that he could not recover for medical services unless he had paid for them was overruled, and exception taken. The plaintiff further answered, “ The amount of the bill was $20." He was then asked a similar question as to Dr. Cole, followed by a like objection, ruling, and exception,, and the plaintiff answered, “ $60." Those doctors were called as witnesses, and the former testified that he charged the plaintiff $20 for his. services, and that the charge was reasonable, and Dr. Cole testified that his services were worth $100. Although the evidence thus given by the plaintiff may not alone have entitled those charges for medical services to consideration by the jury, the evidence of the doctors was sufficient for that purpose. Gumb v. Twenty-third St. Railway Co., 114 N. Y. 411; 23 St. Rep. 748. And there was no error in the charge to the jury to the effect that they were permitted to include in damages the acdbunt of the expense incurred by the plaintiff for such medical treatment. - While' it may not have been essentially material,'¡for any legitimate purpose of the action, to prove that the plaintiff spoke the German as well as the English language, there was no error prejudicial to the defendant in his evidence to that effect

Dr. McBlane, who had treated the plaintiff for a short time im-a mediately following the injury, and saw and examined him again at the time of the trial, was asked, “ In your opinion, is the present condition which you found permanent ? ” and, after a general objection and exception, answered, “ I am inclined to think it is permanent." Thereupon the motion of the defendant’s counsel to strike out the answer was denied, and exception taken. The witness further testified, “My opinion is that it is permanent.” The injury as described by the doctors was a fracture of the neck of the right femur, and, as the consequence of this fracture of the thigh bone, the right leg qf the plaintiff had shortened about three-fourths of an inch, and the doctor testified that the movement of it was somewhat limited. It was to this condition that he referred in the expression of his opinion. It is urged by the defendant’s counsel that this evidence was merely speculative as to the possible developments and the condition of the limb in the future, and, within, the docirine of Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305, inadmissible. Such is not the nature of the evidence. • By it the doctor expressed his opinion about the continuance of the known present condition of the plaintiff’s limb. This was clearly competent. Griswold v. N. Y. C. & H. R. R. R. Co., 44 Hun, 236; 7 St. Rep. 804; Id, 115 N. Y. 61; 23 St. Rep. 729; McClain v. Brooklyn City Railroad Co., 116 N. Y. 459; 27 St. Rep. 549; Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y. 77; 27 St. Rep. 865.

By the charter of the defendant, it was a condition precedent the maintenance of an action for the cause alleged by the plaintiff that the claim in writing be presented to the common council within thirty days aftér the date of the injury, verified by añida-' vit.' Laws ¿892, ch. 143, § 53. The plaintiff’s claim in writing was in due time presented to the common council of the defendant, and it was verified by affidavit taken at Niagara Falls before A. C. Morgan, commissioner of deeds of the citjr of Lockport, N. Y. It was filed with the city clerk, and brought to the attention of the common council, and referred to the city attorney. No question was raised as to its sufficiency prior to the time of .the trial. When it was offered in evidence, objection was interposed on the ground that the affidavit taken before the commissioner of deeds of the city of Lockport was an ineffectual verification of the claim, because he had no authority to take it;, and it is now insisted by the counsel for the defendant that such commissioner had no power to perform such an official act beyond the limits of the city of Lockport. By the charter of the city of Lockport it was before then provided that the “ commissioners of deeds of the city may administer oaths,”, etc., “ at any place within the county of Niagara.” Laws 1886, ch. 120, § 75'. This would seem to relieve «the verification of the claim from any question of power of that officer to take the affidavit where it was taken in the county, unless in it's exercise he was restricted to his city by the provisions of the latter statute that commissioners of deeds shall be appointed by the common council of cities, and that they “ shall have power to take proof and acknowledgment of all written instruments.” Laws 1892, ch. 683, § 86. The method of op-' pointment thus mentioned is the same as that prescribed by § 33 of the charter of the city of Lockport. It may be assumed that, if the power of the commissioner of deeds of that city is dependent upon the latter statute, the exercise of-it would be locally confined to his city, and that such limitation will be implied when nothing appears to the contrary. But the special statute on the subject of the power of the commissioner of deeds of the city of Lockport is not in terms repealed- or superseded by the general statute of 1892 ; and it is a rule of construction that a general statute will not, by ‘implication, have the effect to defeat the operation of a special and local one, unless it is manifest that such was the legislative intent. In re Commissioners of Central Park, 50 N. Y. 493; People v. Quigg, 59 N. Y. 83; Van Denburgh v. President, etc., of Greenbush, 66 N. Y. 1; In re Delaware & Hudson Canal Co., 69 N. Y. 209; Whipple v. Christian, 80 N. Y 523. The provision of the charter of the city of Lockport which permits its commissioners of deeds to exercise their official power beyond its municipal limits, and within the county of Niagara, is deemed in force, notwithstanding the provisions of the later statute before mentioned; and for that reason, without considering any other, the exception to the introduction in evidence of the verified claim was not well taken. No other question requires any expression of consideration.

The judgment and order should be affirmed.

All concur.


author: Bartlett, J.

text:
    In the Matter of John J. Mitchell.

      (Supreme Court, General Term, Second Department,

      Filed October 26, 1894.)

    1. Appeal—Appealable order.
    An order, directing the county clerk to print certain names on the official ballots, is appealable, where whatever action the general term takes can be made effective.
    2. Elections of officers—Primaries—Notice.
    Postiug notice of a primary to be held by a faction óf a party is sufficient, where the only, daily newspaper published in the city, though of the same political party, is opposed to such faction.
    3. Same—Ballots.
    A local faction, which supports the state nominees of the party, may print the names of its local nominees on the ballots with those of such state nominees, though such faction was not recognized by the preceding state convention of such party.
    Appeal from .an order, directing tbe county clerk of Queens county" to print certain official ballots for the “Eeg°ular Democratic Party ” of Queens county, otherwise known as the Gleason faction.
    Certificates of nomination had been filed, in the name of the “Regular Democratic Party," of officers nominated for the several local offices in the several assembly districts of Queens county. The said Mitchell had also been nominated at a regular convention of the “ Democratic Party ” for the office of sheriff. His objection was that there was no such party as the “Regular Democratic Party," and that its nominations were not made by any recognized political organization. On the hearing at special term the Republican county committee was allowed to intervene, and the court took proofs as to all objections which could be raised to the ticket nominated by the said “ Regular Democratic Party,’’ and also considered without further application what state officers could properly appear on this ticket in case it was held that it was a valid political party. After hearing all of the proofs which were adduced by the several parties, the court at special term made findings by which it was found in substance that the so called “ Regular Democratic Party ” was a faction of the Democratic party, and that it had had its existence and been recognized as a faction for several years past, although it had not been recognized by the Democratic party either at its state convention or in the county conventions.; but it was found that- it supported the state officers nominated by the Democratic .party, and considered itself as belonging to that party in state and United States matters. The special term also found that the nominations had been made by the so-called “Regular Democratic Party ’’ in the. manner provided by the statute, and that there had also been a full list of nominations made by the so-called “Democratic Party.” The court held that, although the “ Regular Democratic Party ” was not recognized by the Democratic party, yet that, being a recognized political faction in Queens county, it was entitled to have its tickets printed, and ta have included therein all of the nominees of the Democratic party for -state and congressional offices. From the order entered on this decision, appeal was taken to the general term.

      William E. Stewart, for app’lt John J. Mitchell; George Wallace, for app’lt the Republican county committee of Queens county; George W. Stephens, for resp’t “The Regular Democracy."
   Bartlett, J.

The election law of1 this state provides that a certificate of nomination which apparently conforms to the third article of that statute shall be valid, unless written objection is filed within three days after the filing of the certificate. The ■officer with whom the certificate is filed passes upon the validity of any objection which is duly interposed, and- his decision is declared to be final “ unless an order shall be made in the matter "by a court of competent jurisdiction, or by a justice of the supreme court at chambers on or before the Wednesday preceding the election." Laws 1892, c. 680, §65. The case before us is an appeal from an order made, under this provision of the election law, at a special term of the supreme court in Queens county, held by Mr. Justice Cullen on the 24th day of October, 1894. In Re Woodworth, 64 Hun, 522; 46 St. Rep. 432, the general term of the fifth department expressed the opinion that such an order was not appea'able. One of the reasons given for this conclusion is that the time when the questions may be investigated and decided is brief, and the proceedings must necessarily be summary. There, however, the appeal did not come béfore the" general term until after the election, when the reversal or affirmance of the order appealed from could have had no effect. Here, the present appeal has been heard before the election to which the order relates, so that whatever action the general term takes, if it has jurisdiction, can be made effective. It seems to me that the matter comes within the category of special proceedings,, as defined in the Code, and hence that the general term may entertain an appeal from an order made at special term therein, when the appeal can be heard and determined in due season, as in the case at bar/ Code Civ. Proc. § 1347.

The question which we are called upon to decide relates solely 0 to what are known as party nominations under the election laws; that is to say, nominations made by a primary or convention, or by a duly authorized committee appointed by such primary or convention. It has nothing to do with independent nominations, which are made by certificates signed and acknowledged by a prescribed number of voters. The appeal was brought on in so informal a manner that the record was incomplete, inasmuch as it did not contain the testimony taken at special term. This, however, has been furnished to us by the official stenographer. The proceedings in the court below, including these proofs, show that there is now, and has been for many years, in Queens county a faction of the Democratic party which is known as the “ Gleason Faction.” This year the delegates of this faction were not admitted to the Democratic state convention. In some years, however, they have been admitted. But whether recognized by the state convention or not, it appears that the Gleason faction . have always supported the Democratic state and national tickets. Their contest with the other Democratic organization in Queens county has related only to local offices, and in respect to some of these they have more than once been successful, notably in Long Island City, thus indicating that they comprise a substantial body of voters. A certificate has been filed with the county clerk, in behalf of this faction, making nominations for county clerk, sheriff, superintendent of the poor,, three "coroners, justice •of sessions, and member of assembly for the third assembly district. The Gleason faction call themselves the “ Begular Democratic Party,” and these nominations .purport to be made by the duly authorized committee appointed by a convention of ■delegates representing the regular Democratic party, held September 22, 1894, in and for the county of Queens.” John J. Mitchell, who is the candidate for sheriff of the Democratic ■organization opposed to the Gleason faction, duly filed objections to the validity of their certificate, and contends—First, that* they are not entitled to have any official ballot at all printed, inasmuch .as they did not comply with the law in respect to holding their primaries and convention; and, secondly, that in any event they are not entitled to have the names of their candidates for local offices placed on the same ballot with the names of the Democratic candidates for state offices, but that, so far as the latter are ■concerned, their ballot should be left blank..

As to the first point, the record does not sustain the objection that insufficient notice was given of the holding of the primaries of the Gleason faction. In .a city or village having more than 5,000 inhabitants, notice of a primary must be given in a daily newspaper published there, of the same politics with the party giving the notice. Election Law, § 51. There aré more than 5,000 inhabitants in Long Island City, but the only daily newspaper there is found by the court below to be opposed to the Gleason faction. Under these circumstances, I do not think it was a paper in which the law required the notice to be given, though it is also declared in the findings to be independent-Democratic in politics. The obvious purpose of the statute is to provide for the publication of the notice where persons desiring’ to attend the primaries would be likely to see it; and such persons would hardly be likely to see it in a journal hostile to their organization. The election law goes on to provide that: “ If no-such newspaper is published in the same city or village where such primary is to be held, such notice shall be posted in at least six public places in such city or village at least two days next preceding such primary and published in a weekly newspaper, if any, in such city or village of the same politics as the party giving the notice, before such primary is held.”

The prescribed notice was posted in Long Island Oity in six or-' more public places, and in the town of Flushing, and the proof is that the weekly papers published in Long Island City are all Republican. The provisions of law, therefore, in regard to. giving notice of pritnaries in cities and villages having more than 5,000 inhabitants seem to have been complied with; and, except in such cities and villages, a primary may be called, and held pursuant to notice given, according to the regulations and usages of the party organization holding it. Election Law, § 51, last clause.

These views lead to the conclusion that the Gleason faction are entitled .to have their nominations for local offices printed upon an official ballot, and bring us to the second question in the case: Is that official ballot to bear only those nominations for local offices, and to be otherwise blank, or may it also bear the Democratic nominations for state officers ? This question is different from that which came before me in 1890, in the case of People v. Sutphen, not imported. That was an application for a peremptory writ of mandamus to compel the county clerk of' Queens county to strike the name of James W. Covert, as a candidate for congress, from the official ballot containing the nominations for county offices made by this same Gleason faction. There it appeared that the Gleason faction had been recognized by the last preceding state convention, and had been accorded equal representation with the delegation of the rival Democratic organization from Queens county. Each faction held a county convention and nominated county officers. When these two sets of county nominations came before the county clerk, he was unable to determine that one was any more or less Democratic than the other, and so he printed one ballot bearing the names of the county candidates of the Gleason faction, together with the name of James. W. Covert as candidate for representative in congress, and Robert Earl as candidate for judge of the court of appeals, and another' ballot bearing the names of the county candidates of the other Democratic faction, together with names of the same candidates for congressman and judge. Each county convention being-apparently just as regular as the other, so far as the clerk could tell, it was held that he might lawfully place the names of Mr. Covert and Judge Earl upon one official ballot containing the county nominations made by one of the Democratic county conventions, and also upon another official ballot containing the county nominations made by the other Democratic county convention. It was impossible, on the facts then before the court, to say that one convention was not as much in harmony with the state Democratic organization as the other. Here the facts are' quite different. The Gleason faction have been refused recognition by the state convention, and if such recognition is necessary to enable them to have their local ticket placed on the same ballot as the state ticket they must fail on this appeal. Only four reported cases have been brought to our attention arising under section 65 of the present election law, or the corresponding provision in the original ballot reform act. Laws 1890, c. 262, § 13. These manifest a decided difference of judicial opinion at special term in regard to the effect which ought to be given to recognition or nonrecognition by a state convention. In re Woodworth, 16 N. Y. Supp. 147, involved a controversy between two opposing Republican factions in Seneca county, Mr. Justice Adams, finding both certificates in apparent conformity with the laxy, inquired into the extraneous facts, and ordered the clerk to print upon the official ballot the names of the county candidates nominated" by the faction which he found to be regular. The case went to the general term, where, as already stated, the court held that the order was not appealable. 64 Hun, 522; 46 St. Rep. 432. In Re Redmond, 5 Misc. Rep. 369; 55 St. Rep. 150, the same learned judge was called upon to determine whether the nominee of an assembly convention called and held by a faction whose delegates had been refused admission to the Democratic state convention was entitled to have his name printed on the official Democratic ballot. He decided that: “The applicant, having received his nomination at the hands of a convention whose claims to regularity have been submitted to the supreme authority within the party of the state, and which have by that party been declared unfounded, cannot be regarded as a regular nominee of his party, and is consequently not entitled to have his name printed upon the official Democratic ballot.”

Judge Adams again considered a like question in Re Pollard, 25 N. Y. Supp. 385, and expressed the opinion that: “ The only rule for courts and judges to adopt in this and all other similar contests is that they will interfere only in cases where there has been no adjudication of the question of regularity by some division of the party which "is conceded to be superior in point of authority to the one in which the contention arose, provided, of course, that the question of good faith in the making of such adjudication is not involved."

On the other hand, in Re Broat, 6 Misc. Rep. 445; 56 St. Rep. 780, at the Albany special term in January, 1894, Herrick, J., declined to give any force to the recognition of one of the rival organizations by the executive committee of the Democratic state committee, saying: “In proceedings of this character, the decisions of party conventions, committees or caucuses are not binding and have no weight with the court. One of the very purposes of the law is to determine whether the action of such bodies is in conformity with the laws of the state.”

In examining the various special term decisions which have been rendered upon this branch of the election law, in order to ascertain what view is soundest in reason, we should not overlook the opinion delivered by Judge Cullen himself, two years ago, in an unreported case in Queens county, where the facts were not materially different from the facts in the case at bar. Jones v. Sutphen, MS. opinion. The question was, whether the names of the Democratic nominees» for presidential electors should be placed on the ballots containing the names of the candidates for local offices nominated by the Gleason faction. The delegates of that faction had not been admitted to the most recent Democratic state convention. It was claimed that there could be but one organization of the same political party in a county; that the Gleason organization was not regular, because it had not been recognized as such by the state convention; and that it was to be treated as a wholly distinct party, not entitled to have its local nominees named on a ballot with nominees for state offices unless it held a state convention or nominated candidates for state offices by certificate, as independents. This view was rejected, in reliance upon the principle involved in the decision of the general term of the first department in the case of People ex rel. Van Wyck v. Wheeler, 18 Hun, 540, where the Tammany Hall organization was held to be entitled to representation in the appointment of Democratic election inspectors, notwithstanding the fact that Tammany Hall had withdrawn from the Democratic state convention and refused to support the candidate for governor. In selecting the inspectors, it was declared to be the duty of the police commissioners to look upon the Democratic party as a whole, and not exclude a great body of Democrats who, under one local organization, rejected the nominee for governor, but supported all the other nominees .upon the state ticket. The wisdom of the rule thus laid down, said Mr. J ustice’ Cullen in the manuscript opinion to which I refer, has been made apparent by subsequent events. “ Tammany Hall, in 1879 withdrawing from the state convention, and not until 1882 suffered to take part in its proceedings, even on a partial representation, in 1889 was received as the only representative of the Democracy of the city of Hew York. Yet, with the exception of the election of 1879, it always supported the state Democratic ticket, polling therefor generally a greater vote than that of its rival organization, and defeating that organization in the contests for local offices. It would be absurd to deny that Tammany Hall, during the period of its exclusion from the state council^, was a part of the Democratic party of the state of Hew York. The Gleason party stands in the same position on. state and national nominations. It is a part of the Democratic party.”

If these views were correct in 1892, when they resulted in placing the Democratic presidential electors on the same ballot as the Gleason nominees in Queens county, they are correct now, and should lead to an affirmance of the order directing the clerk to place the names of the Democratic nominees for state offices upon an official ballot bearing the names of the local candidates of the Gleason faction. I think they were correct. In .making up the various official ballots, the county clerk takes into consideration the nominations for state and district offices which have been certified to the secretary of state, and the nominations for local offices which appear upon Certificates filed in his own office. In combining the names to go upon a particular official ballot, he is to select,, so far as party nominations are concerned, the candidates nominated by one and the same party. Ordinarily there is no difficulty in doing this, for ordinarily there is only one set of nominations from the same party to deal with. But suppose there are two- sets, as in the present case, so far as local offices are concerned, both coming from rival organizations which claim to be parts of the Democratic party; may the county clerk refuse to place one of these sets on a ballot with the state nominees, simply because the faction which made the nominations was not recognized by the last state convention ? I think not. His duty is to inquire and determine as matter of fact whether that faction is really a part of the Democratic party of the state or not, in the wider or more liberal sense applied in the Wheeler Case by the Hew York general term'. If it is, the local candidates'should be named on a ballot with the Democratic state ticket. If it is not, they should have a ballot by themselves, with blanks so far as relates to state officers. The determination, as a question of fact, whether a particular local party is to be deemed a portion of a larger political party or not may often involve perplexities, and it is impossible to lay down any specific rules in advance by which such questions may be decided. It seems perfectly clear to me, however, upon the proofs in the present case, that the court below was right in the conclusion reached as to the relation of the Gleason faction to the Democratic party of the state.

The present election law is not so plain in its provisons, or so easy of interpretation, as to permit any construction in respect to the points here involved which would not be open to some objection. I think that which has been adopted really involves fewer substantial objections than any other which has been suggested. To hold that a large body of Democrats or Bcpublicans who were in sympathy with their party nominations for state offices could not have an official ballot bearing those nominations, because of factional differences in respect to local candidates which resulted in two local tickets, would be to restrict rather than to facilitate independent voting. The original ballot reform law was entitled “An act to promote the independence of voters,” and the present election law, which is based upon it, should be interpreted, so far as possible, in accordance with the purpose thus indicated.

I think the order appealed from should be affirmed.

All concur.


author: O’Brien, J.

text:
    Marion M. Miller, Pl’ff, v. University Magazine Company et al., Deft’s.

      (Supreme Court, New York Special Term,

      Filed November, 1894.)

    Corporation—Stockholders—Action.
    A stockholder cannot, on hehalf of himself and for the other stockhold" ers, maintain an action to compel the return, upon an excessive issue of stock, of so much thereof as exceeds tne value of the property, in payment of which it was issued.
    Action to cancel certain shares of stock.
    21 M. Tyng, for pl’ff; G. B. Merrill, for def’ts.
   O’Brien, J.

The defendant, the University Magazine Company, is a corporation organized under the laws of this state on the 9tli day of December, 1890, for the purpose of publishing and printing a monthly magazine. The capital stock is $50,000, divided into 5,000 shares of $10 each. At the first meeting there was adopted a resolution in the following words: “ Whereas, the plant of the University Magazine is necessary for the purposes of the company; and, whereas, Mr. Thomas Winsor is the sole owner of the same; therefore, be it resolved that the entire capital stock be issued to Mr. Winsor for his interest therein.”

The question arises whether the certificate for such stock was ever delivered, no receipt for the same appearing on the company’s certificate book; but from the fact that a blank power of attorney to transfer the same signed by Winsor, appears on the book, and is marked “ canceled,” I shall assume that it was delivered by the company, received by Winsor, and returned in exchange for the certificates thereafter issued. The plant of the University Magazine referred to in the resolution, for which the capital stock was issued, consisted of certain books, records and papers, good will, advertising contracts, and subscribers’ list belonging to a former insolvent corporation called the Collegian Publishing Company, which had been purchased at a sheriff’s sale in the previous June, by the defendant Eliot, for $5. On the same day he assigned his purchase to the defendant Brooks, by an instrument which expressed a consideration of $100; and on the same day Brooks assigned and transferred the property to Winsor by an instrument expressing a consideration of $1. With the property thus acquired, the business of publishing a monthly magazine, called the University Magazine, was continued in the interest of Brooks, Eliot and Winsor, from June 24, 1890, until December 9, 1890, the date of the defendant’s incorporation. It is claimed that between those dates, by reason of an increase in subscriptions and advertising contracts, the plant had greatly increased in value. As against this, however, we have the facts that it was run in July at a loss of $450; in August, of $150; in September of, about $125; that in October it about paid for itself, and in November there was a profit of about $150, and for the succeeding month, December, the profits were a little more, I do not think it necessary to go more into detail as to the value of the property, it being conclusively shown, to my mind, that it was not worth, on any basis of figuring, at the very outside, more than $10,000, which is a most liberal estimate. For this property, and without any evidence of prior negotiation, the company, at its first meeting, issued to Winsor its entire capital stock.

That this was not a purchase in good faith, that Winsor was not the real party in interest, and that the whole purpose was to turn the stock into the hands of the defendants Brooks and Eliot clearly appears from the fact that the certificate for the stock given on the purchase was immediately returned, and certificates issued either to Eliot or Brooks, or to persons whom they designated to receive the certificates. When money was needed, Brooks or Eliot obtained purchasers for the stock, and returned their certificates for the purpose of having deducted therefrom the amount of stock agreed to be issued to the persons purchasing. In some instances the money thus obtained from the sale of stock was deposited in the treasury of the company, and used for the purposes of the business. These facts appear from the way in which the stock was divided and held on the 24th of December, two weeks after the company was organized:

Shares. R. A. Zerega, certificate No. 2......................... 250 Walter Gr. Eliot, certificates Nos. 3, 4, 5, 7, 9, 10, 11, 12.. 1,250 May Baker (a friend and client of Brooks), certificates Nos. 15,16,17.............'........................... 3,493 Sundry small holders, certificates Nos. 6, 13, 14......... 7 6,000

It will be noticed that Winsor retained none of the stock, and it appears that all he got out of the transaction was $750, which came out of the stock sold to Zerega, who paid $1,000 for his holding, and that $250, the balance of this $1,000, went to Brooks as commission for effecting the sale.

As the law in regard -to corporations like the defendant requires that stock, in order to be full paid, should be subscribed for at par or property of the full value contributed therefor, it is beyond question that the arrangement by which the stock was issued to Winsor did not make it full paid, the company receiving at the very outside, for its $50,000 in stock, not more than $10,000 in property. Were this an action, therefore, by a creditor to determine the liability of stockholders, the question upon this state of facts would be easy of solution, The action, however, is one brought by the ^plaintiff, on behalf of himself and all the stockholders of the cor’poration, for the purpose of compelling the return of all the stock thus issued that was in excess of the value of the property acquired ; the plaintiff acquiescing in the view that in addition thereto all the stock held by persons who purchased it for cash should be regarded as lawfully issued. The question, therefore, presented is, can a stockholder, on behalf of himself and for the other stockholders, and practically for the benefit of the corporation, maintain such an action ? This question has been squarely presented in the case of Parsons v. Hayes, 14 Abb. N. C. 419, wherein the facts were in many respects similar to those here appearing. There the plaintiff, suing on behalf of himself and the other stockholders in a mining, corporation organized under the act of 1848, alleged that the defendants, who were the trustees of the corporation, issued its entire capital stock, of the par value of $2,000,000, to one 0, as fully paid-up stock, in exchange for certain mining property which they knew was not worth more than $150,000 ; thal 0 thereupon gave up over $200,000. worth of the stock, which was sold for the benefit of the corporation, and turned over $900,000 of stock to the defendants for their personal benefit; that all this was done in pursuance of previous agreements between G and the trustees, and that the latter obtained large profits from the sale of stock that had been turned over to them. It was held in that case that inasmuch as the acts complained of were performed with the consent and participation of G, who was, for the time being, the holder of all the stock, the corporation had no cau^e of action or right to damages, and that the plaintiff, suing on its behalf,- was not entitled to relief; that as 0 was a party to the acts complained of, and so disqualified from suing, and as plaintiff’s title to the stock held by him was derived from C, with notice, he could have no greater rights than his assignor. There is one distinguishing feature between that case .and the' one at bar, in that it is here shown that the plaintiff had no notice, when he purchased his stock, of the illegal acts complained of, but that he bought his stock upon the representation that it was treasury stock, and that the moneys were to go into the treasury of the company, and that it was subsequent to his purchase that he became aware of the manner in which the capital stock had been issued, and of the way in which the individual defendants had secured their holdings. The action, however, is, in all other. respects similar to Parsons v. Hayes, being brought by the plaintiff, not to recover damages by re’ason of any false representations,— not to repudiate the agreement under which he purchased his stock,—but on behalf of the corporation for the purpose of compelling a return to it of the shares of stock ille.gaily and excessively issued, and to have determined who are the lawful holders of the stock of the corporation. Unquestionably, it is such an action as the corporation itself should bring and maintain; and the reason for it not being so brought is furnished by the statement of the plaintiff that the" defendants, who are in possession of the stock so illegally issued, are in control of the corporation as directors and trustees, and, therefore, would not bring an action as against themselves. But assuming that there was no embarrassment by reason of the circumstance.that the persons holding the illegal stock were in control of the company, the question practically is, could the corporation itself maintain this action ?

Upon the facts, the plaintiff fully sustains the allegations of his complaint by showing that under a colorable arrangement for the purchase of the property, insignificant as compared with the par value of the stock, the entire capital stock of the company was issued to them and is now in their possession, or under their control. Upon the authorities, however, it would seem that a suit in equity, such as this, to compel them to return the stock, cannot be maintained. These authorities are collated in a footnote to the case referred to of Parsons v. Hayes, 14 Abb. N. C. 419; and in Skinner v. Smith, 134 N. Y. 240; 47 St. Rep. 528, it was held that stockholders of a private corporation may be denied equitable relief against acts of the corporation which do not affect the public," but only the interests of its stockholders, and which, although ultra vires, are not, per se, illegal or malum prohibitum, where the stockholders asking for relief have assented to those acts, or have acquiesced therein with full knowledge of the facts. It will be seen that, again in this case, a distinction is taken between one who either knows or assents to, or acquiesces in, the transaction; and, as in this case, it is shown that the plaintiff neither knew, acquiesced in nor assented to the acts complained of, it remains to be determined whether this circumstance changes the rule as laid down in the cases referred to. With respect to a transaction such as the overissue of stock, knowledge or want of knowledge would seemingly be of slight importance as affecting the right of a subsequent purchaser of the stock to the equitable relief such as is here asked. The authorities referred to proceed upon the reasoning that; as the corporation and all the stockholders assented to the illegal transaction when consummated, it suffered no damage and was not then injured by such illegal act, and that, no action then arising in its favor, this condition is not altered by the circumstance that the stockholders change and others take the place of those who originally held the stock. If this reasoning be sound,—that a corporation, by virtue of the assent of all the stockholders, had no grievance of which a court of equity would take cognizance,—it is difficult" to see what differance it would make as to the right of such corporation to maintain an action subsequently based upon the fact that certain of the stock had been transferred to other holders.

Without assenting to the force of this logic, yet trying this ease in the first instance, I am bound to follow these authorities. It does seem, however, to be rather anomalous that an illegal transaction, such as is here clearly established, leaves the corporation remediless when relief is asked in the interest of persons who, in good faith, for a full consideration, and without knowledge of, or assenting to or acquiescence in, the illegal act, become stockholders in the,corporation. .Upon the authorities, therefore, I am constrained to dismiss the complaint, but, under the circumstances, without costs. 6


author: Brown, P. J.

text:
    The People, Resp't, v. Stephen C. Duryea, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed October 26,1894.)

    Seduction—Promise of marriage.
    Seduction, under promise of marriage in case the female became pregnant, is not within § 284 of the Penal Code.

      Appeal from a judgment of conviction for seduction under promise of marriage.

      John It. Reed, for app’lt; Walter H. Jay cox, Dist. Atty., and E. A. Carpenter, for the People.
   Brown, P. J.

The appellant was convicted at the court of sessions in Suffolk county of the crime of seduction under.promise of marriage. The indictment charged that the crime was committed in February, 1890, upon one Addie Oakley. _ Upon the trial the complainant's testimony as to the promise of marriage was as follows': “He asked me to have connection with him. I told him ‘Ho.’ I would not let him. I never let any man, and I would not let him. He said : ‘Addie, I promise you faithfully I will marry you.’ I never answered him. He asked me again. He said again : ‘Addie, I promise you faithfully I will marry you if I get youi into trouble.’ After that I gave in.”

‘ The testimony of the complainant, given before the committing magistrate, was read in evidence by the defendant, to the effect that the promise of the defendant was that, if she should become pregnant, be would marry her, and that she did not remember of his making any other promise. It appeared also that she told her father that defendant had promised to marry her “if he got her into trouble.”

The court refused the defendant’s request to charge the jury that, if they found that the promise to marry was conditional upon the complainant’s becoming pregnant, they must acquit; and the exception to this refusal presents the only question necessary to be considered upon this appeal. Under the charge of the court, we must assume that the jury may have found that the promise to marry was conditional upon the complainant’s becoming pregnant. It is very questionable, I think, whether the testimony permitted them to find any other promise; but assuming, as it is claimed by the prosecution, that it did, the question is presented whether such a conditional promise is sufficient to bring the case within the statute. The crime is defined as follows: “A person who under promise of marriage seduces and has sexual intercourse with an unmarried female of previous chaste character is punishable,” etc. Pen. Code, § 284.

The case relied upon to support the conviction is that of People v. Hustis, 32 Hun, 58. So far as I am informed, this is the only authority that sustains this view of the statute. The decision was by a divided court, and the correctness of the conclusion there reached was questioned in People v. Van Alstyne, 78 Hun, 509; 61 St. Rep. 232. The prevailing opinion in People v. Hustis is based upon the assertion that the question had been decided by the court of appeals in Kenyon v. People, 26 N. Y. 203, and Boyce v. People, 55 N. Y. 644. In those cases the promise testified to was that the accused would marry the prosecutrix if she would consent to have connection with him, and neither case presented the question of a promise conditional upon pregnancy. The distinction between the two promises is apparent. 1 In the case of a promise conditional upon immediate intercourse, the condition is performed at thé moment of the sexual act, and the promise to marry becomes absolute at once. Seduction in such a case is clearly accomplished under a promise to marry. In the case of a promise conditional upon pregnancy, there is no absolute promise at the time of the intercourse, and the condition is such that there may never be any. It is impossible to have seduction under a promise to marry when the only promise at the time of the seduction is one depending upon an event that may never occur. To bring a case within the statute, the promise of marriage must be the inducement to, and must exist at the time of, the act of sexual intercourse. The case of People v. Hustis has no support in the authorities cited to sustain it, and should be overruled. The exception referred to was well taken, and the judgment must be reversed, and there must be a new trial.

All concur.


text:
    The People ex rel. Oppenheimer Publishing and Printing Company, App’lt, v. George People, as Supervisor, etc., et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed October 26, 1894.)

    1. Towns—Auditobb.
    A board of town auditors, in auditing and allowing a claim, may act on its own knowledge of the matter.
    2. Same—Review.
    The court has power to review its decisions upon the facts, but will not overrule its judgment, unless in case of clear error.
    Certiorari to review the action of the board of town auditors in auditing and allowing relator’s claim against the town.

      John J. Gleason, for relator; A. N. Weller, for reep’ts.
   Brown, P. J.

This proceeding is a certiorari to review the action of the board of town auditors in auditing and allowing the claim of the relator. The claim was for printing ballots and other necessary supplies for the town election held- in April, 1893. The ballots were printed under a special contract for $3.40 per thousand, and the total amount charged for that work was not in dispute, and was allowed as it was stated in the bill. The other supplies were grouped under 13 different heads, and the amounts charged were in each instance materially reduced by the board of audit. The only question before us is whether the board should have allowed the claim at the sums charged for the work. It does not appear from the papers before us that there was any oral testimony before the auditors as to the reasonable value of the service, or of the going prices of the work. The bill, when presented, was verified by the treasurer of the relator. His affidavit stated that the account was correct; that the service had been rendered; and that no part thereof had been paid. The return states that, upon presentation of the bill, the relator was informed by the board of audit that it regarded the charges as excessive, and that it would hear the claimant upon the items of the bill; that the claimant’s president appeared before the board, and produced samples of the work, and argued in support of the charges. He was not sworn, nor did he produce any witness as to the value of the work, and the claim was therefore submitted to the board.

We are of the opinion that the action of the board must be sustained. They examined and audited each item of the account, and, in fixing the sum allowed, they were not necessarily confined to the claimant’s estimate of the value of its work. It was said in People ex rel. Donlon v. Board of Town Auditors, 74 Hun, 83; 56 St. Rep. 167, that it is the habit of such bodies to seek information from any quarter where it is obtainable, and we presume the practice is legitimate. They may act upon their own knowledge, acquired by observation.” And it is a fair presumption that the respondents had some knowledge as to the prices ordinarily charged and paid for printing ballots and election supplies. But there was in the facts before the board evidence which sustains the conclusion that some of the charges were excessive. The contract price for printing the ballots was $3.40 per thousand, but for printing sample ballots the relator had charged nearly four times that amount. Ho explanation appears in the appeal papers for this very material increase in the charges, although the learned counsel for the relator made one upon the argument; but the facts were for the consideration of the auditors, and we cannot interfere with their judgment. Samples of the work are contained in the appeal book, and in many instances the charges appear to us to be excessive. The respondents, in auditing the claim, act judicially, and,' while we have the power to review their decision upon the facts, their judgment should not be overruled unless it is clear that they have erred. We are satisfied in this case with their conclusion, and their award should be sustained.


text:
    William W. Kirby, App’lt, v. Charles R. Colwell et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed October 26, 1894.)

    Attachment—Vacation.
    Where, upon a motion to vacate an attachment, the only question presented relates to the existence of plaintiff’s alleged cause of action, it should not, if one of fact and not of law, he decided upon affidavits.
    Appeal from an order vacating and setting aside an attachment.

      John Sabine Smith for app’lt; Philo P. Safford for resp’ts. ■
   Brown, P. J.

This action was brought to recover for alleged services rendered by the plaintiff for the defendants. The defendants were residents of the state of Hew Jersey, and upon that ground an attachment was granted. The motion to vacate the ■attachment was based solely upon the ground that the plaintiff had no cause of action against the defendants, and the affidavits presented to the court in support of that motion denied the making of the contract or the rendition of the services which were the basis of the plaintiff’s claim. The plaintiff read affidavits in support of his claim, and upon all the papers the merits of the plaintiff’s claim was seriously in dispute. The learned judge presiding at the special term decided the matter in issue in favor of defendants, and vacated the attachment.

We are of the opinion that when, upon a motion of this character, the only question presented relates to the existence of plaintiff’s alleged cause of action, and is one of fact, and riot of law, it should be left for determination at the trial, and should not be decided upon affidavits. Such is the rule stated in Lowenstein v. Salinger, 42 St. Rep. 414; 17 N. Y. Supp. 70; Brown v. Wigton, 45 St. Rep. 135; 18 N. Y. Supp. 490; and Johnson v. Hardwood D. & Trim Co., 79 Hun, 407; 61 St. Rep. 502. In this case there is no dispute as to the non-residence of the defendants, and they have ap- - peared in the action solely for the purpose of moving to vacate the attachment. If that is set aside, the plaintiff will be denied the right of a trial in the courts of his own state, and will be compelled to abandon his suit, or renew it in a foreign jurisdiction. The cause of action set out in his complaint is supported by his own oath and by other competent evidence. Under the laws of the state, he is entitled to a trial by jury, and he should not be deprived of that right unless the facts presented to the court in relation to his claim are undisputed, and the legal conclusion to be drawn therefrom certain.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with costs.

All concur.


author: Dykman, J.

text:
    Gabriel Tuthill, Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed October 26, 1894.)

    Damages—Excessive.
    A judgment for $18,500 in an action for personal injuries, is not excessive, where the injuries are permanent and will finally render the plaintiff helpless.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      W. C. Beecher, for app’lt; Vanamee, Watts & Vail, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon a-verdict in favor of the plaintiff for $18,500, and from the order denying the motion of the defendant for a new trial upon the minutes of the court. The action was brought for the recovery of damages resulting to the plaintiff from personal injuries received upon the defendant's railroad. The principal question litigated upon the trial had reference to the extent and permanence of the plaintiff’s injuries, and the amount of damages which he should receive, and the appeal is presented to us in substantially the same way; and a. perusal of the case shows that the jury was entirely justified in -finding the defendant guilty of negligence, and the plaintiff free from negligence, which contributed to the injury. In respect to the injuries of the plaintiff, the testimony of the physicians presented by him and by the defendant led inevitably to the conclusion that the injuries-to the plaintiff were permanent and of extreme severity. One of the physicians stated that he looked upon the case as one of progressive paralysis, and that the consequences reasonably certain to follow were that the plaintiff would become helpless after a time; that he would need attendance, probably, to dress him'and feed him, after a time; and that he thought he would need-medical attendance. He then stated as follows: “ He is suffering from a concussion of the whole nervous system, including the spinal column, particularly the spine and brain. He stands in a stooped position, trembling, uncertain as to his legs supporting him, the right leg more uncertain than the left; hand trembling, and head dizzy, and ringing in the ears. He has not good control of his legs, and uses them as if they were artificial; nOgpower to-grasp objects with the right hand. On stripping him, I found tenderness the whole length of the spinal column; increasing tenderness beginning at the upper dorsal.”

Another physician, who was the attending physician to the plaintiff, stated as follows: “In my judgment his condition is incurable. His general nervous condition will grow worse; likewise his paralysis; and judging from his past condition, and the progression that has been made in that direction, his mental condition will keep. pace with it. That would be my judgment, having watched him closely from the beginning. He will need medical assistance. He does at the present time, and will con-' tinue, in my judgment. He will need the attendance of a nurse-—probably more than one. This condition is progressive. In my judgment, it is certain to become worse; that is my judgment. I think he will never be able to control his action, or any occupation.”

This testimony, in connection with others which it is deemed unnecessary to recite, exhibits the plaintiff in a most deplorable condition, and we are by no means prepared to say that the amount awarded to the plaintiff is in excess of compensation for the injuries he has sustained.

Judgment and order appealed from should be affirmed, with costs.


text:
    James M. Stillwell, App’lt, v. Benjamin W. Stillwell, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed October 26, 1894.)

    Amendment—Oeeeb oe judgment.
    An offer of judgment cannot be ainended after acceptance and payment of the judgment.
    Appeal from an order allowing an amendment of an offer of judgment.

      É. pi. & A. J. Prime & Burns, for app’lt; John F. Brennan, for resp't.
   Dykman, J.

This is. an appeal from an order amending the defendant’s offer of judgment, and the judgment entered on such offer, and the acceptance thereof. The complaint in the action alleges that in June, 1875, the grandfather of the plaintiff deposited in the Yonkers Savings Bank $1,500, in the name of Benjamin W. Stillwell, in trust for James M. Stillwell, the plaintiff, and delivered the bank book to the defendant, in trust for the plaintiff; and the defendant agreed to'hold the book, money, funds, and accumulations for the plaintiff, and the understanding was that the money was to constitute a fund whereby the plaintiff would be enabled to build on lands which the grandfather would thereafter give to the plaintiff, and that the principal and accumulations of interest should be paid to the plaintiff when he should arrive at full age; that the plaintiff did arrive at full age on the 8th day of February, 1893; and that thereafter the plaintiff requested and also demanded the money from the defendant and he refused to pay it over. This suit was then commenced, and the defendant answered on May 24, 1893, and the next day served a written offer to allow judgment against him for $3,252.60, and interest at 4 per cent., and costs, which offer was accepted the same day. Judgment was entered on the offer and acceptance. The defendant, after the acceptance of the first offer, discovered what he claims was a mistake, and served a second offer for $100 less than the first, claiming a mistake in that amount, with notice of withdrawal of the first offer. Plaintiff’s attorney then served a notice that the first offer, having been accepted, could not be withdrawn, and called upon the attorney for the defendant to move promptly for the relief to which lie might deem himself entitled. The defendant did not move, and the plaintiff then made a motion at the special term; and, after hearing thereat, an order was made setting aside the service of the first offer, unless the plaintiff should stipulate to reduce the judgment by $100, and granting costs of motion to the plaintiff. The stipulation to reduce the judgment was made and filed. The defendant paid the judgment June 3,1893, and, in July thereafter, claims to have discovered this mistake in the offer, but made no motion to correct it or to obtain any relief until the middle of December, 1893, and then made a motion at the special term to amend the offer and judgment so as to reduce the amount $200, besides the $100 deducted by the stipulation already mentioned, and such an order was made. The plaintiff has appealed from that order, and, in our view, it was erroneous.

The offer and acceptance constituted a contract which the court coqld not set aside on motion. It was equally powerless to order or frame an amendment that would operate to change a contract, without the consent of both parties. The contract made by the offer and acceptance by the parties required the agreement of both parties to make it effectual. The contract became executed when, in the month of June, 1893, the judgment upon the offer and a cceptance was fully paid and satisfied. It is unnecessary to decide here what course should have been pursued on the part of the defendant in case an error had crept into his offer, but the order of the special term compelled the defendant to deduct $200, besides the $100 deducted by the stipulation which the plaintiff made. That is plainly erroneous, and the order should be reversed, with 10 costs and disbursements.