author: Bischoff, J.

text:
    Edward H. Van Infen, Resp’t, v. Mail and Express Publishing Company, App’lt.

      (New York Comnon Pleas, General Term,

      Filed November 4, 1895.)

    1. Libel—Bribery of voters.
    A publication, which charges plaintiff of bribing voters, is libelous per se and entitles the plaintiff to maintain an action therefor without proof of special damage.
    2. Same—Identification of plaintiff.
    Such publication is none the less libelous because the accusation does not designate the plaintiff by name, if the allusion is pointed by intrinsic reference.
    3. Same.
    In such action, the plaintiff may show by extrinsic evidence that the publication refers to him, though it does not name him.
    4. Evidence—Hearsay.
    Where, in an action for libel, plaintiff testifies on cross-examination that • he had previously sued another person in another country for publishing the same defamatory matter, and that it was orally agreed in court, pending the trial, to compromise the action on the tendering by defendant therein of a written apology, to be approved, and the payment of damages to be named, by the court, testimony given by plaintiff on his redirect examination as to the terms of the apology and the statements of the lord chief justice are not objectionable as hearsay evidence.
    5. Same—Conclusion.
    Where the article published states that “the London head of a large New York firm of cloth jobbers ” was the leader of an undertaking to , raise money in England to bribe voters in the United States, a question, addressed to the plaintiff upon his direct examination, “Is there any other person whatever, than yourself, who is the London head of a New York firm of cloth jobbers ? ” does not call for a conclusion.
    6. Same—Libel—Reference to plaintiff.
    The testimony of a witness for plaintiff, in action for libel to the effect that the plaintiff held a leading position in the trade for many years, is material, as tending to identify the plaintiff’s firm with the “ large New York firm of cloth jobbers,” alluded to in the foregoing publication.
    7. Appeal—Harmless error.
    The admission of incompetent evidence is cured by instructing the jury to disregard it.
    8. Trial—Instructions.
    Where the court, in an action for libel has instructed the jury that exemplary damages could not be awarded, the refusal to charge “'that the publication of other similar articles in other papers immediately prior to the publication of the article complained of, is a matter the jury must consider in mitigation of damages,” and “the fact that the same matter, substantially, was published extensively in the morning papers of the same day is to be considered by the jury in mitigation of damages,” is proper.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Joseph E- Choate, for app’lt; Benjamin F. Tracy and Walter 8. . Logan, for resp’t.
   Bischoff, J.

The matter for the publication of which this action was brought appeared in the defendant’s newspaper, the Mail and Express, issued upon the afternoon of November 7,1892, and read as follows:

“ British Gold to Help Cleveland.

\

“ Democrats and Their English Allies Attempt to Purchase Votes —Americans will Resent the Insult.

“Not the First Time that the Claimant has Appealed to His Free-Trade Friends Across the Sea to Come to his Assistance —The Workingmen will Give Their Answer to This Diabolical Outrage To-Morrow—The Closing Days of a Spirited Campaign.

“ The Cobden Club of England has apparently become tired of trying to influence United States elections in behalf of Democratic free-trade candidates by spending millions of dollars in the campaigns here, and the friends of the free-trade claimant have had to hustle about Great Britain themselves to get the money which English manufacturers are willing to give up to buy votes for their friend Cleveland, and to kill their most hated enemy, McKinley Bill. The account of the raising abroad of a great corruption fund by protection America’s enemies and Free-Trade Cleveland’s friends has just been cabled over. The London head of a large New York firm of cloth jobbers is reported as the leader of this movement to get together and send to America nearly half a million of British gold with which to push the cause of the Anti-Tariff Democracy and its candidate for the presidency, Cleveland. To him and his representatives, the mill owners of Bradford, Huddersfield, and other big manufacturing and woolen-jobbing centers, under representations that only under Cleveland as president could the American market be opened to them, gave freely of their money, to help the claimant’s campaign. * * * The claimant’s friend in London refused to deny to the press that he had English money to such an amount to be spent on Cleveland.”

Argument is of course unnecessary to demonstrate the meaning of the publication. That it was intended to, and did in fact, charge an attempt by means of bribery to corrupt the elective franchise of citizens of the United States, thereby to debauch such citizenship itself, must be patent to every one from mere inspection. The offense, because of its tendency to destroy social and political order, is regarded by all virtuous citizens with abhorrence, and exposes the person accused thereof to infamy, and the scorn, hatred, and contempt of others. If, therefore, the accusation, being false, was published of and concerning the plaintiff, and so understood by those who knew him, Bourke v. Warren, 2 Car. & P. 307, it was, aside from its imputation of criminality, libelous per se, and entitled the plaintiff to maintain the action without proof of special damage. Morey v. Association, 123 N. Y. 207; 33 St. Rep. 49; Witcher v. Jones, 43 St. Rep. 151; affirmed 137 N. Y. 599; 51 St. Rep. 929; 13 Am. & Eng. Enc. Law, pp. 297-308. It was none the less libelous that the published accusation did not designate the plaintiff by name, if by intrinsic reference the allusion was pointed. Van Vechten v. Hopkins, 5 Johns. 211; Gidney v. Blake, 11 id. 54; Sumner v. Buel, 12 id. 475; Townsh. Sland. & L. § 343. Whether or not the allusion was to the plaintiff was á question of fact, Green v. Telfair, 20 Barb. 13, which, within the rule obtaining in the trial of civil cases, was not required to be determined beyond the possibility of reasonable doubt. Ferry Co. v. Moore, 6 N. E. 293. The inquiry concerned the probability of the fact .from the evidence (Goodrich v. Woolcott, 3 Cow. 231, 239), and, scrutinizing the latter, we are of the opinion that there was justification for the jury’s conclusion that the defamatory article alluded to the plaintiff, aud that it was so understood by those who were conversant with the premises. This, without reference to publications in other newspapers, to the admission of which in evidence the defendant objected. The language, “ the London head of a large New York firm of cloth jobbers,” was fairly susceptable of an interpretation that the member at the time in charge of the firm’s London branch was intended to be referred to, and testimony adduced for the plaintiff supported a reasonable inference that the designation was applied to him. From such testimony it appeared that the plaintiff, at the time of the publication of the defamatory matter, was, and for many years ha’d been, the senior member of E. H. Van Ingen & Co., merchants at New York, in foreign and domestic woolen goods, having a branch of their business at London ; that the firm was prominent in and generally known to the trade as cloth jobbers; that no other New York firm in the like business had a branch in London ; that for many years the plaintiff had, at regular intervals, visited his firm’s London branch, upon which occasion.he assumed charge of the business there, and personally conducted negotiations - with English manufacturers for the supply of merchandise; and that at the very time of the publication he was ■ in London upon one of such visits, and in charge of his firm’s business. No testimony for the defendant was adduced to challenge the fact of the allusion. For the reasons stated the motions for dismissal of the cómplaint and the direction of a verdict for the defendant were properly denied.

Upon cross-examination of the plaintiff the defendant’s counsel elicited the facts that the plaintiff had previously brought an action in England against the Dalziell News Company to recover damages for the publication of the same defamatory matter, and that it was orally agreed in court by the parties and their solicitors and counsel, pending the trial thereof before the lord chief justice, to compromise the action upon the tender by the' defendant of a written apology, to be approved by the court, and the payment, in addition to the costs, of a sum for damages, also to be named by the court. Having maintained the relevancy and materiality of this testimony by inquiry into the terms of such oral agreement, and the manner in which it was carried out, the defendant could not thereafter, with consistency, object to the plaintiff’s testimony upon his redirect examination with regard to what was said and done at the time by the several persons concerned in the making of the agreement and its performance, since only from such statements and the concomitant acts of the persons making them could the terms of the compromise agreement be accurately ascertained. Obviously, the inquiry upon the redirect examination was aimed to show only that certain statements were made, and certain acts done, with the purport of still further showing what the agreement entered into and performed was, and not to ascertain whether or not the substance of what was said or written at the time was true or false in point of fact. Neither the apology nor the statements of the lord chief justice were therefore objectionable as hearsay evidence. Underh. Ev. § 51.

Interpreting the inquiry addressed to the plaintiff upon his direct examination, “ Is there any other person whatever, than yourself, who is the London head of a New York firm of cloth jobbers? ” as calling upon the witness to say whether or not any other New York firm of cloth jobbers maintained a branch of their business at London, in the charge of a member, it did not necessarily call for the statement of a mere conclusion or opinion. The subject-matter of the inquiry was open to the objective perception of one acquainted with the merchants of both cities, as the plaintiff was shown to be. Sweet v. Tuttle, 14 N. Y. 465, 471; Knapp v. Smith, 27 id. 277, 281.

The defendant’s1 editor, called as a witness for the plaintiff, testified, under objection on the ground of immateriality, that the article published and complained of was written under his direction, and that the cable therein referred to was an alleged cable published in several morning newspapers of the same day. Copies of the newspapers alluded to were identified by the witness, .and the alleged cable which named the plaintiff admitted in evidence, under the like objection of the defendant’s counsel. We are of the opinion that the evidence was admissable to show actual malice of the defendant, but, assuming it to have been inadmissible' for any purpose, the error of its admission was cured by the instructions to the jury, made at the request of the defendant’s counsel,— that, in determining whether or not the allusion in the publication complained of was to the plaintiff, they must disregard all evidence of the publication by others of the same 'matter. Chesebrough v. Conover, 140 N. Y. 382, 389; 55 St. Rep. 728. The instruction to disregard the evidence admitted under objection and exception was equivalent to a direction that it be stricken from the record. Holmes v. Moffat, 120 N. Y. 159, 162; 30 St. Rep. 799.

The testimony of the plaintiff’s witness Willis, which was to the effect that the plaintiff held a leading position in the trade for many years was material, as tending to identify the plaintiff’s firm with the “large Hew York firm of cloth jobbers” alluded to in the publication complained of.

The question asked of Leahy, the plaintiff’s partner, and a witness called in his behalf, with reference to the London house of E. H. Yan Ingen & Co., “And who is the head of that?” called for a fact, and not a conclusion. Sweet v. Tattle, supra; Knapp v. Smith, supra. The further question addressed to the same witness, “Do you know of any other London head of a Hew York firm of cloth jobbers?” called for an affirmation or ne gation of knowledge only, and was not objectionable upon that ground.

Ho error resulted from the court’s refusal to charge “ that the publication of other similar articles in other papers immediately prior to the publication of the article complained of is a matter the jury must consider in mitigation of damages,” and “ that the fact that the same matter, substantially, was published extensively in the morning papers of the same day is to be considered by the jury in mitigation of damages.” The plaintiff, upon proof of the libel, was at least entitled to compensatory damages, and, the court having instructed the jury that exemplary damages were not to be awarded, a charge as requested by the defendant’s counsel would have been irrelevant and misleading. Witcher v. Jones, 43 St. Rep. 151; cases in note to McAllister v. Detroit Free Press Co., (Mich.) 15 Am. St. Rep. 318, 339, etc. Furthermore, no such defense in mitigation was pleaded. Code Uiv. Proc. §§ 508, 535, 536; Willover v. Hill, 72 N. Y. 36.

The defendant’s further requests to charge “that, unless the jury find actual malice on the part of the defendant, they can give no exemplary damages,” and “ that actual malice consists in a willful intent to injure the plaintiff,” were plainly immaterial and irrelevant, in view of the fact that the court charged that, as matter of law, the plaintiff was not entitled to exemplary damages.

The court substantially charged the defendant’s eleventh and twelfth requests, in the- following language: “That the defendants are not responsible for anything, whether in any other newspaper, or for any damage done to plaintiff by any such other publication.”

Obviously the request to charge “ that it is necessary for the plaintiff to prove to the satisfaction of the jury that the plaintiff was known as ‘the London head of a large New York firm of cloth jobbers,’ before they can find a verdict for the plaintiff,” was properly refused. It was not necessary to. the maintenance of the action that before the defamatory publication the plaintiff had attracted general notice under the specific appellation which the defendant may have conceived for the occasion. The pertinent and material inquiry for the jury was whether or not the allusion to the plaintiff, by whatever description, was such that those who knew him were reasonably justified in their conclusion that he was the person intended to be accused. Bourke v. Warren, supra, approved in Miller v. Maxwell, 16 Wend. 9, 18. The judgment and order appealed from should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Giegerich, J.

license: Public Domain

text:
    Adolf Green, Pl'ff, v. John R. Martinez Heruz, as Executor, etc. et al., Def’ts.

      (New York Common Pleas, Equity Term,

      Filed November 19, 1895.)

    1. Colonial grants—Bed oe stream.
    The bed of Harlem creek passed under the grants of Governors Nicolls and Dongan, and did not become property of New York city under the Dongan charter of 1686.
    2. Mortgages—Discharge by lapse or time.
    The purchaser at foreclosure sale, in an action to which the mortgagor is defendant, has title free and clear of a deed of trust for creditors executed by the mortgagor after the mortgage and before the foreclosure, where the deed of trust is silent as to the duration of the trust, and more than twenty-five years have elapsed from its execution.
    3. Same—Deed or trust.
    The trust, in such case, is deemed discharged and the estate reverted to the grantor.
    4. Vendor and purchaser—Rescission.
    A purchaser of land‘is justified in refusing to complete the purchase, and is entitled to recover back his deposit and expenses in searching the title, where there are unpaid taxes which are a lien on the property.
    Action by Adolf Green against- John R. Martinez Heruz, as executor, and others, to recover the amount of a deposit made on a contract for the sale of certain real estate, situate on the south side of 107th street, between 2d and 3d avenues, and known as “No. 212 East 107th Street,” in the city of New York, and counsel fees incurred in the examination of the title; the ground alleged being that defendant could not give a good and marketable title to the premises. Judgment for plaintiff.

      Goldfogle & Oohn (Charles L. Cohn, of counsel), for pl’ff; Ambrose G. Todd (Beeves & Todd, of counsel), for def’t Heruz; Mandelbaum Bros. (Maos Mandelbaum, of counsel), for def’t Anderson.
   Giegerich, J.

The plaintiff refused to accept the title offered upon there'grounds, which will be considered separately, the other objections having been waived upon the trial.

The first objection is that a portion of the premises in question, was included and situated within what was formerly a navigable stream of water, commonly known as the “Harlem Greek and M'ill Pond,” the title to which did not vest in the defendants or their grantors, but is vested either in the people of the state of New York or in the city of New York, It appears by the conceded facts that the premises in question lie within what was formerly the “Town of Harlem,” and formed part of the lands and premises which were granted by the patents hereinafter referred to, under which, through mesne conveyances, the defendants claim title; that Gov. Nicolls, by a■ patent dated May, 1666, granted unto the freeholders and inhabitants of the town of Harlem, “their heirs, successors, and assigns, and to each and every of them, their particular lots and estates in the said town, or any part thereof;”' that Gov. Nicolls by a second patent, dated the 11th day of October, 1667, ratified, confirmed, and granted unto the persons therein named, “as patentees, for and in behalf of themselves and their associates, the freeholders and inhabitants of the said town, their heirs, successors, and assigns,” the same premises granted by the last patent, “together with all the soils, creeks, quarries, woods, meadows, pastures, marshes, waters, lakes, * * * to ye said lands and premises within the said bounds and limits set forth;” and that these grants were further confirmed by Gov. Dongan by patent dated the 7th day of March, 1686. ’

It is claimed by the plaintiff that a portion of the premises in question was situated within the bounds of Harlem creek; that this creek at that point was navigable, and that the tide arose- and fell in it; that, therefore, the land between high and low water did not pass to the freeholders of said town by virtue of' Gov. Nicolls’s patents ; but that by the terms of the Dongan charter of April 27, 1686, the city of New York acquired title to the land between the high and low water marks on the whole circuit of Manhattan Island. Mayor, etc., of New York v. Hart, 95 N. Y. 443, which included the land covered by tide water in Harlem creek. ,The creek, it is conceded, has long since been filled up. There is no evidence in this case'that the said creek was'navigable- or subject to the action of the tides. Assuming, however, this to-have been the case, the lands, nevertheless, belong to the successors in interest of the freeholders, and not to the city. Breen v. Locke, 46 Hun, 291. In the case just cited, the supreme court, in the first department, held that lands situated along a creek which ran into the Harlem river at 125th street, which were covered by the waters of the river at high tide, passed to the freeholders by Govs. Nicolls’ and Dongan’s patents, and not to the city.

In speaking for the court, Mr. Justice Bartlett says:

“There would be no question here if this creek had been merely a tideless stream flowing into the Harlem. The difficulty arises from the fact that it was a stream through' which the tide from the Harlem river set back, so as to check the steady northerly flow of the creek which prevailed except when the tide was coming in,, and broadened the creek at the place where these premises were situated, from six feet in width at low tide to a width of two hundred feet at high tide. Did this setback of the tide, producing these effects, make the creek an integral part of the Harlem river ? We think not. An inspection of the topographical map between pages 39 and 40 of the printed case goes very far towards satisfying us on this point. It would seem very inaccurate for any one using language in its ordinary sense, to; speak of these premises, as shown on that map, as being situated on the Harlem river, or any part of it. Naturally a person, endeavoring to describe their location in general terms, would say they were partly in the bed and partly on the shore between high and low water mark of a creek leading into the Harlem. There was nothing covelike about this creek, even when the tide in it was high. The shore contours were those of a widened stream. The land in dispute was 989 feet from the main body of the Harlem river at high tide. It is difficult to perceive how the creek at this point could be of any value or importance to the city of New York in a commercial sense. The city was to be the seaport, says the court of appeals in Mayor, etc., of New York v. Hart, supra, and for this purpose its water front was to girdle the whole island, while the village (of Harlem) was meant for a rustic hamlet, whose inhabitants should own cattle rather than ships. But it does not seem to us that the portion of this creek upon which these. premises were located constituted any part of the water front thus spoken of in that case. The fact that the creek there has been filled up, and that a part of it is ■covered by the roadbed of Eighth avenue, is pretty conclusive evidence that it was useless for use connected with shipping.”

These arguments apply directly to the case at bar. The premises appear,’from the map before me, to have been situated upon the Harlem creek, some 1.200 feet from the main body of the river at high tide, and in fact their situation with relation to the creek, river, and tide water appears to have been almost identical with that of the property described in Breen v. Locke, supra. This conclusion was arrived at bv Mr. Pirsson, in his able treatise on the “ Dutch Grants, Harlem Patents, and Tidal Creeks ” (page 75); and.by Hon. Richard O’Gorman and Hon. William C. Whitney, in opinions, submitted by them to the comptroller when they were counsel to the corporation, which will be found at pages 167 and 170 of the above treatise.

This question does not seem to have been directly before the court of appeals in Roberts v. Baumgarten, 110 N. Y. 380; 18 St. Rep. 162, cited by plaintiff’s counsel, which was an action in ejectment; and the decision rested upon the rule that the plaintiff in such an action must recover upon the strength of his own title, and rqay'not rely upon any supposed or actual weakness in that of his adversaries. Neither does it appear that the attention of the court was called to the language of the Nicolls and Dongan grants.

The second objection is that one Charles Henry Hall, former ■owner of the premises in question, did, by deed bearing date the •8th day of November, 1839, and recorded the 22nd day of November, 1839, convey the lot in question, with other lands, to Charles M. Hall and David P. Hall, in trust for the benefit of creditors, and that such trustees have not reconveyed the same to said Charles Henry Hall, or to any of his subsequent grantors. It appears by the conceded facts that the said Charles Henry Hall executed a mortgage to Edward Sanford, to secure the payment of $26,000, which bears date July 15, 1835, and was recorded on the 18th day of August, 1839; that the said Edward Sanford, by assignment bearing date the 17th day of August, 1839, and recorded the 14th day of September, 1839, assigned the said mortgage to Margaret McGowan, who brought suit for the foreclosure of the same in chancery before the vice chancellor, First circuit, against Charles Henry Hall, Edward Sanford, and others, and that in such suit the said David P. Hall, and Charles H. Hall were not made parties defendant; that a decree of foreclosure and sale was thereafter granted and entered in said action, and in pursuance thereof the premises were sold to Andrew McGown, from whom, through mesne conveyance, the defendants derive title, and to whom the master in chancery conveyed the premises by deed dated November 18, 1841, and recorded December 29, 1841. Plaintiff claims that the title to the premises in question still remains in David P. Hall and Charles M. Hall, their legal representatives and successors, subject to a sale thereof for the payment of the debts of the said .Charles Henry Hall, and that the said lands “could not be abend or sold without a discharge from the said creditors, or without some satisfactory proof that their claims had been adjusthd, satisfied, and paid. The deed of trust is silent as to the duration of the trust. There was no evidence abduced that the trustees ever entered upon the discharge of their duties, or took possession of the trust property. The only evidence presented upon the subject under consideration was the deed in question. As more than twenty-five years have elapsed since the creation of the trust, such trust must, under the circumstances, be deemed discharged, and the estate reverted to the grantor. 4 Eev. St. pt. 2, tit. 2, ch. 1, art. 2, § 67 (Banks Bros.’ 8th ed., p. 2240); Kip v. Hirsh, 103 N. Y. 565; 4 St. Rep. 257; Mills v. Husson, 140 N. Y. 99; 55 St. Rep. 309, whose equity of redemption was cut off by the decree of foreclosure and sale in the above suit, to which be was made a party defendant, and by which his heirs and assigns are bound. Hence the defendants hold the title to the premises in question free and clear of any claim of title on the part of the trustees. Assuming, however, but without so holding, that the trust has not ceased, the trustees would at most have a right to bring an action to redeem the premises from the mortgage, and his right, in my opinion, has been barred. Code Civ. Proc. § 379; Shriver v. Shriver, 86 N. Y. 575, 580.

The third and last objection is that the premises in question were sold in the year 1886 for the taxes imposed thereon for the year 1882. It appears from the evidence that such a sale had taken place, but that no certificate had been issued. The property, however, was not redeemed therefrom until after this action was brought. The plaintiff’s attorney attended at the placed fixed for the closing of the title, and objected upon this ground, and demanded the return of the deposit and the payment of $250 counsel fee, which was refused. The defendants did not then, nor at any time thereafter, offer to redeem or clear the premises in question from incumbrances, or make an offer of any kind. Irrespective of the tax sale, the unpaid taxes were a lien upon the property, and the defendant could not give a good and marketable title until they ymre discharged. The plaintiff was therefore justified in refusing to complete the purchase, and is entitled to recover back his deposit and expenses in searching the title. Morange v. Morris, *42 N. Y. 48 ; Hartley v. James, 50 N. Y. 38.

Judgment accordingly.


author: Lawrence, J.

text:
    Ætna Insurance Company, Pl’ff, v. The Mayor, Aldermen and Commonalty of the City of New York, Def't.

      (Supreme Court, New York Circuit,

      Filed October, 1895.)

    1. Taxes—Insurance companies.
    The act of 1886 in regard to the exemption of personal property of insurance companies from assessment was not intended to apply in cases in which assessment for taxation had been made prior to the passage of the act.
    2. Same—Recovery—Voluntary payment.
    Where an assessment is in fact utterly void, on the ground that the assesors had no jurisdiction to’impose the same, an action may be maintained to recover back money paid in satisfaction thereof, without first having the assessment set aside or vacated.

      Richards & Heald (Thomas P WicJces and Woolsey Car malt, of counsel), for pl’ff; Francis M. Scott, corp. counsel (George S. Coleman and James M. Ward, of counsel), for def’t.
   Lawrence, J.

This action is brought to recover money paid for taxes imposed on bank stock owned by the plaintiff in the years 1886, 1887, 1888. Three causes of action are stated in the complaint, one for each year. It is alleged that the plaintiff, at the times mentioned in the complaint, was a fire insurance company, duly organized and incorporated under and by virtue of the laws of the state of Connecticut, and doing business in fire insurance in this state, and was at such times the owner and' holder of the number of shares of stock of the several banks and banking associations, duly'organized under the laws of the United States and of the state of New York, located in the city of New York, set forth in the schedules annexed to the complaint. It is further alleged that, on the days set forth in the complaint, the defendant claimed and pretended that it had duly imposed upon the said respective shares of bank stock, owned by the plaintiff in the said banks, a valid tax for the amount set forth in said schedules; and that the amount of such taxes constituted a valid lien upon said respective shares of stock owned by the plaintiff, and a personal liability against the plaintiff, which the defendant could enforce against the plaintiff; and that, by the laws of the state of New York, the duty was imposed upon each of said banks and its officers to retain so much of any dividend or dividends belonging to the plaintiff as should be necessary to pay the amount of said tax eh upon the plaintiff’s said shares, until it should be made to appear to such officers that such tax had been paid. It is further averred that, upon such claim and pretense, the defendant illegally and unjustly exacted and collected the alleged taxes upon, plaintiff's bank shares, without the knowledge, direction or consent of the plaintiff, and under compulsion, on or about the days and dates set forth in the schedules, which moneys were wrongfully deducted out of the moneys, in possession of each of said banks, belonging to the plaintiff, against its will, and without its consent or knowledge; that the defendant had received and retained the said moneys without the plaintiff’s consent, and has refused to pay the same to the plaintiff. It is further averred that the pretended assessment and levy and collection of each of said taxes was illegal and void, and without jurisdiction, and in violation of the plaintiff’s rights, because said bank shares were, by the laws of the United States and by the laws of the state of New York, exempt from taxation, and that the plaintiff was specially exempt from taxation on its bank shares by virtue of chapter 679 of the Laws of 1886 of this state. All the allegations in respect to the illegality of the taxes and their collection, and as to the want of knowledge on the part of the plaintiff, and as to the compulsion or coercion in respect to such collection, are denied; and it is further alleged in the defendant’s answer that the plaintiff neglected to take any steps to review, correct or vacate any of the assessments, or to prevent the collection of the taxes levied thereon, and that the taxes were paid voluntarily, and without force or •duress, and that, if paid under any mistake, the mistake was of law, and not of fact. The claim of the plaintiff to exemption of taxation on the trial was based solely on the act of 1886.

Section 4 of that act reads as follows:

“ The lands and real estate of such insurance companies shall continue to be assessed and taxed where situated for state, city, town, county, village, school or other local purposes; but the personal property, franchise and business of all insurance companies incorporated under the laws of this state or any other state or country, and doing business in this state, and the shares of stock of said companies, shall hereafter be exempt from all assessment or taxation except as in this act prescribed; provided that this section shall not. affect the fire department tax of two per cent, now required to be paid.”

The act was passed on the 15th of June, 1886 (Laws 1886, p. 967.)

I do not think that the act can be held to affect the assessments which had already been made in the city and county of New York for that .year. The taxable status of property is determined by its condition on the second.Monday of January of each year ; and it has been held that where there has been a transfer of title intermediate that time and the 30th day of .April, the time of the closing of the books of annual record, the property is not entitled to exemption, althongh it would have-been entitled to such exemption if the transfer had taken place prior to the opening of the books. Sisters of the Poor of St. Francis v. Mayor, etc., of New York, 61 Hun, 355 ; 20 St. Rep. 925 , affirmed 112 N. Y. 677; 20 St. Rep. 985, on opinion of general term. See, also, Association for Benefit of Colored Orphans v. Mayor, etc., of New York, 104 N. Y. 581.

It is claimed, however, that, as the act was to take effect immediately (section 6), the tax imposed for 1886 could not be legally levied or collected. But it must be born in mind that the fourth section of the act of 1876 declares that the property, franchise- and business, and the shares of stock of such companies, shall “ hereafter be exempt from all assessment and taxation except as in this act prescribed.” The language of the act refers to a time subsequent to its passage, and it must be presumed that the legislature knew that, at the time of its passage, the status of all the property liable to taxation in the city and county of New York had become fixed by the closing of the books of the commissioners of taxes and assessments on the preceding'30th day of April. People v. Commissioner of Taxes, 142 N. Y. 351 ; 59 St. Rep. 34, remarks of Gray", J. There is nothing in the act which indicates that the legislature intended to change and upset all that had been done by the assessing officers in the city of New York in respect-to taxable property of fire insurance companies in that year. Applying to the construction of the statute, therefore, the well-settled rule that a statute is not to be deemed retroactive in its-effect unless it clearly appears that it was the intention of the legislature that it should relate to past transactions, it must be held that it was not the intention in this case that all previous assessments made upon the property of fire insurance companies in accordance with the" existing law for the year 1886, and the taxes to-be imposed thereon for that year, should be vacated and annuled. Reid v. City of New York, 68 Hun, 113 ; People v. McCall, 94 N. Y. 590 ; People v. Commissioners of Taxes, 91 id. 593. The case of People v. Commissioners of Taxes, 17 Abb. N. C. 377 (note), is not in conflict with this view, for the reason that the language of the act then under consideration was that “ no tax or assessment shall, after the passage of this act, be levied, assessed or collected,” etc. This language was imperative, and indicated a legislative intent to immediately prevent the levying or collection of any tax upon the lands referred to in this act. I am strengthened in my conviction that the act of 1886 was not intended to ayply to cases-in which the assessment for taxation had been made prior to the passage of the act by the decision of the court of appeals in the case of People v. Commissioner of Taxes, 91 N. Y. 593. In that case the statute under consideration (chapter 542, Laws 1880) provided that the capital stock and personal property of certain corporations, joint-stock companies, and associations should thereafter be exempt from taxation except as provided in the act. The-.act was passed June 1, 1880, and it was provided that it should take effect immediately. It was claimed that no tax for the year 1880 other than in the act specified could be imposed. The court. held, however, that, as the act contained no provision giving it a retroactive effect, it imposed no duty upon the commissioners of taxes and assessments as far as the taxes for that year were concerned.

These views lead to the conclusion that the defendant is entitled to have a verdict directed in its favor in respect to the cause of action relating to the taxes for the year 1886. The proper disposition to be made of the causes of action relating to the taxes of 1887 and 1888 depends upon other considerations. It is clear that under the act of 1886 the plaintiff was not taxable upon its personal property within this state during the years 1887 and 1888. The plaintiff, being a corporation existing under the laws of a sister state, was not within the jurisdiction of the commissioners of taxes or their deputies at the time the assessments were made upon which the taxes for those years were based, and it therefore results that such taxes were void. National Bank of Chemung v. City of Elmira, 53 N. Y. 49 ; In re New York Catholic Protectory, 77 id. 343; McLean v. Jephson, 123 id. 142; 33 St. Rep. 490. The taxes for those years having been illegally imposed, and the assessing and taxing officers having acquired no jurisdiction over the plaintiff, a nonresident corporation, I do not think that it can be claimed that the payments made by the banks were so far voluntary as to preclude the plaintiff from maintaining this action. Bruecher v. Village of Port Chester, 101 N. Y. 240; Peyser v. Mayor, etc., of New York, 70 id. 497; Strusburgh v. Mayor, etc., of Nrw York, 87 id. 452; Bank of Commonwealth v. Mayor, etc., of New York, 43 id. 184 ; Horn v. Town of New Lots, 83 id. 100.

The- rule which must govern in this case is well stated by Earl, J., in delivering the opinion of the court in Bruecher v. Village of Port Chester, supra. After adverting to the fact that the assessment in that case was void because the assessors had no jurisdiction to impose it, the learned judge says:

“ Hence it was not necessary for the plaintiff to institute any action or proceeding to vacate the assessment and thus have it annulled and set aside, before commencing this action. If the assessment had been merely irregular, informal, or unjust, the assessors having jurisdiction to impose the same, then, before an action to recover back the money paid in satisfaction thereof could be maintained, it would have been necessary to have the same vacated or annulled in some way, and thus removed as an obstacle out of the way. But where an assessment is in fact utterly void, on the ground that the assessors had no jurisdiction to impose the same, then an action may be maintained to recover back money paid in satisfaction thereof, without first having the assessment set aside or vacated.

There is no distinction in this respect between a tax and an assessment. National Bank of Chemung v. City of Elmira, 53 N. Y. 49 ; Newman v. Supervisors, 45 id. 676. The case of United States Trust Co. v. City of New York, 144 N. Y. 492 ; 64 St. Rep. 62, does not aid the defendant. There tbe assessing officers had jurisdiction, and the assessment was irregular, but not illegal. The distinction between an erroneous and an illegal assessment is clearly recognized by the court. See opinion, Gray, J., page 482, 144 N. Y.

The taxes for the years 1887 and 1888 having been illegally imposed on the plaintiff’s shares, it cannot, in my opinion, be successfully argued that the action of the .banks in paying the same to the receiver of taxes estops the plaintiff from maintaining this action. The banks were not the agents of the plaintiff for any such purpose. The amount paid over was a specific fund belonging to the plaintiff, which the banks delivered to the defendant’s officer without the plaintiff’s consent. In such case an action for money had and received ctm be .maintained for the recovery of the money from the party receiving it. Mason v. Prendergast, 120 N. Y. 536; 31 St. Rep. 497; Horn v. Town of New Lots, 83 N. Y. 100. I am therefore of the opinion that the plaintiff is entitled to a direction that a verdict be entered in its favor for the amount paid for .the taxes for the years 1887 and 1888, with interest from the dates of such payments.

Ordered accordingly.


author: O’Brien, J. Van Brunt, P. J.

text:
    Willcox and Gibbs Sewing Machine Company, Resp’t, v. Jehiel W. Himes, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

      1. Contracts—Construction—Lease of chattels.
    The lease of sewing machines for rental, based on the amount of goods . manufactured as shown by the monthly reports, but, in case no reports are made, at $35 for each machine, obligates the lessee to the $35, if he makes no reports, though he manufactures no goods.
    3. Same—Surrender—Question for jury.
    The question whether a conversation between the lessor and lessee of chattels amounted to a surrender, though the lessee retained possession,. was held in this case to be one for the jury.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    Action by Willcox & Gibbs Sewing Machine Company against Jehiel W. Himes to recover for the use of certain machines let to the firm of Himes & Vail, whom defendant succeeded. A verdict was directed fdr plaintiff, and defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.
    This action was brought upon a written contract made on the 11th day of February, 1882, by which the plaintiff let and hired to the firm of Himes & Vail, to which firm defendant succeeded, a number of its machines, upon the covenant that the lessee should use the machines in the manufacture of hosiery, shirts, and drawers, and should make monthly returns to plaintiff of the quantity of goods so manufactured therewith, and should make monthly payments coi’responding to such returns, according to a schedule of rentals therein agreed to by the parties. The contract further provided that the lessee should pay. to the lessor the sum of §25 for each machine leased by him during each month for which the returns and payments required'by the agreement had not been made. The defendant received eleven machines in all; the first having been delivered in February, 1882, and the last in April, 1884. Defendant made monthly returns and payments until January 1,1885. Thereafter, in December, 1891, this action was commenced to recover the sum of $25 per month for each machine delivered and retained by the defendant. The defenses are: The failure of plaintiff to allege or prove demand for the payments of the rates specified in the contract, or for the payment of $25 a month for each machine let; the failure to prove that the defendant used any of the machines; and the defense of surrender. On the trial, defendant proved that early in 1885 he made a return covering the period from October 1, 1884, to December 31, 1884, both inclusive, and that upon the face of the return were written the words, “Ho production.” Defendant then ■offered evidence tending to show that he had manufactured no goods by any of the machines after December 31, 1884, but such ■evidence was excluded. He proved, however, that in December, 1885, he had a talk with one Mr. Garrett, a representative of plaintiff, in which the latter said, “You áre not making any returns,” to which the defendant replied, “Ho sir; we are not using the machines, and we are going to send them back.” Mr. Garrett then urged him not to do so, stating that the plaintiff was ■getting up a new machine, which would be of great benefit to the trade, and would be exclusive. From this time (December, 1885) until 1891, Garrett was in communication with the defendant about this promised new machine, known as the “overlook”" machine. Upon the conclusion of this testimony the coúrt ■directed a verdict for the plaintiff, and ordered the exceptions to be heard in the first instance at general term.

      George W. Van Slyck, for pl’ff; Austen G. Fox, for def’t.
   O’Brien, J.

The first question relates to the construction of the written agreement entered into between the parties, and for its •discussion a reference to its salient features is necessary. It provided that, upon certain considerations therein expressed, the plaintiff—

“Doth hereby lease unto said lessee.” the machines (describing them), “and the lessee hereby agrees to keep and perform all the conditions of the lease, to wit:

“ First. * * * To pay unto the lessors, as rent for the use of the machines hereby leased; the following sums or rates for all goods made wholly or in part by the aid of said machines, or any ■of them, viz: (Then follow the rates.) But in all cases where the lessee shall make the returns and payments as hereinafter required, according to the following schedule of rentals, * * "x" the following amounts will be accepted by the said lessor, * * * viz.: (Then follows a schedule.) If, however, returns and payments are not made according to the provisions of this instrument, then the lessee shall be and is firmly held and bound to pay unto the lessor the amounts first hereinbefore specified; or said lessor may, at its option, demand and collect,.and said lessee hereby agrees to pay, the sum of $25 per month for each machine hereby leased during each and every month for which the returns and payments required by this agreement have not been made. * * *

“ Second. The said lessee agrees to keep correct record of all goods manufactured,” to be open to the inspection of said lessor, and to make returns monthly for all goods manufactured during the preceding month. “If no goods have been manufactured during said month, the said lessee shall so report.”

“Fifth. * * * But the lessee has the option at any time to surrender said lease and the machines mentioned herein, provided he shall have complied with all and singular the obligations of this instrument, 'and settled his indebtedness to the lessor thereunder; and upon such surrender of said lease and machines the lessee shall be discharged and released from all and any obligations, agreements, and covenants herein assumed by him.”

It will be noticed at the outset that the contract provided three different modes of payment,—one based upon the articles manufactured at certain schedule prices in the event of the failure of the lessee to make returns; another, the amount shown to be due by the returns when returns were made; and the third, the sum of $25 a month for each machine leased, as a rental during each month for which the returns and payments have not been made. It was thus in the power of the defendant to make returns, and so limit the amount to which the plaintiff would be entitled. If however the defendant failed to make returns, then there were two ways provided by which the plaintiff could exact payment. If it could obtain the information as to the articles manufactured, it could charge the increased fate; or, waiving this, it had the option to exact from the defendant a rental of $25 a month for each machine. The latter was the course followed. In the contract itself it will be found that nothing is said about the use of machines, but it is provided that the $25 is for each machine leased; not as contended for. by defdndant, for every machine used. We think the plaintiff’s contention is sound that the construction to be given to this language is the same as that to be given to contracts between landlord and tenant; and in an action for rent it clearly would be unavailing for the tenant to show that while he continue^ in possession of the premises he did not actually occupy them. So here, while the defendant continued possession of the machines, he was liable under the contract the same as a tenant under a lease. Our view as'to the construction of this part of the agreement is that, where no goods were manufactured, the defendant could so report and relieve himself from the payment of rental; but where he did not report or did not surrender the machines, but retained them, then he was liable to the plaintiff in the sum of $25 a month for each machine retained, whether used in the the manufacture of goods or not. This naturally brings us to a consideration of the evidence adduced upon the trial in support of the defense that report was made to plaintiff that no goods were being manufactured upon the machines, and that in December, 1885, an offer to surrender was made, which was not carried out because, at the request of plaintiff, the machines were retained. We think that, if evidence was offered to support this defense from which the j ury, could have legitimately inferred that the parties to the agreement understood the situation to be the same as it would have been had the defendant returned the machines, then it was error to direct a verdict and refuse defendant’s request to go to the jury upon this question. It will be recalled that early in 1885 defendant made a return covering the period from October 1, 1884, to December 31. 1884, inclusive, and that upon the face of the return were written the words, “Ho production.” As no returns were made for the year 1885, it may be that the court would have been justified in directing a judgment from that time down to the month of December, 1885, when as testified to by the defendant, he had the conversation with the representative of the plaintiff, Mr. Garrett, in which the latter said, “You are not making any returns,” to which the defendant replied, “Ho, sir; we are not using the machines, and we are going to send them back.” Mr. Garrett then said: “Ho, don’t do that. We want to keep in with you people, —a few of our friends. We are getting up a new machine, which is going to be a great benefit to the trade, and it will be exclusive. We propose to let you and Mr. McDowell have it, as you have been using our old machines.” Defendant further testified that from that timé he never used the machines. It is clear from the agreement that the defendant, by paying what was due up to December, 1885, when this conversation took place, could have surrendered the machines by returning them; and it is equally clear that such surrender and payment could be waived by the plaintiff and instead of being sent back, the machines could have been retained by defendant at plaintiff’s request, without his being liable to pay any rent therefor, provided they were not used in manufacturing goods. The defendant having given evidence from which it could be legitimately inferred that the provision of the contract as to the manner of surrender had been waived by plaintiff, followed up, as it was, by an offer of evidence tending to show that he had manufactured no goods by any of the machines after that time, we think a question was presented for the jury as to whether or not the parties to the agreement intended that the defendant should pay any sum whatever after he had ceased to use the machines, and-offered to return them, and had been requested not to do so. As appears by the record, Mr. Garrett, with whom such conversation took place, was in court, but did not dispute defendant’s evidence, nor deny his own authority in the premises; and while upon this appeal, the latter is called in question, the treasurer and secretary of plaintiff, who was intrusted with the management of the entire business, testified that Mr. Garrett “was manager for a number of years of the hosiery department, as it was called; that is,' the department'through which those machines are leased and operated. It is a special department of the business through which the machimes covered by the agreement put in suit here are leased and put on the market. He had entire charge of that matter under me. He had authority in that department to a certain extent. He would attend to the making oE the leases, and attend to the receiving of the returns and keeping up the records, and generally taking care of- that business in detail. Sometimes he would make visits to the lessees on behalf of the company. That was so from 1882 until 1890 or 1891,” We think that, upon such evidence, there was a question of fact presented, and that the jury could infer that, by reason of this conversation, the defendant refrained from surrendering the machines, and that both parties understood that the situation was the same as it would have been if he made the surrender in fact. This being so, the direction of a verdict was error, and there should be a new trial with costs to defendant to abide the event.

Van Brunt, P. J.

I concur in result. There was no question to go to a jury, the agreement of the parties was unambiguous, and nothing due if no goods were manufactured and report made; and the subsequent arrangement did away with the necessity of a report

Follett, J., concurs.


author: Lewis, J.

text:
    Emma McGrell, as Administratrix, etc., App’lt, v. Buffalo Office-Building Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Negligence—Elevators—Question for jury.
    The questions whether injuries to plaintiff's intestate were caused by-defective construction of defendant’s passenger elevator, and whether the operator of such elevator, before starting it, should warn a passenger of the age of nine and-a-half years as to how to protect herself from injury, are for the jury.
    Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.

      Wallace Thayer, for app’lt; O. M. Bushnell and Porter Norton, for resp’t.
   Lewis, J.

Plaintiff’s daughter, Maggie May McG-rell, was killed while -riding in an elevator in defendant’s building, in the city of Buffalo, on the 23d day of April, 1894; and this action was brought by her mother, as administratrix, to recover the damages sustained by the next of kin of the deceased by her death. She was nine years and six months old at the time of her death.

The defendant’s building was fireproof, and was occupied for offices. It was eleven stories in height, and had two elevators. Both of them were used for carrying passengers. The one in question was so arranged that it could be used also Eor transporting furniture and safes, and for that purpose the doorway of the car was three feet and eight inches wide, which was wider than would have been necessary, had it been intended for transporting passengers only. It was not provided with a door. The opening into the elevator well on the first floor of the building was but two feet eight wide. The elevator ear was five feet and one inch by four feet ten inches in size. Between the sides of the car and the walls of the shaft there was a space of three-and-a-half inches. The distance from the ground floor of the building to the first floor above was about fifteen feet. The door to the elevator shaft was seven-and-a-half feet high. Above the door was a wrought-iron cornice. The front of the elevator shaft, between the cornice and the first floor above, was constructed of wrought-iron, vertical bars, five-and-a-half feet long, one-quarter of an inch thick, and three-quarters of an inch wide, and which were three-and-a-half inches apart. . They were fastened to each end by a screw. There being no door to the car, there was nothing between the bars and the passenger who might be standing opposite the- opening in the car as it passed the bars.

The elevator was operated by hydraulic power, aud, when in full motion, moved at the rate ol eight feet per second. The plaintiff was employed, at the time of the accident, in an office upon the third floor of the defendant’s building. The deceased was left at home in the morning, and, without her mother’s knowledge or consent, left her home, and went to the defendant’s building, for the purpose of visiting her mother. It was the first time she had ever been in the building, and the first time she had been in an elevator. She went into the rooms of the occupant of the first floor of the building, and made known her wish to go to her mother’s room. She was directed to the janitor or superintendent of defendant’s building. He took her to the elevator upon the first floor, and directed the young man in charge to take her to the plaintiff’s room. The deceased entered the car, and took her place in the back part of it. She was the only passenger. The car was started about one minute after she entered. The conductor was called as a witness by the plaintiff. He testified that Maggie was standing in the corner of the car, as far from him as she could; that after he set the car in motion, and it had reached the top of the doorway in the shaft, the deceased ran forward, and caught hold of the bars of the elevator shaft above described; she was thrown down upon the floor of the car, and her head drawn in between the car and the vertical bars mentioned, the bars bending out sufficiently to allow her head to enter; that he at once stopped the car, but not in time to avert the disaster, and the child was killed.

The conductor was the only witness who described what occurred in the car, and while he insisted that the deceased voluntarily ran across the car, and seized hold of the bars, the manner of her falling, the position in which her body was found upon the floor of the car, showing that she probably took but one step before falling, and other circumstances described by the witness, presented a question of considerable doubt, whether the deceased in fact voluntarily ran across the car, and caught hold of the bars, or, as the car started, lost her equilibrium, and stepped forward, involuntarily, to regain it, and, in her efforts to save herself from falling, caught hold of the bars. There was evidence tending to show that it was a frequent occurrence for passengers to lose their equilibrium in this and other elevators. The conductor testified that he had operated elevators in other buildings in the city, which ran at a less speed than the defendant’s; that it was a frequent occurrence for people to lose their balance in them; that on at least forty occasions he had noticed passengers who were compelled to step about in elevators, in order to maintain an upright position as the car started ; that he had noticed such occurrences in the elevator in.question ; and that on one occasion a passenger in the defendant’s elevator had lost his balance as the elevator started, and fell over against the witness. Other witnesses testified that they had ridden in the elevator in question, and had frequently experienced a tendency to fall forward as the car started. - As the conductor applied the power at the time in question, the car attained its maximum speed when it had moved only about three feet. Ho question is raised as to the competency of the conductor to manage the elevator, nor that the space between the platform of the elevator and the vertical bars was too large.

At the close of the plaintiff’s evidence a nonsuit was granted, and the question presented by this appeal is whether there were any questions of fact which should have been submitted to the jury. Many grounds of negligence on the part of the defendant are urged by the appellant's counsel. It is conteded that the conductor unskillfully operated the car; that there should have been a door to the car; that the front of the elevator shaft should have been a solid wall, instead of the vertical bars; that, under the circumstances, the conductor should have instructed the deceased how to protect herself, and warned her of the danger of her- falling as the car started.

The relations betweeen the owner and manager of an elevator, and his passengers, are similar to those between an ordinary common carrier and those carried by him. There seems to be no reason for any distinction between the two classes of carriers. The dangers incident to the former means of transportation are quite as great, if not greater, than are incident to travel by railways. Ray, in his work on Hegligence of Imposed Duties of Common Carriers (section 96, chap. 17), says:

“There is no employment where the law should demand a higher degree of care, and diligence than in the case of persons using and managing elevators or lifting human beings from one level to another.”

The relations between carriers by elevators and their passengers are discussed in Treadwell v. Whittier, 80 Cal. 574; Mitchell v. Marker, 10 C. C. A. 306; Goodsell v. Taylor, 41 Minn. 207. ‘ It is manifest, from the description of the elevator shaft and car, that there was danger that passengers would come in contact with these stationary, vertical bars, as the car was passing them, and by so doing might receive bodily injuries. Had the car been provided with a door, the accident in question would not have occurred. The conductor was aware that the child was quite likely to lose her equilibrium if he started the car rapidly. He knew, or should have known, that she was to be thrown down on the floor of the car. His observation had taught him that strong adults were liable, as a car starts, to lose their balance, and are frequently compelled to step about in the car, to prevent falling. The evidence tended to show that the conductor started the car on this occasion with its usual rapidity. He was aware that the deceased was a mere child; that she did not possess the ability to care for herself that an adult person would under the ciicumstances. There was no seat or railing in the car, but there were two projections into the body of the car, —one on each side,—which would have afforded a resting place for the child’s hands. Under ordinary circumstances, elevator conductors would not be expected to give instructions to their passengers, but here was a small child alone in the" elevator, and presumably unaccustomed to riding in one; and, under all the circumstances, we are of the opinion that it was a question which should have been submitted to the jury, whether it was not a negligent act on the part of the conductor to start the car at its full speed without first warning the deceased, and giving her some instructions as to how to protect herself. It was also a question for the jury whether the omission to provide, the elevator car with a door, under the! circumstances, was not evidence of negligence on the part of the defendant.

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

All concur.


text:
    Aurora and Buffalo Plank-Road Company, Resp’t, v. Louis Schrot, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

      1. Plank boad—Cobfobate existence.
    The statute, which extends the corporate existence of a plank road company, impliedly authorizes it to continue to collect tolls.
    3. Same—General act.
    The provision in chapter 566 of 1890, which exempts certain persons from the payment of tolls on turnpikes and plank roads, applies only to road companies incorporated under the general law, not to companies incorporated by special act.
    Appeal from a judgment of a'County court, reversing the judgment of a justice’s court in favor of defendant.

      George G. Miller, for app’lt; F. J. Blackmon, for resp’t
   Lewis, J.

— This action was brought in a justice court, in the year 1894, to recover of the defendant $17.35, claimed to be due from him in tolls for the use of the plaintiff’s plank road. The justice rendered a judgment for the defendant. His judgment was reversed by the county court, and an appeal was taken from the judgment of the county court to this court. The facts were stipulated before the justice as follows:

“ That plaintiff is a domestic corporation, created under chapter 191 of the Laws of 1846, and the several acts amendatory thereof and supplementary thereto. That the plaintiff has five continuous miles of plank road, and has maintained a toll gate for more than ten years, for the collection of "tolls. That the plaintiff resides within one-half mile of said toll gate and has so resided there for' two years. That the defendant has passed through said gate, and would, if liable for the tolls at said gate, be liable to the plaintiff to the amount of seventeen dollars and thirty-five cents. That in passing said gate defendant was not goirfg to any grist mill, church, or religious meeting, or engaged in any transportation of other persons or property. That the plaintiff has demanded said toll of the defendant. The plaintiff’s charter was extended by chapter 137 of the Laws of 1863 to May 11, 1888. That by the provisions of chapter 135 of the Laws of 1876, as amended by chapter 253 of the Laws of 1879, the existence of said corporation was continued by virtue of a resolution of the board of supervisors, for twenty-one additional years.”

Section 8 of the act of 1846, incorporating the plaintiff, provided that whenever any five continuous miles of road should be completed it should be lawful for the board of directors to cause a toll gate to be erected, at which the company was authorized to demand and receive toll, not exceeding, for a vehicle drawn by one animal, three cents; if drawn by more than one animal, for every such additional animal three cents, etc. The act of 1863, extending the corporate life of the plaintiff, provided that all the general laws of the state should remain in force, and binding upon the plaintiff during the extended term. A general act for the incorporation and government, of planlc-road and turnpike road companies was passed in 1847 (chapter 210). By section 35 of that act plank roads incorporated under it were authorized to erect toll gates upon their road within three miles of each other,- and demand and receive toll as follows : For a vehicle drawn by one animal, three-quarters of a cent per mile ; for a vehicle drawn by two animals, one .and one-half cents per mile for every additional animal. The act under which the plaintiff was incorporated does not seem in any manner to have been altered or affected by the act of 1847. The appellant contends that the act of extending the corporate life of the plaintiff gave to- it simply and only the right to exist as a corporation, and not the right to collect toll. He bases this contention upon the fact that the act of 1863 did not in terms confer upon the plaintiff the right to continue to collect tolls during the extended period. We do not think that it was the intention of the legislature to grant to the plaintiff simply the right, at its own expense, to maintain a plank road for the accommodation of the public, without having the right to reimburse itself by collecting tolls. The right to colléct tolls was unquestionably implied in the extension mentioned. Article 9 of chapter 566 of the Laws of 1890, entitled “An act in relation to transportation corporations excepting railroads, constituting chapter 40 of the General Laws,” provides for the incorporation of turnpike, plank-road and bridge companies. Its provisions are very similar to those of the act of 1847. It provides that five or more persons may become a corporation for the purpose of constructing, maintaining, and owning a phmk-road. Various provisions are contained in the act, to which the incorporators are required to conform before they are entitled to collect toll. Among others, they are required to obtain a certificate of the commissioners of highways of the town of the completion of five consecutive miles of road. U[ibn filing such certificate in the office of the county clerk, the company is authorized to erect toll gates and demand and receive certain rates of toll, which are fixed by the act. At the end of the section fixing the rates of toll is the following:

“ No tolls shall be charged or collected at any gate from any person going to or from public worship, a funeral, school, town meeting or election, at which he is a voter to cast his vote, a military parade which he is required by law to attend, any court which he shall be required to attend, as a juror or a witness, and when going to or from his legally required work upon any public highway, persons living within one mile of the_ gate by the most usually traveled road, when not engaged in' the transportation of other persons or property, and troops in the actual service of this state or of the United States.”

It is the contention of the appellant that this provision of the act of 1890, quoted, applies to the plaintiff, and that his client was entitled to exemption under the clause exempting persons living within one mile of the gate by the most usually traveled road, it being conceded that he was not engaged' in the transportation of other persons or property when passing the gate at the times for which the plaintiff seeks to recover toll. The only exemptions from paying toll provided by the act incorporating the plaintiff were in favor of persons living within one mile of the toll gate, when they were going or returning from a grist mill, church, or religious meeting. The act of 1890, referred to, was amended in 1892, but no change seems to have been made in the article relating to plank roads. It is apparent from an examination of the article in question, that not any of its many provisions which preceded the exemption clause have any application to the plaintiff; neither does the first part of the section containing said clause. Had it been the intention of the statutory revisers that the exemption clause of the act of 1890 should apply to the plaintiff, they would undoubtedly have made it into a separate section, and they would have used language clearly indicating such intention, while the language of the section providing for exemptions is general to the effect that toll shall not be collected of such persons at any gate. We are of the opinion that it applies only to gates, upon roads organized under the general act. The act under which the plaintiff was incorporated is not included in the schedule of laws repealed by the act of 1890. Some general acts have been passed in reference to plank roads, which apply to the plaintiff. An act passed in 1850, providing that no plank-road or turnpike road company should thereafter erect or put up a hoist gate on its road was evidently general in its application, and applied to all the plank roads of the state, including the plaintiff’s; as did also the act of 1855, requiring all plank-road companies to make and file annual reports. It was such laws that were referred to in the clause of the act of 1863, providing that the general laws of tire state should be binding upon the plaintiff. We are of the opinion that the defendant was not entitled to the exemption from paying the tolls in question, and that upon the stipulated facts the plaintiff was entitled to recover the amount mentioned in the stipulation.

If follows that the judgment' of the county court, reversing the justice’s judgment, was correct, and should be affirmed, with costs of this appeal.

All concur.


author: Beekman, J.

text:
    William T. Dickerson, Plaintiff, v. Edward M. Jenkins et al., Defendants.

      (Supreme Court New York Special Term,

      Filed September, 1895.)

    Landlobd and tenant—Sublessee.
    Where the lessee of a room sublets to various persons, who divide the spaces in such a manner as to best suit their convenience, but so that a view of the various spaces can be obtained from a point near the door, a sublessee, by virtue of his lease and occupation of a portion of the property in question,, acquires no right, easement or privilege of having the space kept free from obstruction and open to the extent that existed at the time his lease was made.
    Motion for an injunction.

      Charles F. Bliss, for the motion: ,Johnston & Johnston, opposed.
   Beekman, J.

The plaintiff and the defendants are, respectively, lessees, of the Grand Trunk Railway Company, of certain portions of the first floor of the premises No. 273 Broadway, at the corner of Broadway and Chambers street, in this city. The floor in questioq was longitudinally subdivided by' a brass railing about four feet in height, the division of the spaces being made by the tenants in such a- manner as might best suit their convenience ; but, as a rule, the portion of the floor above the level of from four to four and one-half feet in height is open and unobstructed, so that a view of the various spaces so occupied can be8 obtained from a point near the front door of the - floor. The defendants entered into possession of- the spaces occupied by them at the same time that the Grand Trunk Railway Company, their lessor, took possession of the floor. The defendants’ lease commenced on the 1st day of May, 1894. On the 22d day of October, 1894, the Grand Trunk Railway Company leased to the plaintiff a space adjoining that which was occupied by the defendants to the west. At that time, and for some time afterwards, the height of whatever answered the purposes of a partition between the two spaces did not exceed four and one-half or five feet.' A short time prior to the commencement of this action, however, the defendants, who are ticket agents, placed above the partition separating them from the plaintiff, but entirely 'within thé’ line of their own space, a rack for the holding of time-tables, some four feet in height, which substantially shut in the plaintiff, seriously interfering with his view through the room towards the front door, and also, to a -considerable extent, excluding him and his business from the notice of those entering the building from Broadway. The interference with his light, however, is perhaps hardly appreciable, in view of the fact that the space so occupied by him abuts upon a large plase-glass window, opening on Chambers street, through which the light freely comes, and upon and within which also, it may be said in passing, conspicuous signs are displayed by the plaintiff of his business. Differences having arisen between the parties in reference to the right of the defendants to maintain the time-table rack in question, this action has been bronght for an injunction restraining the latter from continuing to maintain said rack in its present position, and to compel them to remove the same. There is some suggestion in the papers that the act of the ■defendants was prompted by feelings of spite and malevolence towards the plaintiff, and a desire to injure him, rather than to promote their own convenience in the transaction of their business. This is specifically denied by the defendants. But, however this may be, the only question presented to toe for determination is whether the plaintiff has, by virtue of his lease and occupation of a portion of the property in question, acquired a right, easement, or privilege of having the space now occupied by the obstruction free and open to the extent that existed at the time his lease was made.

I find nothing whatsoever in the lease made to the defendants by the Grand Trunk Railway Company which restrains them from using the demised premises in any respect in which it is legitimate for a tenant to appropriate the same. There is nothing, therefore, so far as the lease is concerned, which forbids or prevents the defendants from maintaining the rack in question ; nor, as far as the papers disclose the contents of the lease made to the plaintiff, is there anything in that lease which gives him any greater right or privilege than that which is possessed by the defendants. If the entire space had been originally subdivided by the Grand Trunk Railway Company with transverse partitions, and offered for lease in that way, it might perhaps be claimed that out of these conditions would arise reciprocal easements in favor of each tenant, in respect to the portion of the premises demised to the others, that the spaces above the height of the partitions should be kept open and unobstructed. But there is nothing in the facts before me from which such rights or privileges may be so inferred. We have, then, simply the case of one tenant making a lawful use of the premises demised to him, which, however, subjects another tenant to inconvenience, and, it maybe, to loss. But this is not sufficient upon which to found a cause of action. It falls within the large class of cases where consequential damages follow the legitimate exercise by others of their legal rights. For this, in the nature of tilings, there is no remedy. The defendants have not been guilty of any trespass in doing what they did and acted apparently within their legal rights; and, although the plaintiff maybe subjected to great inconvenience on that account, I fail to see that he has any remedy.

The plaintiff refers to the case of Hallock v. Scheyer, 33 Hun, 111, in support or his motion. The facts in that case are utterly different from those before me. There the defendant, who kept a store on Grand street, in the city of New York, adjoining that of the plaintiff, placed a show case, sign, and fence, extending from the store out on the sidewalk, in such a manner and to such a height as to obstruct the light and obscure the view of the plaintiff's show windows, thereby tending to exclude his. customers from it and to injure his business. The court held that these acts on the part of the defendant constituted a nuisance, and very properly so, because it was an unauthorized use of the public street, from which the plaintiff suffered special damage, and for that reason was entitled to maintain an action enjoining the continuance of the nuisauce. The case therefore, is utterly inapplicable to that under consideration.

For the reasons which I have given, I am satisfied that the plaintiff is not entitled to the injunction asked for, and the motion must therefore be denied, with $10 costs.

Motion denied, with $10 costs.


text:
    Schwartz, Pl’ff, v. Scott, Def’t.

      (Supreme Court, New York Special Term,

      Filed August, 1895.)

    1. Costs—Security for.
    The court or judge has the power, under section 3372 of the Code, to make, without notice, an order requiring plaintiff to give security for costs.
    2. Same—Laches.
    The defendant forfeits his right to security for costs by delaying his application therefor until after he has answered the complaint.
    3. Same—Designation.
    The court may, even after answer, require security for costs in a ease-where the delay in moving is excusable.
    Motion to vacate an order requiring plaintiff to give security for costs.

      Dunn & Delacy, for pl’ff; Davies, Stone & Auerbach, for def’t.
   Beekman, J.

An order having been made requiring plaintiff to give security for costs, I am now "asked to vacate the same on the grounds: First, that the order was irregularly granted, in that it was made ex parte; and, second, that the defendant was-guilty of loches in not applying for the order until after he had served his answer. So far as the first ground of objection is concerned, it is clearly untenable. The court or judge has the power, under section 3272 of the Code of Civil Procedure, to make such an order without notice. This was clearly held in the case of Churchman v. Merritt, 50 Hun, 270; 19 St. Rep. 171. In that case, while Mr. Justice Daniels expressed the opinion that it was a “ more judicious mode of proceeding ” to apply for the order on notice, he also states that an absolute order in the first instance is not unauthorized.

As to the other ground upon which the motion is made, I am of the opinion that the defendant forfeited his right to security for cost&by delaying his application until after he had answered the complaint. He knew upon the service of the summons and complaint, that he was entitled to an order requiring security for costs to be given. The law requires that under such circumstances the application must be diligently made, and it has been held that such diligence has not been shown where it appears that the application is not made until after the answer has been served. The question seems to have come squarely before the general term of this department in the case of Stevenson v. Railroad Co., 49 Hun, 169; 16 St. Rep. 787, in which the orders of the court below is affirmed, which vacated an order made to file security for costs on the ground of the loches of the defendant, where such loches seem to have been mainly in failing to move before service of the answer. I am not to be understood as taking the position that the court cannot require security for costs, even after answer, in a case where the delay in moving was excusable. No facts, however, are presented upon this motion disclosing any reason whatsoever why the motion was not more promptly made. Hnder such circumstances, I think that the case fairly comes within the decision above stated. The defendant’s counsel refers to the case of Robertson v. Barnum, 29 Hun, 657, where the general term of this court in the second department sustained an order requiring security for costs, although the defendant had not applied for such order until after serving his answer. Without undertaking to hold that the two cases may not be reconciled, it is sufficient to say that the case of Stevenson v. Railroad Co., is a later determination of the court, and one also which was made in this department; and, if there is any inconsistency between the two cases, it should certainly be followed by me.

Motion granted, with $10 costs.


author: Rumsey, J.

text:
    The People ex rel. Thomas W. Bowles, Pl’ff, v. Allen M. Burrell et al., as Town Auditors, etc., Deft’s.

      (Supreme Court, Monroe Special Term,

      Filed October 15, 1895.)

    1. Towns—Commissioners of highways.
    The commissioner of highways of the town has no power to pledge the credit of the town for the repair of the highways and bridges.
    2. Same—Custom.
    A town is not rendered liable for the purchase of materials to repair highways by the highway commissioner, though it has been the custom in such-town to purchase materials on its credit.
    Application for a writ of mandamus against the town auditors of the town of. Canisteo.

      A. H. Burrell, for relator; M. M. Acker and F. H. Robinson, for def’ts.
   Rumsey, J.

It appears from the affidavits presented upon this application that during the year 1894 the relator sold and delivered to the highway commissioner of the town of Canisteo a large quantity of plank, timber and piles, to be used, and which were used, in the repair of the roads and bridges of said town.-'- His account was presented to the board of audit at the proper time in the fall of the year 1894. It was objected to, and after some hesitation the town board refused to audit. He makes this motion to procure a writ of mandamus to require them to audit this account. It appears, and is not disputed, that, at the time of the highway commissioner ordering this material from the relator, he had in his hands a small sum of money, which might- have been devoted to that purpose, which he did not see fit to do." This, however, is not a matter of any importance, because, if the highway commissioner had the power to pledge the credit of the town for these materials, to be used in the repair of the roads and bridges, it makes no difference, so far as the rights of the relator are concerned, whether he had the money in his hands-to pay the amount, or not. The sole question presented upon this motion is whether or not he had the right to buy these materials upon " credit. In the case of People v. Board of Supervisors, 93 N. Y. 397, it appeared that a judgment had been recovered against the commissioner of highways of the town of Kingston, arising out of a contract with the commissioner for the repair of the highways of the town.. It was claimed by the relator,, who was the judgment creditor, that the judgment against the commissioner was a claim against the town, and that it was the duty of the board of supervisors to spread the amount of it upon the tax roll of the town, that it might be collected. This the board of supervisors refused to do, and thereupon the relator sought to compel them to do it by mandamus. It was objected that the judgment against the commissioner was not a judgment against the town, for the reason that the commissioner of highways had no power to contract a debt upon the credit of the town to enable him to perform the duties of his office. So it will be perceived that the question presented there is almost precisely the question presented here; that is, whether or not the commissioner of highways of a town has the right to pledge the credit of a town for the repair of the highways and bridges. It was decided in the case cited that no such power existed, and that the town was not liable for a debt contracted by the commissioner for any such purpose. It is not necessary to examiné into the authorities upon that question, because the case cited is full and complete authority, and necessarily decisive of it. If is quite true that this case was decided before the highway law, which took effect in_1892, but a careful examination of that law satisfies me that it created no change.in the powers of the highway commissioner, and that the town is no more liable for his acts in the purchase of material for the repair of the roads since the passage of that law than it was before.

But it is claimed on the part of the relator that by a- long course of dealing the custom has been established in the town of Canisteo of buying materials upon credit for the repair of the highway, and that, the relator having sold the lumber in reliance upon that custom, he ought not to be precluded from having his pay. Undoubtedly, where one man is dealing with another, and by a long, continued course of dealing a custom has been established between them with regard to theii business, upon which one of them relies, he has a right to depend upon that as the basis of the contract with the other man, and to appeal to it to enable him to recover, when his right is disputed. But that rule of law only applies in a case where the parties have the power to make the contract upon which the recovery is based. That is not the case here. The commissioner of highways is not the agent of the town. He is required only to perform such duties as the law imposes upon him, and those duties are public in their nature, and are imposed upon him, and not upon the town. He may bind the town, to be sure, by his negligence in performing those duties; but that is not because he is the agent of the town, but because the law says that the town shall be responsible for his failure to perform the act which the law makes it his duty to do. So far as the town is concerned, his powers are laid down in the statute, and the statute nowhere gives him the power to bind the town by contracting a debt. Towns, in this state, are municipal bodies created by the statute. They themselves have no original powers or rights, nor any rights except such as the statute gives them. In these respects they differ widely from the towns of Massachusetts and some of the New England states, which are original corporate bodies, existing by the agreement of the inhabitants, and in some cases before the state or colony itself came into being. In these states it has been held that under certain circumstances the town is bound by a well-established custom, but that rule of law does not apply in this state. The town itself can contract no liability, in this state, except such as the law permits. Lorillard v. Town of Monroe, 11 N. Y. 392 ; Wells v. Town of Salina, 119 id. 280; 29 St. Rep. 732; Morson v. Town of Gravesend, 89 Hun, 52; 69 St. Rep. 450. Much less can officers of the town, like commissioners of highways, overseers of the poor and assessors, who are not in any respect agents of the town, but public officers charged with public duties by the legislature of the state, contract a debt against the town which it could not contract itself.

For these reasons the motion for a mandamus must" be denied, with $10 costs.


author: O’Brien, J.

text:
    James P. Keating, as Clerk, etc., Pl’ff, v. Ashbel P. Fitch, as Comptroller, Def’t.

      (Supreme Court, New York Special Term,

      Filed October 1, 1895.)

    1. Injunction—Preliminary—Official salary.
    In an action to determine the validity of a statute removing plaintiff from an office, the payment of an officer appointed under the statute in plaintiff’s place will not be enioined pendente lite, where an appropriation may be comnelled for plaintiff’s salary, if it should be determined that he was entitled tnereto.

      2. Same.
    When the legislature creates additional officers, payment to them will not prevent a recovery by other de jure officers, even though the latter have been prevented and, therefore, have not actually discharged the duties of the office.
    3. Judicial officers—Term—Power to. terminate.
    Chapter 601 of 1895, by which the court of special sessions of New York city was abolished, is constitutional.
    4. Injunction—Preliminary.
    The court should not grant a preliminary injunction where the plaintiff’s right is doubtful and his legal remedy adequate, and where the result will inevitably be to introduce confusion and impair the effciency of the administration of criminal law in a large community.
    Motion for an injunction pendente lite to enjoin the comptroller from paying, out of the unexpended balance of the appropriations for the year 1895, for the court of special sessions and the police courts to the new judges.

      Oharles Haldane, for pl’fif; Francis M. Scott, Corp. Counsel (Theodore Gonnoly, of counsel, and Lewis L. Delajield, of special counsel), for deft.
   O’Brien, J.

The plaintiff brings this action on his own behalf and for others legislated out of office, and moves for an injunction pendente lite to enjoin and restrain the defendant from paying out of the unexpended balance of the appropriations for the year 1895 for the court of special sessions and for the police courts any sum to the new judges of the court of special sessions and city magistrates created under chapter 601 of the Laws of 1895. It is undisputed that plantiff was appointed clerk of the special sessions by the former police justices for a period extending beyond the year 1895, and the appropriation for 1895 was made in contemplation of the payment of plaintiff’s salary from the moneys so appropriated. Unless it -is made to appear that plaintiff, by the payment to the new officers of their salaries out of such appropriation, will be injured, this court should not enjoin the payment by the city to the persons who are now discharging theinduties under the authority of an act of the legislature. This act of 1895, legislating one set of officers out of and the other into office, is said to be unconstitutional and void. It is not claimed that there is a constitutional restriction on the right of the legislature to create new judges or magistrates for courts of inferior criminal jurisdiction. Having done so, the obligation would be on the city to pay them; and should the appropriation, before the end of the year, become exhausted, the city would be bound to provide "the necessary funds, as in the present instance, as provided by the act itself, which directs (section 24) that any additional amount needed shall “ be added to and included in the final estimate for the year 1895.” How, then, is the plaintiff to be injured if the comptroller should pay out of the amount already appropriated the salaries of the new city magistrates ? If the former justices and their clerks are still in office, they can recover their salaries. It would be no defense in a suit against the city for the latter to allege that the fund was exhausted by payments to the new magistrates. It is true there are cases authority seemingly for the proposition that a payment by the city to a de facto officer who has performed the duties of the office is a good defense to an action brought by the officer de jure who did not perform such duties. There is no case, however, which has gone to the extent of holding that, when the legislature creates additional officers, payment to them will prevent a recovery by other de jure officers, even though the latter have been prevented and therefore have not actually discharged the duties of the office. The reason is that, all being de jure officers, the city is bound to pay all the compensation prescribed by law. What h-as been said as to the right of the legislature to create new judges •applies with equal force to the clerks. The latter are in no way protected by the constitution, and it was clearly within the power of the legislature to remove them. Without disputing these conclusions, it is insisted that the magistrates and clerks sought to be ■created are not de jure officers; that, while the legislature may create additional judges, itcannot abolish the former police justices; and, as .the provisions seeking to do both are interdependent and part of one and the same act, that the unconstitutional features destroy the constitutional. Mr. Justice Stover, in People v. Hogan, 14 Misc. Rep. 48; 69 St. Rep. 601, has passed upon the very questions thus sought to be raised, and they are no longer open ■ones. Unless it was made clearly to appear that he was in error, his decision should, in the first instance, be followed by every •other judge, and stand as the law until reversed. The arguments in favor of and against the constitutionality of the act have been many times stated, and it would serve no useful purpose to again repeat them merely for the purpose of showing that a grave question is presented upon which lawyers and judges might properly differ. It is sufficient for the purpose of this motion to say that the arguments against the constitutionality of the act are not so overwhelming as to justify my refusal to follow the decision of Mr. Justice •Stover. Besides, the court should not grant a preliminary injunction where the plaintiff’s right is doubtful.and his legal remedy adequate, and where the result would inevitably be to introduce ■confusion and impair the efficiency of the administration of criminal law in a large community. Motion is denied accordingly, with $10' costs.

Motion denied, with $10 costs.