author: Martin, J. Hardin, P. J. Merwin, J.

text:
    Jackson Montgomery, Sole Overseer of the Poor of the Town of Spencer ex rel. Seymour Seeley et al., App’lts, v. Marcellus E. O’Dell, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    1. Elections — Towns—Canvass of ballots.
    Under chap. 262, Laws of 1890, which requires that all the candidates for town offices, including excise commissioners, should be on one ballot, and all the ballots should be deposited in one box, the ballots that were deposited in any box except that in which the ballots for town officers were deposited should not be counted.
    2. Same.
    Chap. 262, Laws 1890, was in no wise intended to prevent the voter to vote for any candidate whom he chose, though such candidate was not nominated by any political party.
    3. Same.
    Under such law. wheVe no certificate of the nomination of candidates for the offices to be voted for was filed with the clerk, ballots printed and furnished by him containing all the names of the candidates, except one, and used and treated as official ballots by the electors, should be regarded and treated as valid, and a vote for the candidate whose name was omitted, pasted on such ballot, considered valid.
    4. Same.
    When the inspectors of election fail to certify the election of any person to fill an office, and one candidate received the only valid vote cast, it is. sufficient to give him an apparent authority or color of title to the office.
    5. Excise — Licenses.
    Laws 1870, chap. 175, § 3, as amended by Laws 1890, chap. 161, so far as it relates to the time when licenses are to be issued, should be construed as directory.
    6. Same.
    Even if such law as to the time when licenses should be granted was mandatory, still it will be presumed that the excise commissioners adjourned from the time fixed until the day when they in fact granted licenses.
    Appeal from a judgment, entered in Tioga county, July 9, 1892, on the decision of the trial court, a jury trial having been duly waived.
    Briefly stated the findings of the trial court were : That the plaintiff was’ overseer of the poor ; that the relators were authorized to prosecute this action in his name ; that John Q. Shepard was a member of the board of commissioners of excise prior to February 10, 1891, and that his term of office expired on that day; that Robert Fisher was a member of the board and his term of office expired February 9, 1892; that Seymour Seeley was a member of the board, and his term of office will expire February 7, 1893; that Horace A. Hugg was a candidate for the office of excise commissioner to fill the vacancy caused by the expiration of. the term of office of John Q. Shepard; that John Q. Shepard was also a candidate for re-election to fill the same vacancy ; that there was but one commissioner of excise to be elected; that a large number of ballots for commissioner of excise was cast, on which were printed the names of three candidates; that upon one ballot two names were struck off, leaving John Q. Shepard the only candidate voted for by the elector who east the same; that by that ballot Shepard was elected excise commissioner of the town to succeed himself; that before the 12th of May, 1891, Shepard took the required oath of office, qualified and entered upon its duties ; that the board of excise commissioners was duly organized May 4, 1891, by the election of Robert Fisher as chairman and Seymour Seeley as secretary ; that Horace A. Hugg was present, and assumed to participate in the proceedings of the board as a member, and at the same time John Q. Shepard was present, and participated in the proceedings of the board as a member thereof; that on May 12th, the board of excise consisted of Fisher, Seeley and Shepard; and on that day, at a meeting duly held, the board granted the defendant a license authorizing him for one year from that time to sell strong and spirituous liquors, in quantities less than five gallons at a time, which license was in the usual form and signed by Robert Fisher and John Q. Shepard, who voted for the same; that the only ballots cast for Horace A. Hugg were those upon which the names of three candidates were printed for excise commissioner, of which his was one; that within the time specified in such license, the defendant sold strong and spirituous liquors to at least ten different persons.
    As conclusions of law, the court held that the defendant was entitled to a judgment in his favor, dismissing the complaint upon the merits with costs, and directed judgment accordingly.

      W. Martin Jones, for app’lts; E. E. Dean and S. D. Halliday, for resp’t.
   Martin, J.

This action was brought in the name of the overseer of the poor of the town of Spencer, to recover of the defendant a number of penalties for the sale of intoxicating liquors without having a license therefor. That it was properly brought in the name of the overseer is not questioned.

Heither is it denied that defendant sold intoxicating liquors at the times proved and found by the court. It was conceded that at least ten sales were made. The defendant justified under a license which he claimed was granted to him by a majority of the commissioners of excise of the town of Spencer, where he lived and where the sales were made.

The main controversy arises over the question whether John Q. Shepard, one of the persons who signed defendant’s license, was then a commissioner of excise of that town. That he had been prior to the 10th day of February, 1891, is not disputed. But his term of office, under his previous election, expired on that day, uidess he held over because no person was elected to fill his place. The annual town meeting was held February 10, 1891. There was but one vacancy in the office of commissioner of excise, yet three persons were placed on the tickets of each party, and were voted for by all of the electors who voted at that election except one. Ho certificate of nomination was made, or certified to, as required by statute. Hone of the electors were entitled to vote for more than one commissioner. The names of the persons who were candidates for the office of commissioner were placed upon separate tickets, and the ballots were deposited, in a ballot box separate from that in which the ballots for other town officers were deposited, except those which will be hereafter considered.

The manner of preparing the ballots and conducting this election was in direct conflict -with many of the requirements of the ballot law. (Laws 1890, chap. 262.) In People v. Person (19 N. Y. Supp., 297; 45 St. Rep., 528; aff’d 32 N. E. Rep., 645; 48 St. Rep., 929), under chapter 296 of the Laws of 1891, which provides that ballots for commissioners of excise shall be separate from ballots for other town offices and deposited in separate boxes, it was held that ballots for town officers found on ballots indorsed excise and in the excise or town ballot box should not be counted. As the statute of 1890, which was in operation when this town meeting was held, required that all the names of candidates for town offices, including commissioners of. excise, should be upon one ballot, and that all the ballots cast should be deposited in one box, it would seem that the ballots other than those containing the names of the town officers, or that were deposited in any box except that in which the ballots for town officers were deposited, should not have been counted. If, as held in the Person case, ballots that contained the names of town officers other than commissioners affixed to an excise ballot and deposited in the excise or town box should not be counted, because the statute as it then stood required them to be upon separate tickets and to be deposited in separate boxes, we can perceive no good reason why the converse of that proposition is not equally true, nor why, where the ballots are required by the statute to contain the names of the candidates for all the town officers to be elected, and to be deposited in one box, the ballots deposited in another, containing .qnly the names of commissioners of excise, should not also be rejected. We think the principle of that case controls this question, and that all the ballots deposited in the box, other than that which was authorized, should have been rejected.

The three persons whose names were placed on what was known as the no license ticket each received 295 votes, while those placed upon the license ballot each received only 195 votes. When the ballots were canvassed the inspectors made a statement showing the total number of votes cast for commissioners of excise, the number received by each of the six candidates whose names were on the ballots voted, and then added: “ On motion, it is voted that all the candidates having the greatest number of votes set opposite their respective names was declared duly elected to the several offices herein named.”

No other certificate was made by the inspectors. Therefore, as all the candidates for commissioners on the ticket receiving the most votes received an equal number, they were all declared elected, and no one of the three was elected or declared by the inspectors to have been elected to fill the vacancy which occurred by the expiration of Shepard’s term. While if one of two candidates for an office is ineligible, the one who is eligible receiving a minority of the votes is not thereby elected, unless his opponent’s disqualification was known to the electors (People ex rel. v. Clute, 50 N. Y., 451; People ex rel. v. Bd. Canvassers, 129 id., 374; 41 St. Rep., 912), still, it is obvious that when the number of persons to be elected to an office is limited, as one incumbent to each office, a ballot containing more names than the number limited must be inoperative as to the office named. The very purpose of voting is, that the vote may exercise his choice, and when he names more than the limited number it is impossible to determine which of the number he prefers. Thus, where at an annual town meeting the electors limited the number of constables to be chosen to four, it was held that ballot-s containing more than four persons, designated as voted for that office, could not be canvassed, but must be rejected (People v. Loomis, 8 Wend., 396), and if a ballot for one office has two names upon it, it cannot be sustained by proof that the voter intended to cast his vote for one of the persons named. (People v. Seaman, 5 Den., 409.) It has also been held that where but one person can be elected to an office, and three persons are named on the same ballot for such office, the ballot is void. (People v. Ames, 19 How. Pr., 551.) Indeed, it does not seem to be seriously claimed by the appellants that any of the persons named on those ballots was in fact elected.

The appellants’ claim is that the certificate of the inspectors gave Horace A. Hugg, one of the persons whose name appeared on the no license ballots, apparent authority or color of title to act as such commissioner, and, hence, he became a commissioner de facto upon qualifying and acting as such, and that he being a commissioner de facto to fill the vacancy caused by the expiration of Shepard’s term, he was the only commissioner who could fill that vacancy, and Shepard was neither commissioner de jure nor de facto.

It is somewhat difficult to see how this contention can be upheld, especially in view of the fact that Hugg’s title to the office was not recognized or continued for such a time as to justify third persons in believing that he was such officer. There was no certificate by the inspectors indicating that Hugg was elected any more than the two other persons on the same ballot. The certificate was to the effect that all were elected. ’JSTo one was certified to have been elected to fill the vacancy caused by the expiration of Shepard’s term. If Hugg had apparent authority or color of title, so did the other two, so far as the election or the certificate of the inspectors was concerned.

The court has found, upon evidence sufficient to justify it, that at the first meeting of the commissioners both Shepard and Hugg were present and participated in the proceedings of the board, and that Shepard participated in all their subsequent proceedings down to the time when the license to the defendant was granted.

It is true that when there is but one office there can be neither a de jure and de facto officer in possession of the same office at the same time, nor two different officers de facto in possession of an office for which one incumbent only is provided by law. Mechem on Public Officers, §§ 322 and 323, and cases cited. It is also true that “ third persons who have occasion to deal with a public officer and to rely upon his acts, finding a person in the apparent possession of the office and ostensibly exercising its functions lawfully and with the acquiescence of the public, can neither be expected to know, nor to investigate, in every instance, his title to the office or his eligibility to election to it. As to them, he must be held to be what he appears to be, the lawful occupant of the office. This rule is demanded by public policy as the only one affording protection to the public. * * * This rule does not apply where the defects in the title of the assumed officer are notorious, and the persons dealing with them have notice of the facts." Mechem on Public Officers, § 328, and cases cited.

But in the present case we do not find any evidence to show that Hugg was in the apparent possession of the office, or ostensibly exercising its functions lawfully, or with the acquiescence of the public. As both Hugg and Shepard were present at the meetings of the board, and each claiming the office, the defect in Hugg's title was notorious, and persons dealing with him must have had notice of the facts.

We are of the opinion that Hugg was neither commissioner de facto nor de jure, and that the appellants’ claim that he was commissioner de facto so that Shepard could not be treated as a commissioner de jure or de facto., cannot be sustained.

This brings us to the consideration of the question as to what power or authority Shepard had to exercise the rights and perform the duties of such office. The court found that one ballot was cast for Shepard which was pasted on the regular town meeting ballot, and contained only the name of Shepard for excise commissioner, the names of the other persons for excise commissioner having been struck off. This finding was, we think, justified by the evidence. The court also found that, as this was the only ballot that was regular, Shepard was elected. That a town meeting was lawfully held at that time, and that a commissioner of excise was to be elected at such town meeting, there is no doubt. Therefore, this case does not fall within the principle of the case of the People ex rel. v. Bull, (46 N.Y., 67), as in that case it was held that it was not lawful to hold an election at the time to elect a candidate for the office claimed by the relator.

It seems to be settled that such a ballot would be valid when affixed to the regular official ballot, whether the candidate was regularly nominated or not, and although the statute forbids the cleric to put any name on the official ballot except those nominated and certified as having been made by a political convention or by the certificate mentioned in § 5 of that act (Laws 1890, chap. 262, § 17.) in People ex rel. v. Shaw (31 N. E. R., 512; 45 St. Rep., 866), it was said: “ The first objection that the relators, having failed to receive a proper nomination by a political party which at the last election before the holding of the convention or primary meeting polled at least one per centum of the entire vote cast in that political division of the state for which the nomination is made, could not be voted for, is wholly unsound, and without force. The plan contained in §§ 1, 2 and 3 of the ballot reform act (Laws 1890, chap. 262), was a provision for the printing of an official ballot at the public expense; a feature well designed to secure the desired secrecy and independence of the ballot. But that it was in no wise intended to prevent the voter to vote for any candidate whom he chose is evident from the further provisions of law (§ 25), that ‘ the voter may write or paste upon his ballot the name of any person foi whom he desires to vote for any office.’ Indeed, to hold otherwise would be to disfranchise, or to disqualify, the citizen as a voter or a candidate, and, in my opinion, to affect the law quite unnecessarily with the taint of unconstitutionality in such respects.”

The only other paster ballots found by the inspectors contained the names of three persons for one office and were clearly irregular. Hence, it would seem that if any commissioner of excise was elected at that town meeting, it was Shepard, and that he was elected, unless it can be held that there was no official ballot upon which a paster might be placed. In Commonwealth v. Read, (2 Ashm., 261,) where, to authorize the county board to proceed to the election of a treasurer, it was necessary that at least eleven members of the twenty comprising it should be present, it was held that if a majority of those present either refused to vote, or voted in a manner different from that prescribed by law, a minority, composed of a single member, was sufficient to make an election.

As we have already seen, there was no certificate of the nomination of candidates for the various officers to be voted for filed with the clerk, as required by the statute. There was, however, a printed ballot containing all the names of the candidates to be elected at such town meeting, except a commissioner of excise. As the ballots thus printed and furnished by him were used and treated as an official ballot by the electors of the town, we are disposed to think that it should be regarded and treated as valid, although an unofficial ballot, such as is provided for by § 21, and that it should be held that the vote for Shepard, which was pasted upon such a ballot, was valid, and that he was, in fact, elected as such commissioner of excise. If it be said that this • conclusion defeats the will of a majority of the electors of the town, the answer is two-fold: 1. That only one of the electors has by his vote expressed his choice. The fact that the other electors have, by their votes, indicated that they did not desire the election of the person thus voted for without voting for any other one person to take his place, was of no avail. 2. The statute, in plain and positive terms, provided how the choice of an officer by the electors should be made, and as the statute was not even substantially complied with, the ballots thus cast were void, although the result may have defeated the intent of a majority of the electors. People ex rel. Nichols v. Bd. Canvassers, 129 N. Y., 395; 41 St. Rep., 713.

It was by virtue of this election that Shepard claimed to act as commissioner of excise for the town. While it may be that he would not become such commissioner de jure without a certificate from the inspectors showing his election to such office, still, as the inspectors failed to certify the election of any person to fill the office, it was, we think, sufficient to give him an apparent authority or color of title to such office.

Moreover, Shepard was the properly elected commissioner, and holding his office as such, when the town meeting in question was held. If,-therefore, neither Hugg nor .Shepard was elected, the question is presented whether the office became vacant or whether Shepard held over until his successor was elected and had qualified. As the law now stands, there would be no question. Chapter 569, Laws 1890, § 12, provides: ‘‘ All such officers (being the various town officers, including commissioners of excise), except justice of the peace, shall hold their respective offices until others are elected or appointed in their places and have qualified." This statute did not, however, go into effect until March 1, 1891. See § 243. But before the adoption of this statute, the Revised Statutes provided: “ Town officers shall hold their offices for one year, and until others are chosen or appointed in their places, and have qualified." 2 R. S., (8th ed.), 892, § 30.

It seems to have long been the policy of the law in this state that all town officers, except, perhaps, those that were strictly judicial, should hold their respective offices until successors should be chosen and qualified. That commissioners of excise, elected in pursuance of the provisions of chap. 444 of the Laws of 1874, are town officers, we have no doubt. The first section of that statute recognizes them as such. It provides that they shall be elected as other town officers are elected, thus showing that they were to become town officers when elected. Being town officers, the question is whether the provisions of the Revised Statutes apply to them. It will be observed that this statute provides two things: 1. That town officers shall hold their offices for one year; and, 2. That they shall hold their offices until others have been chosen and qualified. The term of office of commissioners of excise having been established at three years, it modified the statute so far as the term of office of commissioners was concerned, but, we think, did not affect the remainder of that statute, which provided that town officers should hold their offices until others were chosen or appointed and qualified.

We are, therefore, of the opinion that if Shepard was not elected, still, by virtue of the provisions of the Revised Statutes cited, he was entitled to hold the office until his successor was chosen or appointed, and qualified, and that the trial justice was justified in holding that he was a commissioner of excise.

It is, however, contended by the appellants that in a collateral proceeding the court has no jurisdiction to change the declaration of the board of town canvassers and declare a candidate elected when the board has declared him defeated. We do not see how this contention has any application to this case. For, as we have already seen, the town canvassers failed to declare any candidate elected to fill the vacancy caused by the expiration of Shepard’s term. It was said by Danforth, J., in Cronin v. Stoddard (97 N. Y., 271), that “ one who desires to enjoy the privileges afforded by the act under which the proceedings in question were had (Laws 1857, chap. 628) must see to it that they are granted by one duly authorized, or submit to the penalty prescribed.” Thus it would seem that the burden is cast upon the person holding the license of establishing the fact that persons who sign a license to sell intoxicating liquors under the provisions of that statute are commissioners of excise, and authorized to grant the same. Assuming that this-burden was cast upon the defendant, we think it cannot be properly claimed that "he should be debarred from showing that the persons signing his license were in fact authorized to grant it, especially where, as in this case, there was no certificate or statement by the town canvassers which declared any person elected to fill the office. We think the defendant was properly permitted to show that Shepard was one of the commissioners of excise of the town of Spencer, and having shown that fact, that the license held by the defendant was a justification, and that the court properly disposed of the case on the trial, unless for some other reason the license granted was void. '

The only other ground upon which the defendant’s license is claimed to be invalid is, that it was granted on the 12th day of May, after the commissioners had already met on the fourth and sixth days of that month. The statute regulating the sale of intoxicating liquors provides: ‘‘ The commissioners of excise shall. meet * * * on the first Monday in May, in each year, for the purpose of granting licenses, as provided by law, and at no' other time for that purpose, except upon application for licenses made in good faith in any town or village, and in such case not of tener than once in each month.” Laws 1870, chap. 175, § 3, amended by Laws 1890, chap. 161.

An examination of the statutes relating to this subject as they have existed since 1857, discloses that the legislature, by each or the statutes passed during that time, has sought to limit the time during which the commissioners should sit for the purpose of granting licenses. By the statutes of 1857 and 1870 they were permitted to sit only ten days in each year. By the statute of 1890 the law was changed so that there was no positive limitation as to the number of days they should be employed in granting licenses, but instead it provided that they should meet for that purpose on a day named, and at no other time, except upon application for licenses, and then not oftener than once in each month. The purpose of this provision was, we think,'to limit the time which commissioners should devote to the granting of licenses and thus lessen the expenses of the towns, and not to entrap applicants for license whose license should be issued on some day other than that mentioned in the statute into a course of action by which they would incur penalties to a ruinous extent. We think this statute, so far as it relates to the time wriien licenses are to be issued, should be construed as directory. It is a general rule applicable to the construction of statutes, that provisions regulating the duties of public officers, and specifying the time for their performance, are, in that regard, generally directory, unless the nature of the act to be performed or the phraseology of the statute is such that the designation of time must be considered as a limitation of the power of the officers. People v. Allen, 6 Wend., 486; Gale v. Mead, 2 Den., 160; People ex rel. v. Village of Yonkers, 39 Barb., 266; Dawson v. People, 25 N. Y., 399; Witheril v.Mosher, 9 Hun, 412; Rawson v. Van Riper, 1 T. & C., 370; Matter of Broadway Widening, 63 Barb., 572; Metcalf v. Mayor, etc., of New York, 17 St. Rep., 97.

In this case the nature of the act to be performed by the commissioners was not of a character indicating that time should be considered as a limitation of their power. Nor do we think that the language of the statute was intended to limit the power of the commissioners to the times mentioned. While this question may not be wholly free from doubt, yet we cannot think it was the purpose of this statute to render the acts of the commissioners void for want of power if performed at any other than the time mentioned in the statute, but that its purpose was to limit the time they should devote to the granting of such licenses, so far as consistent with the duties to be performed by such officers.

Such a construction, we think, accomplishes the purpose of the statute, and avoids a construction which would render it a delusion and a snare to the unwary recepient of a license. That this statute should not be construed so as to produce such a result, un- . less its plain language requires it, is quite manifest. The law makers cannot always foresee all the possible applications of the general language they use; and it frequently becomes the duty of the courts in construing statutes to limit their operation so that they shall not produce absurd, unjust or inconvenient results not contemplated or intended. A case may be within the letter of the law, and yet not within the intent of the law-makers; and in such a case, a limitation or exception must be implied. L. S. & M. S. Ry. v. Roach, 80 N. Y., 339. We think the language of this statute, when properly construed, does not require us to hold that the defendant’s license was invalid because granted subsequent to the first meeting of the board and within a month from that time.

If, however, this construction of the statute cannot be sustained, still, there is another ground upon which the validity of the defendant’s license should be upheld. That the commissioners of excise, having properly met at the time provided by the statute, could continue in session or adjourn from time to time until the business before them was fully completed, we have no doubt. Therefore, if necessary to uphold this license, we think it should be presumed that the board of commissioners of excise adjourned from time to time until the day on which the defendant’s license was granted. The law constantly presumes that public officers ■charged with the performance of official duty have not neglected the same, but have performed it at the proper time and in the proper manner. Mechera on Public Officers, § 579. In this case we fail to find sufficient proof to overcome this presumption. The evidence tends to show that the meeting’ of the board on the 4th of May was adjourned, and that the meeting held on the 6th was adjourned until the 12th day of May.

By these considerations we are led to the conclusion that the defendant was justified by his license in making the sales complained of, and that the decision of the trial court should be sustained.

Judgment affirmed, with costs.

Hardin, P. J.

I think the license was a protection, and the opinion is right, and that the judgment should be affirmed.

Merwin, J.

I am inclined to the opinion that Shepard held over; so I concur in the result.


source: Caselaw Access Project

author: Patterson, J. Van Brunt, P. J.

license: Public Domain

text:
    The United States Vinegar Co., Pl’ff, v. John Schlegel, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Corporations — Stock subscription — Defense.
    One sued on a subscription to the stock of a corporation cannot rely upon a mere prospectus, or the representations of promoters, to defeat his liability on the ground that the objects of the corporation are illegal, unless such prospectus or representations have, after the incorporation, been adopted, and business conducted in accordance therewith.
    2. Same — Ultra vires.
    If, according to its charter, a foreign corporation was organized for a legitimate business, and afterwards unlawful contracts are made, or its chartered powers exceeded, while such facs would authorize the intervention by the authorities of the state of organization to revoke the charter, or suit by a shareholder to enjoin acts ultra mres, they constitute no defense to a suit in this state to enforce a shareholder’s liability on his subscription for stock.
    Exceptions ordered to be heard in the first instance at general term.

      Ten Eyck & Remington, for pl’ff; Benno Loewy, for def’t.
   Patterson, J.

This action is brought to enforce against a subscriber to shares of the capital stock of the plaintiff, an unpaid balance of his subscription. The complaint sets forth that the plaintiff is a corporation duly incorporated under the laws of the state of Illinois, to buy, sell, deal in and handle vinegar, and that in contemplation of its incorporation the defendant and others subscribed to its capital stock and agreed to pay the amounts of their several subscriptions, and that the defendant at the time of his subscription paid a certain sum on account thereof. It is further alleged in the complaint that since the incorporation of the plaintiff, it has incurred debts to various persons and has no assets except such as consist of unpaid subscriptions to its capital stock. The answer of the defendant puts in issue the due incorporation of the plaintiff. That may at once be disposed of by saying that such incorporation was sufficiently proven by the documentary evidence appearing in the record before us.

The answer contains affirmative defenses which.may be summed up as follows, viz.: that the plaintiff corporation was formed solely for the purpose of controlling and limiting the production of vinegar throughout the United States, and that it was intended to be a combination of all vinegar manufacturers and dealers to control and enhance the price of vinegar in the United States, and that the promoters of the plaintiff and its officers represented to all subscribers, including the defendant, that such was the purpose of the projected and completed corporation; that the defendant’s subscription was based on such representations; that the plaintiff attempted to carry out that purpose after its incorporation, and did to some extent carry it out by compelling all its shareholders or members to sign agreements fixing the prices at which they should sell vinegar, and also limiting the amount of the product of each manufacturer who should become a shareholder in the corporation, and that from time to time prices were raised in such a way as to prevent competition by those who were not stockholders or members of the plaintiff corporation,, by forbidding its shareholders to sell to those who were not connected with the plaintiff; that if the plaintiff was incorporated for legitimate business purposes, it was without the authority, consent or knowledge of the defendant,and with the intent to impose upon and deceive the authorities of the state of Illinois, and for the purpose of evading the statutes of that state; that all the moneys expended and contracts made were in furtherance of unlawful schemes and conspiracies, and that the defendant was induced to subscribe to shares of the plaintiff’s stock by reason of false representations made to him of the object of the incorporation and of the persons or corporations who were to become interested in it as shareholders.

So much has recently been written on the subject of monopolies and so-called commercial trusts, that, in the disposition of this case, we have felt constrained to confine ourselves to the decision of the questions actually before us, without attempting to add to the vast mass of judicial literature, more or less instructive, existing on those subjects. The case as we find it on the record is, that various persons interested or engaged in the business of manufacturing and selling vinegar conceived a scheme for uniting in one corporation certain persons and corporations engaged in the same business. That is stating the case as broadly as the defendant claims. A prospectus was issued and manufacturers and dealers were invited to become members of that corporation. In that prospectus it was stated that “ the purpose of the company shall be to buy and sell vinegar with a view to regulating the pro-' duction, lessening the cost of selling, of equalizing the distribution of the surplus in accordance with the demands of the various sections of the country, thereby limiting the cost of reaching the consumer and benefiting both the producer and consumer.” That was the expressed purpose of the intended corporation. The details of the method by which that purpose was to be effectuated are .somewhat intricate, but they maybe stated briefly as follows, viz.: Each vinegar manufacturer was to be at liberty to subscribe to capital stock in the same proportion that his product bore to the aggregate product of all vinegar manufacturers who should become shareholders in the plaintiff corporation ; after all manufacturers had been afforded an opportunity to take stock the balance untaken might be subscribed for by any person.

It was then stated in th°e prospectus that the plaintiff corporation should agree to buy from each manufacturer during the year ending December 1,1887, his. entire product of vinegar, provided, however, that such product should not exceed the amount manufactured by him during the preceding year; but each manufacturer was also to stipulate that during the term of an agreement of the character mentioned, he would not increase his capacity to produce over the amount of his production for the year 1886, nor manufacture more than the plaintiff should contract for with him, and then the plaintiff would appoint such manufacturer an agent to sell under certain terms and prices to be regulated.

It was upon this prospectus and certain representations and statements of promoters of the company that the defendant says he was induced to subscribe to the shares of the plaintiff. There are certain dates which should be kept in mind. Mr. Schlegel swears the prospectus above mentioned was read at a meeting of vinegar manufacturers held at the Linwood House on April 4, 1887. We will assume, therefore, that he made his subscription to stock at or about that date. But it appears in evidence that on the 7th day of March, 1887, application was made to the secretary of state of the state of Illinois for a charter for the plaintiff, that a license was issued to commissioners and that on the 16th day of March, 1887, the commissioners reported to the secretary of state their purpose to form a corporation the object of which “ is to buy, sell, deal in and handle vinegar.” Subsequently, and on the 2d day of May, 1887, the plaintiff was incorporated and in express words for that purpose and no other. It was intermediate those dates that the defendant made his subscription.

There is nothing in the record to show what the law of the state of Illinois is as to the relations of a shareholder to a corporation when he is sued on a subscription to stock, but it is clear that under the law of this state the defendant cannot rely upon a mere prospectus or on the representations of promoters to defeat his liability, unless such prospectus or representations have after the incorporation been adopted by the corporation and the business conducted in accordance therewith. Munson v. S., G. & C. R. R. Co., 103 N. Y., 58; 3 St. Rep., 31. The promoters of a corporation are not the corporation. They cannot contract for or bind it in advance. To quote the language of Judge Redfield, 1 Red. on Railways, 9, “ The promoters are in no sense indentical with the corporation, nor do they represent it in any relation of agency.”

This defendant could not rely upon the prospectus or on representations of promoters, for at the very time these representations are said to have been made there was a pending application in Illinois for the incorporation of a company, the business objects of which were perfectly legitimate, and it was to shares in that company that he subscribed. But we may go a ¡step further in this case, and test* the liability of the defendant by the strictest rules applying to monopolies or combinations in restraint of trade or organizations to prevent competition. Taking the prospectus, and the certificate of organization or charter of the plaintiff together, we find no such unlawful intent or purpose in them as would prevent the enforcement of the defendant’s liability on his subscription. The prospectus shadows forth a lawful enterprise, not one to create a monopoly, but one to protect shareholders against ruinous competition. That is not only the professed, but it may be said to be the apparent purpose. The corporation was organized for a legitimate business. That appears from the terms of the charter. If afterwards unlawful contracts were made, and the corporation exceeded or abused its chartered powers or privileges, it became a subject for the intervention of the state to revoke that charter or for suit by a shareholder to enjoin acts of the corporation ultra vires.

We think the direction of a verdict was right, and that the exceptions must be overruled, and judgment entered for the plaintiff, with costs.

O’Brien, J. concurs.

Van Brunt, P. J.

There being no vice in the organization of the company, and it having been formed for legal purposes, the question of its having forfeited its franchises because of the violation of the laws of the state of organization is one for the authorities of that state to determine, and cannot be disposed of in an action in this state brought to enforce a stockholder’s liability. I, therefore, concur.


author: Van Brunt, P. J.

text:
    Joseph Stern, Resp’t, v. Edward R. Ladew et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Pleading — Mistake in account stated.
    Where the complaint in an action for relief from accounts stated on the ground that they contained mistakes or false and fraudulent items, cleariy shows that the fraud claimed consists in a misstatement as to the highest market price of the goods mentioned and points out the items afEected thereby, it is sufficiently definite, and a motion to make it more definite and certain should be denied.
    Appeal from an order refusing to compel the plaintiff to state the facts constituting the supposed fraud alleged in his complaint in an action to set aside an account stated.

      Martin & Smith (G. A. Strong, of counsel), for app’lts; Jacob Steinhardt, for resp’t.
   Van Brunt, P. J.

This action was brought for relief upon the ground that certain accounts which had been stated between the parties contained mistakes, or false and fraudulent items. A motion having been made upon the part of the defendants that the complaint be made more definite and certain, by compelling the plaintiff to elect between the items which he alleged to arise from mistake, and those items which he claimed to be false or fraudulent, and, in the event that the plaintiff elected to proceed upon the ground that the items in the account were false and fraudulent, that the complaint might be made more definite and certain, by stating facts constituting the false or fraudulent character of such items, such motion was denied ; and the present appeal is taken from-the refusal to compel the plaintiff to state the facts constituting the alleged frauds.

It is urged that the complaint contains absolutely nothing but the bare charge that there was mistake or fraud about these accounts stated, and that there are no allegations as to what the fraud consisted of. But an inspection of the points of the learned counsel seems to show that he has derived from the complaint a reasonably clear idea of the basis upon which the action proceeds, and that the fraud consists in a misstatement in the accounts as to the highest market price of the goods therein mentioned; and it seems to us, from a reading of the complaint in connection with the schedule attached, which is made a part of the complaint, that it is entirely clear that this is the theory upon which the action proceeds. The items are given in which it is claimed this mistake or fraud was committed, and there is no ambiguity in reference thereto, or uncertainty as to the theory upon which the plaintiff proposes to prove his cause of action.

Under these circumstances, there does not seem to be any reason for interfering with the order. The question as to whether this difference between the highest market price and that at which such market price was represented to be by the defendants arose from mistake, or from intentional misrepresentation amounting to fraud, is one which the plaintiff is not called upon to determine in order to succeed. If it was a mutual mistake, he is entitled to relief. If it was a misrepresentation knowingly made by these defendants, and the plaintiff was deceived thereby, he is also entitled to relief; and the plaintiff, as has already been said, is not required to determine as to whether this discrepancy between the highest market price and the amount alleged to be the market price arose because of a mistake upon the part of the defendants, or an intentional misrepresentation. The order appealed from should be affirmed, with ten dollars costs and disbursements.

O’Brien and Follett, JJ., concur.


text:
    Harmon H. Nathan, Resp’t, v. Robert Whitehill, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Depositions — Examination of party before trial — Corporations.
    An order for the examination of an officer of a defendant corporation to enable plaintiff to frame his complaint should not be granted, where it appears that the books of the company are within reach of the plaintiff, and it is not shown that he has made any effort to procure an inspection thereof, or that access thereto has been denied.
    Appeal from an order denying a motion to vacate an order for the examination of Whitehill, one of the defendants, for the purpose of framing a complaint.
    Áction brought by plaintiff for himself and other stockholders against defendants, as directors of the Pictet Artificial Ice Co., and said corporation, to recover for an alleged breach of trust.

      Charles E. Rushmore, for app’lt; John A. Taylor, for resp’t
   Van Brunt, P. J.

We see no sufficient reason disclosed upon the papers for the granting of the order for the examination in this case. It seems to be assumed as the basis upon which this action proceeds that, because the defendant Whitehill was a trustee of the corporation in which the plaintiff was a stockholder, therefore he could not deal with such corporation. This theory, which has so long obtained in this state, seems to have been exploded by the decision of the court of appeals in the case of Gamble v. Water Co., 123 N. Y., 91; 33 St. Rep., 88.

It further appears that the company in which the plaintiff was a stockholder kept books of account, which are within the reach of the plaintiff; and it does not appear thatthe plaintiff has made any attempt whatever to procure an inspection of these books, or that access to them has been denied. Therefore, when the plaintiff states that he is unable to procure the information in regard to the transactions of the company in any other way than by this examination, it does not appear that he has exhausted the ordinary avenues of information ; and it seems to us that, until this has been done, the plaintiff is not entitled to the extraordinary relief demanded in proceedings of this nature. Furthermore, this application is made for the pui-pose of enabling the plaintiff to frame his complaint. It would seem that he has information sufficient to prepare such a pleading to bring the parties into court. After the issues have been framed, if it should appear to the court necessary for the plaintiff in preparing for trial to avail himself of such examination, such relief can then be granted ; but we think that'there is no reason for the granting of this order at the special term, as it is undoubtedly intended as a fishing excursion, to ascertain whether the plaintiff has any cause of action upon which he might reasonably hope to succeed.

Order reversed, with ten dollars costs and disbursements, and motion granted.

O’Brien and Follett, JJ., concur.


text:
    Anna Frances Travers, Resp’t, v. Herbert L. Satterlee, Ex’r, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Discovery — When production op letters will be ordered.
    Where it does not appear that any harm can come of the production of a letter demanded for inspection, which may be material to the issues involved, its production is properly ordered.
    Appeal from an order of the special term directing that the plaintiff be allowed to inspect a letter which she alleges is in the possession of the appellant.

      George H. Kracht (Robert E. Deyo, of counsel), for app’lt; Yellott D. Dechert, for resp’t.
   Van Brunt, P. J.

We see no reason for interfering with the •order made by the court below. It does not appear that any harm can come of the production of the letter in question. If it is material to any of the issues involved in the suit, then the plaintiff is clearly entitled to an inspection; if it is immaterial, then no harm is done by allowing an inspection thereof. We think, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

O’Brien and Eollett, JJ., concur.


author: Per Curiam.

text:
    The Dueber Watch Case Mfg. Co., Appl’t, v. The American Waltham Watch Co. et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Bill of particulars — Boycott.
    Where the plaintiff in an action to recover for injuries to his business through the action of defendants in sending notices to its customers that they would not sell their goods to persons who bought of plaintiff, has given a bill of particulars of the names and addresses of its former customers to whom such notices have been sent, it cannot be required to give a description of the goods and the value which it is claimed such purchasers refused to purchase in consequence of such notice, as this would be to require plaintiff to do what is practically impossible.
    Appeal from an order of the special term directing the plaintiff to furnish a further bill of particulars of its claim.

      Wilber & Oldham, for app’lt; L. C. Ledyard, for resp’ts.
   Per Curiam.

In the opinion of the judge granting the motion, it is correctly stated that the bill already served gives the names and addresses of the persons and firms to whom notices were sent, and who, in consequence of such notices, withdrew their patronage, and thereupon ceased to trade with the plaintiff; but no dates or times are given. A consideration of the nature of the action and the specification of the further details asked for, and which, by the order appealed from, were required to be given, seems to us to determine that they should not be furnished. The action itself is brought against a large number of defendants to recover damages claimed to have been suffered through the making and carrying out by the defendants of an agreement to the effect that they would not sell their manufactured goods to any person who should thereafter buy of or sell to the plaintiff; the result of which agreement and of the notices sent to plaintiff’s former customers was to injure the plaintiff, and to prevent it from making profits which, prior to the acts complained of, the plaintiff had realized in the prosecution of its business. Having given in the bill of particulars already furnished the names and addresses of the then and theretofore purchasers of and dealers in plaintiff’s goods, to whom notices were sent of the defendants’ intention to refuse to -deal with them in case they traded with the plaintiff, we do not think that in addition the plaintiff should be required to do what is practically impossible, viz.: to “ give a description of the goods and the value which it is claimed such purchasers refused to purchase in consequence of the receipt of such notice.” We think, therefore, the application for a further bill should have been denied, and that the order appealed from should be reversed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Eollett, JJ., concur.


text:
    In the Matter of the Application of The Metropolitan Elevated Railway Co., App’lt. In re Jones et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Condemnation proceedings — Railroad—Motion to confirm report.
    In proceedings to condemn land for railroad purposes, a motion to confirm the report of the commissioners of appraisal may be made by the property owners. The provision of § 17 of the general railroad act as to the company giving notice of confirmation was intended only to enforce diligence on the part of the company in bringing the proceedings to a conclusion and insure to the property owners notice of the application for confirmation.
    Appeal from an order confirming the report of the commissioners of appraisal.
    Appellant contends that the court had no jurisdiction to grant the motion made by the property owners to confirm the report of the commissioners, nor to grant the motion, in that the property owners had not acquired such vested rights under the statute as entitled them to confirm the report and thereby move the proceeding.

      Davies & Rapallo (Julien T. Davies and William H Golden, of counsel), for app’lt; Robert S. Rudd and James M. Hunt, for resp’ts.
   Per Curiam.

This proceeding was begun in September, 1889, and is not affected by chap. 28 of the Code of Civil Procedure, which went into effect May 1, 1890. The court, having jurisdiction of the proceedings, could entertain any motion by either party necessary to give efficacy thereto. The provisions of § 17, chap. 140, of the Laws of 1850, in regard to the company giving notice of confirmation, were enacted for the purpose of enforcing diligence upon the part of the corporation in bringing the proceedings to a conclusion, and to insure to the parties against whom the company was moving notice of the application for confirmation of a report. The company could not discontinue the proceeding without an application to the court, the court fixing such terms as it might deem proper as a condition of such discontinuance. It follows, therefore, that, unless the company desired to discontinue, the court might, upon motion of the property bolder, give efficacy to the report of the commissioners by the confirmation of the same.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

■Yan Brunt, P. J., O’Brien and Follett, JJ., concur.


text:
    Leo Goldmark, Resp’t, v. The Metropolitan Opera House Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Depositions — Suppression of.
    Where it is apparent on examination of the answers of the witness to the cross-interrogatories that he has knowingly and willfully refused to fully and fairly answer the questions propounded, it is the duty of the court to suppress the deposition.

      Appeal from an order denying a motion to suppress the deposition of Paul de Choudens, taken at Paris, France, before the United States consul general, under a commission issued in this action.

      Olin, Rives & Montgomery (George Austin Morrison, Jr., and Stephen H. Olin, of counsel), for app’lt; J. M. Dittenhoefer, for resp’t.
   Per Curiam.

It is apparent from an examination of the answers of the witness to the cross-interrogatories that there was a deliberate refusal to fairly and fully answer the questions propounded ; and this, not by way of mistake, but willfully, and with knowledge that the answers were not as full and complete as required. Under these circumstances we think it is the duty of the •court to suppress the commission, and to leave the party who desires to avail himself of the testimony of the assignor of his claim to such relief as he may procure upon an application for a new commission at the special term.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to suppress the commission granted, with ten dollars costs.

Yak Brukt, P. J., O’Briek and Follett, JJ., concur.


text:
    Emil Alfred Cornuel et al., Resp’ts, v. Otto C. Heinze, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Costs — Security fob.
    The court has power to allow a plaintiff to file security for costs after the time limited in the order, upon such terms as are just and equitable.
    Appeal from an order denying a motion to dismiss the complaint for plaintiffs’ failure to file security for costs at the time fixed by a previous order.
    Plaintiffs were required by order to file security for costs, they being non-residents. The time to file such security was extended by stipulation for sixty days. After that time had elapsed, notice of this motion was given, and plaintiffs thereupon filed security before the hearing. The court denied the motion, and ordered that the security filed stand as the security required by the order.

      Arthur P. Heinze, for app’lt; Tracy, Boardman & Platt, for resp’ts.
   Per Curiam.

We are of the opinion that the court had power to allow the plaintiff to file security for costs after the expiration of the time limited in the order, as extended by the stipulation, upon such terms as were just and equitable; and that it had the right to refuse to dismiss the complaint upon the plaintiffs complying with such terms and filing such security.

The order should be affirmed, with ten dollars costs and disbursements.

Yak Brukt, P. J., O'Briek and Follett, JJ., concur.


author: Mayham, P. J.

text:
    Charles W. Little, Resp’t, v. A. Bleecker Banks, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Contract — New York Reports — Questions for jury.
    In an action to recover “ liquidated damages ” for an alleged breach of a contract entered into between the State Reporter and other state officers for the state and the defendant, whereby the latter should have the publication of the New York Reports for thiee years, from December 14, 1877, and which provided that such reports should be placed on sale at a certain price at one or more designated law book stores in Albany and elsewhere, defendant claimed to have designated his place of business in Albany as the place of sale, and that such place was 26 Dean street. He was a member of a law book firm doing business in Broadway, Albany, and the place in Dean street was just in the rear and connected. Plaintiff demanded copies of the reports of men in the employ of defendants firm in the Broadway store, and was refused. The city directories put in evidence showed Broadway to be defendant’s place of business from 1877 to 1880, and thereafter 26 Dean street. The court directed a verdict for plaintiff. Held, that the question whether these demands were made by the plaintiff at the place designated by the defendant should have been left to the juiy.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff upon the direction of the court; also from an order denying a motion for a new trial upon the minutes of the trial judge.

      Rosendale & Hessberg (Albert Hessberg, of counsel), for app’lt; Mills & Bridge (Edwin Countryman, of counsel), for resp’t.
   Mayham, P. J.

This action is prosecuted to recover ten items, of one hundred each, termed in the contract under which they are sought to be recovered “liquidated damages ” for an alleged breach of the same.

The contract upon which the plaintiff seeks to recover was entered into by and between the State Eeporter, secretary of state and comptroller,-acting for the state, and the defendant "as the other party to the contract in his own right, and purported to be under and in pursuance of chapter 448 of the Laws of 1876, as amended by chapters 416, 422 of Laws of 1877, and provided, among other things, that the party of the second part “ shall have the publication of said New York Beports for the term of three years from and after December 14, 1877.”

The contract further, among other things, provided as follows: “ The said party of the second part further agrees that he will, after publication of any volume of said reports in pursuance of this contract, keep the same on band for open and public sale, and will sell and deliver the same to any and all person or persons desiring to purchase, at and for the price of forty-eight cents per copy for each and every volume, at one or more of the regular law book stores in the city of Albany, * * * and also that he will sell and supply at designated book store in Albany, at the contract price, to any and all other law book sellers, such number of copies of each volume as they shall apply for; said party of the second part, however, not being required to deliver more than two hundred copies of any one volume to any one applicant or firm, at one time, or within ten days after the delivering of that number of copies.”

The contract also provided for a forfeiture to the state by the defendant for any breach of its conditions, and stipulated the amount as liquidated damages which the state might recover in an action to be prosecuted by the attorney general.

It also contained this further provision, under which the plaintiff seeks to recover in this action:

“ And it is further agreed that any failure on the part of the party of the second part to keep on sale, furnish and deliver the aforesaid volumes, or any of them, at the price and as hereinabove provided, the said party of the second part shall forfeit and pay for any and every such failure the sum of one hundred dollars, hereby fixed and agreed upon, not as a penalty, but as the liquidated damages suffered by the person or persons aggrieved thereby, the same to be sued for and recovered by the person aggrieved.”

The contract also provided that the copyright of such volumes should vest in the state.

The plaintiff was, at the times of making the several demands hereinafter stated, a law book seller in the city of Albany ; and on the 31st day of July, by his agent, demanded at the law book store of Banks & Brothers, 475 Broadway, Albany, of the clerks and employes of that firm, books under this contract, and tendered and offered to pay the price fixed in the contract; and from day to day thereafter for ten days repeated such visit, and repeated such demand, but no boobs were delivered to him, or his agent, on such demand, and for such neglect' and refusal to deliver the books demanded the plaintiff claims the right of action accrued to him under this contract.

The first objection urged by the learned counsel to the plaintiff’s right to recovery is that there is no evidence that the plaintiff applied for the books specified in the contract at the store in Albany designated by the defendant for supplying the same; and that a demand at the store of Banks & Brothers and a failure to deliver there was not such a breach of the contract as to put the defendant in default and subject him to an action for damages under its provisions.

The question presented by this objection for the consideration of this court on appeal is, whether there is any evidence in the case tending to prove that the store of Banks & Brothers was the place or one of the places designated by the defendant under the contract at which the plaintiff might apply for and demand the delivery of these books, and if therfe was such evidence, whether there was sufficient conflicting evidence in the case to make a disputed question of fact, which should have been submitted to the jury.

The evidence shows that all of the demands for books for which this action was brought were made at the store of Banks & Brothers, No. 475 Broadway, Albany, except one, on August 12, 1890, which was made at No. 26 Dean street. At that time the plaintiff’s agent was informed that the defendant was absent and that he would not return before the 12th of September and that he had no agent at Banks & Brothers’ store, and that he would have to go round to Dean street The witness was then asked:

Q. What did you find when you got around to the rear ? A. I went around to the rear, the door was locked; we rapped and rang the bell; Fredericks opened the door. Mr. Dn Bois asked for Sickles Reports, 18 and 19, and gave him the money for them; .those were, I believe, 63 and 64 N. Y.; we got these books ; he asked -George Fredericks for New York Reports, 77, 78, 79 and 80, and Fredericks shut the door upon him. Before he had a chance to finish asking, he shut the Dean street door; we were outside all the while.”

■ The evidence shows that Frederick Andrews and Huber, of whom these demands were made, were in the employ of Banks & Brothers at their store, No. 475 Broadway. This witness also testified that he had repeatedly received these books at 26 Dean street, but thinks not more than a dozen times,and that in 1889 he received Nos. 78 and 79 at No. 475 Broadway.

The plaintiff also put in evidence the Albany City Directory, showing defendant’s place qf business from 1877 to 1880, inclusive, was 475 Broadway, and that his residence for the same time was 327 State street.

We have thus given the substance of the plaintiff’s evidence bearing upon the question of the defendant's place of delivery of these books, which the plaintiff insists establishes the No. 475 as the place designated under the contract for the sale and delivery by him of these books.

The plaintiff also insists that the complaint alleges that the store, No. 475 Broadway, was the proper place for the demand and delivery of these books, and that that allegation is not sufficiently denied in the answer to put it in issue and, therefore, stands admitted.

But we think the answer clearly takes issue with this allegation, and affirmatively alleges the place of demand and delivery was No. 26 Dean street. The only evidence offered on this point by the defendant was the Albany City Directory, which designates defendant’s place of business from 1881 to 1891, both inclusive, at No. 26 Dean street, and his place of residence during the same time at No. 327 State street, Albany.

Upon this evidence the defendant’s counsel asked to go to the jury upon the question whether these demands were made by the plaintiff for these books at the place designated by the defendant.

We are inclined to hold that here was a disputed question of fact which should have been submitted to and passed upon by the jury. No personal demand was made of the defendant for these books, and the plaintiff’s agent was informed at the time of making the demand that those of whom the demand was made were not the agents of the defendant.

The place of making the demand, therefore, became important. The provisions of the contract, while professing to liquidate the damages for default in the performance, are still in the nature of a penalty, and as the forfeiture can' be claimed for every failure to comply with a proper demand, we think the jury should have been permitted to pass upon the question fairly in dispute in this case, whether the demand had been made at the place designated.

It is true that one demand was made at 26 Dean street, but if that was the proper place, a failure to comply would create a cause of action but for one penalty of $100, and would not justify a recovery for $1,000. But it is insisted by the learned counsel for the plaintiff that Ho. 475 Broadway and 26 Dean street constitute in fact but one book store, and it is not quite clear that if the case had been submitted to the jury upon that point they might have so found, but we do not see how the trial court, or this court, on appeal, can settle as matter of law that apparently disputed question of fact. It is also urged by the learned counsel for the plaintiff that there is no provision in the contract requiring a formal designation of the store at which the books will be kept for sale. The language of the contract on that point is as follows: “The said party of the second part further agrees that he will, after publication of any volume of said Reports in pursuance of this contract, keep the same on hand for open and public sale, and will sell and deliver the same to any and all person or persons desiring to purchase, at and for the price of forty-eight cents per copy, for each and every volume, at one or more of the regular law book stores in the city of Albany, and also in one or more of the regular law bookstores in the city of Hew York, and that the same will be simultaneously placed on sale in each of said law book stores, and also that he will sell and supply at the designated book stores in Albany at the contract price to any and all other law book sellers such number of copies of each volume as they shall apply for; said party of the second part, however, not being required to deliver more than two hundred copies of any one volume to any one applicant or firm at one time, or within ten days after the delivery of that number of copies.”

It is quite clear that the parties from the language employed in this provision of the contract contemplated the designation by the defendant in some form of the store at which he would Keep these books ón sale, both to the general public and the trade.

It is equally apparent that a failure to so designate would not subject the defendant to the penalty imposed by the terms or the contract for a failure to deliver volumes on demand, and while such designation is a beneficial provision to the state or public, which might be compelled in a proper action, until made the party desiring to purchase books would be compelled to demand the book of the defendant personally, or of his duly authorized agent, or at his peril seek out the book store at which the defendant kept such on sale, and demand them there, before he could claim the forfeiture under the contract; so that we are brought back to the question of fact, was the book store of Banks & Brothers, Ho. 475 Broadway, or Ho. 26 Dean street, the store at which the defendant kept these books on sale under the contract? That question is one of fact to be answered by the jury.

If we are right in this conclusion, the refusal of the learned, judge to submit it to the jui-y was error; and we are, therefore, not called upon to consider the other and perhaps more important questions in this case, presented on this appeal.

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

Putnam and Herrick, JJ., concur.


author: Landon, J. Herrick, J.

text:
    Leocardie A. V. Cassagne, Pl'ff, v. James M. Marvin et al., Def'ts.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Trust — Purchase of property by trustees appointed to act for BONDHOLDERS.
    Certain persons who severally held bonds secured by a general mortgage on hotel property, on which mortgage a decree of foreclosure had been granted, entered into an agreement by .which they appointed M. & H. trustees, who were thereby authorized by their bondholders severally to ■ attend the foreclosure sale and act for them, and purchase the property, and “ to take and hold the legal title thereto, with all the rights as absolute owners, being at all times accountable for the due and proper performance of their trust.” They bought the property, which was conveyed to them as trustees. Thereafter the subscribers to that agreement entered into a second agreement ratifying the former. Held, that the legal title to the property was vested in M. & H., subject to the rights and equities of the assenting bondholders as expressed in the agreements.
    2. Same — Rights of bondholders to certificates.
    M. & H. issued certificates to the bondholders stating that they were entitled to a certain beneficial interest in the property, and that “apurchaser may receive a certificate on return of this to the trustees properly indorsed.” One R-. received such a certificate, and in writing assigned it to 0., who demanded a new certificate, and was refused. Held, that 0. was not entitled to a certificate.
    Appeal by all of the parties to the action from a judgment rendered on a decision of a justice at special term dismissing the complaint.
    Action brought to compel the defendants to issue to the plaintiff a certificate of interest in the United States Hotel property at Saratoga Springs, in the place of one sent to the defendants by her, and which had been assigned to her.
   The following is the opinion at special term:

Landon, J.

I have given this case and the arguments of counsel careful consideration. The parties to the purchase of the premises intended to secure their several interests by having the defendants take the legal title. They intended to confer upon the defendants the sole management and power of sale of the property, and they intended to make their own interests assignable by transferring their certificates representing such interests. They did not create an express trust, because they did not keep within the statutory provisions for that purpose. The defendants, therefore, did not take title as trustees of an express trust. If we hold that the several shareholders took title absolutely with power of sale in trust in the defendants, we shall defeat the intention of the parties, and very likely throw the title into great confusion, since during the sixteen years that have elapsed since 1875, many of the shareholders must have died. Effect should be given to the intention of the parties, not only as manifested by their original agreements, but also by their practical construction of them, and dealings in reliance upon them. These agreements, and dealings upon the faith of them, have created relations between the parties other ‘than those defined by the statutes providing for the creation of uses, trusts and powers, and, I think, leave the rights of the parties to be determined under the “ trusts arising or resulting by implication of law,” instead of its statutory expression. 1 R„ S., 728, § 50.

The defendants’ counsel cites numerous cases in which the courts imply a trust from the agreements and acts of the parties, in order to prevent fraud, or to prevent the statute of frauds or of uses and trusts from being used as instruments to accomplish fraud.

What the court will do to thwart fraud it may do to promote honest dealing, when not to do it is to visit unnecessary injury upon the parties. \

In this case, if Marvin and Hall should repudiate the equities of the other shareholders, the court would be prompt to uphold them, and declare that Marvin and Hall were the trustees of such shareholders; it would not permit them to use the statute of uses and trusts as an instrument to do injustice. It cannot be doubted that the position it would force them to take to remedy their wrongdoing, it may allow them to hold when they and all the parties in interest concur. We must deal with the situation as we find it after sixteen years of action by all the parties in reliance upon the validity of the original agreements. In this respect the case differs from that of- the construction of a will in which the question is how has the testator bestowed his bounty, or what does the instrument solely by the force of its terms accomplish. The beneficiaries have only such rights as the will confers. Here the parties had rights whether the agreements expressed them or not, and if the agreements do not properly express them, we may be helped to ascertain them by the long practical construction which the parties have given to the agreements.

I, therefore, conclude that the legal title to the premises was vested in Marvin and Hall, subject to the rights and equities of the assenting bondholders as expressed in the agreements and subsequent certificates, nevertheless, I feel it to be my duty to follow the decision of the general term in this case, 16 St. Rep., 827, so far as it gives directions in respect to its practical disposition, and to hold that the plaintiff is not entitled to a certificate. In the case of Cassagne v. Ostrander, 20 St. Rep., 146, the demurrer was properly overruled.

It is now practically conceded that both sides of that case were identified in interest, and the opinion there expressed ought not to prejudice this case. I have given attention to the defendants’ claim to a lien, and conclude that a part of it is "not meritorious, and as to the remainder that the plaintiff paid for the certificate in the belief, induced by Mr. Marvin's letter, that none would be asserted.

H. A.Vieu (Edgar T. Brackett, of counsel), for app’lt; Charles S. Lester, for resp’ts.

Judgment for defendants, with costs.

Herrick, J.

This case has been twice before this court upon appeal, 16 St. Rep., 327; 20 id., 147, and I feel constrained by what the court said upon those appeals to hold that the plaintiff is not entitled to recover.

As to the claim of the defendants that the amount of their costs and expenses 'should in this action be adjudged a lien upon the interest of the plaintiff, J can see no reason to differ from the learned justice who tried the case, or from the views expressed in bis opinion.

The judgment should be affirmed; as both parties appealed, and as neither have succeeded upon such appeal, let an order of affirmance be entered, without costs to either party.

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


author: Russell, J.

text:
    William T. Hart et al., Resp’ts, v. The Ogdensburgh & Lake Champlain R. Co. et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed March 2, 1893.)

    Depositions — Open commission, when granted.
    Plaintiffs, as stockholders of the O. & L. C. Railroad Co., sue said company and the G. Y. Railroad Company to prevent a consolidation of the two companies, on the ground that the O. & L. 0. Co. is so largely officered by the C. Y. Co., and so completely within its grasp, that the contract of consolidation is simply one with itself, and also because, if not void, it is grossly inequitable. The property affected lies within this state. The evidence of the past dealings between the two defendants and their officers is shown by papers and books within the state of Yermont, and in the possession of persons unknown to plaintiffs, and such evidence is neA cessary to prove certain alterations of the complaint. Held, that a motion to take such evidence by open commission in Yermont should be granted.
    Appeal from order granting an open commission.
   The following is the opinion of the court at special term:

Russell, J.

The plaintiffs, as stockholders of the Ogdensburgh Company, sue the defendants to prevent a consolidation of the two companies. Their grounds for relief, shortly stated, are:

First. The Ogdensburgh Company was so largely officered by the other company and so completely within its grasp that the contract of consolidation proposed is simply one which the Central Yermont Company is making with itself wherever it affects the property of the Ogdensburgh Company, and consequently the interest of the plaintiffs.

Secondly : If -for this reason the contract be not void, it is still so grossly inequitable for many reasons, one being that it is proposed to take ten shares of the Ogdensburgh Company to make one share of the new company, while the Central Yermont -Company exchanges its shares each for each in the new company.

The subject matter or property affected by the proposed consolidation, being the road-bed and the other property of the Ogdensburgh Company, lies within the state of New York. This is, therefore, properly the forum for the litigation. The evidences of the dealings for past years between the companies and between the nominal officers of the Ogdensburgh Company, who are charged to have been really the agents of the Central Vermont Company, are shown by books and papers whicn are outside the state and in the possession of the latter company in the state of Vermont. If, therefore, the plaintiffs are compelled to prove, as matters of fact, certain allegations of their complaint by exact evidence as they appear upon the books and from the papers of the two companies, and as known by the officers of the two companies, it is necessary for them to go to the fountain-head of the evidence and largely try the matters of fact in the State of Vermont. If this necessity arose from the attempt of the plaintiffs to bring their action in a forum which was palpably out of place, it would be sufficient to deny an open commission to them. The .courts would tell them' to go to that forum for trial. But as they have brought their action where the property lies, the necessity is an incident, and does not bar their right to a fair trial.

The motion is strenuously opposed on various grounds, none of which seem to this court to be sufficiently meritorious to call for an absolute denial of the motion.

It is stated in the affidavit of the attorney for both companies, upon information and belief, that the motion was brought to compel the purchase of the plaintiffs’ stock at a large price. I see no-fact stated by him, or appearing from any of the papers, which justifies the inculpating part of such a charge. If it is meant that the plaintiffs are seeking with diligence, and the use of all such legal appliances as are proper, to protect their stock interest in the Ogdensburgh Company, and would be glad if such diligent and strenuous action appreciated the value of their stock sufficiently so that those interested in the defense would purchase at a satisfactory price, then the plaintiffs are doing only that which they have a legal right to do, and it is not to be supposed that any one who brings a legal action does so to simply vindicate a pure principle of morality and j ustice.

Second. The defendants also claim laches. Ho right .of theirs seems to have been impaired or position, lost by delay. The next trial term in St. Lawrence county is nearly two months away, and it would seem that this commission might be executed if both parties proceed with diligence long before that term.

Third. It is contended that the application, so far as it rests upon the allegations of the complaint, and upon the statements of the attorney and counsel in the moving affidavits, rests upon information and belief, and various cases are cited containing expressions of opinion by different judges that in such cases the affidavit should be made by the parties themselves, instead of the attorney and counsel. There is in many cases a reason for such a rule. But affidavits and statements in papers are simply designed to present facts for the information of the court, and upon which it can act. A conclusion stated upon information and belief, but which is based upon facts which appear beyond contradiction, is as convincing as the absolute state-meat of knowledge. In this case many of the facts are beyond dispute. Some of them are admitted by the pleadings, and, of course, as to those no evidence is required. But other allegations which,' upon the argument of the injunction before me, were acquiesced in, or assumed for the purposes of that argument to be as claimed by the plaintiffs, are put in issue by the forms of the answers. Hence evidence is required even upon the various facts which demonstrate the connection of the Central Vermont Company with the organization of the Ogdensburgh Company for various years back. The entire scope of the allegations of the complaint charging bad faith and mismanagement of the Ogdensburgh Company is denied by the answers.

It, therefore, comes pretty much to this, either this court must, upon this motion, compel the plaintiffs to give up their case, by denying to them the opportunity to prove i't, or must allow them such a commission as will enable them to get their evidence, which must almost entirely come from adverse witnesses, and books and papers in the possession of the adverse parties. Those adverse parties deny to these plaintiffs a right or privilege to examine these books and papers, although the plaintiffs are stockholders. The claim made by the defendants’ counsel that when an examination of an adverse party, or the testimony of' an adverse party by commission, is sought, it is necessary to prove to get the order that that adverse party will state the facts favorable to the side moving, seems’ to me to be unfounded.

It is doubtless the rule that in the requirement of the adverse party to submit to an examination, it should be evident that that adverse party should have knowledge of the facts from which the moving party seeks to draw the favorable conclusion ; but that is the extent of the rule. Otherwise a denial under oath upon the motion by the adverse party that he could testify favorably would be sufficient to destroy the application.

I think the motion should be granted, and the only serious difficulty which I have had with the determination is as to the extent of the latitude to be allowed. Plainly an ordinary commission with written interrogatories would be useless ■ in view of the want of exact knowledge of the methods of the management of the two companies possessed by the plaintiffs or their counsel. It is also evident that the plaintiffs are not in possession of the names of the precise persons who have custody of the important books and documents which they may need, or of the names of those who may have passed from the service of the defendants, but who were actors at the time of various of the events. It may be easily seen why the plaintiffs can charge the happening of various events which culminated in what they allege to be a disaster, and yet not be able prior to an examination of the parties participating to state in extenso by common law evidence the exact means by which the result was attained. I cannot believe that the defendants or their counsel will present needless or harassing obstacles in the way of obtaining proper and relevant evidence upon the 'issues after the court shall have awarded a commission for that purpose. And acting on such belief, I cannot indulge the plaintiffs with the extreme latitude of such an open commission as would allow an unnecessary range of examination, nor do I believe they desire it

Louis Hasbrouck (Daniel Magone and John C. Keeler, of counsel), for app’lts; Theodore Swift (Charles O. Tappan and William C. Loring, of counsel), for resp’ts.

Therefore, the commission, in a general way, should be limited to an examination of those present and past officers, agents and clerks of the companies who have, or have had, charge of the books and papers and have knowledge of the events alleged in the complaint upon those subjects, and the examination should be confined to proper proof, first, as to whether the defendant, the Ogdensburgh Company, has been under the control of the management of the other defendant, and to what extent?

Second. By whom and under what circumstances was the attempted consolidation arranged and so far carried on ?

Third. The circumstances which render that arrangement unjust to the Ogdensburgh Company, and

Fourth. The amounts of money or property which the Central Vermont Company should have credited to the Ogdensburgh Company, or which they are obliged in law to account for ?

Order granting open commission affirmed on opinion of special rterm, with $10 costs and printing and other disbursements.

Mayham, P. J., Putnam and Herrick, JJ., concur.


author: Putnam, J.

text:
    Caroline E. Wheeler, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed March 2, 1893.)

    1. Railroad — Negligence—Fires set by defective engines.
    In an action against defendant railroad company for damages caused by the destruction of plain' iff’s buildings by fire alleged to have been caused by sparks from defendant’s engine, through its negligence, it did notapper that any one saw the sparks emitted,and although plaintiff’s husband and her hired man were in the building when the fire originated on the day it occurred, neither were examined with a view of showing that the fire could not have occurred by some act of theirs, nor was it shown that children or others were not therein previous to the fire. The fire occurred at noon, and started soon after defendant’s train passed. Testimony was given-that the engine was in first-class condition. Held, that the complaint was properly dismissed,
    .2. Same.
    _ The fact that large cinders were found on defendant’s track and on plaintiff’s premises, twenty-five paces therefrom, at or about the time of the fire, does not show that the engine was not in good repair, when it is not proven that they came therefrom.
    '3. Same.
    The court cannot presume defendant negligent for using an old engine to draw its freight trains, or one in which it was difficult to keep up steam, in the absence of competent testimony showing the spark-arrester defective.

      Appeal from judgment dismissing the complaint.

      Cady & Hoysradt (J. Rider Cady, of counsel), for app’lt; Ashbel Green (F. L. Westbrook, of counsel), for resp’t.
   Putnam, J.

Plaintiff’s buildings were destroyed by fire on J une 19, 1890, in the afternoon, between the hours of 12 and 1 o’clock. Defendant’s local freight train, drawn by engine No.. 82, had passed 15 or 20 minutes before. Plaintiff’s buildings stood on the easterly side of and very near defendant’s track, and the wind was blowing from west to the east. The fire started on the roof of plaintiff’s barn towards the railroad. Some of defendant’s employes, at the time, were in the yard adjacent to the building, but .it does not appear that any one saw sparks emitted from the defendant’s engine while passing plaintiff’s premises.

Plaintiff contends that there was evidence which should have been submitted to the jury, tending to show that the fire occurred on accountgof the negligent emission of sparks from defendant’s said engine. The trial judge thought otherwise, and nonsuited the plaintiff, deeming that there was no sufficient evidence to show that defendant’s engine caused the fire, or that it was not properly constructed to prevent the emission of sparks.

I regard the case as a close- one, and have reached a conclusion with considerable hesitation. °

It is held that in such an'action as this, and under such circumstances, after testimony has been produced tending to exclude the probability that the fire originated from any other source, evidence may be given showing that it was possible for the sparks from the engine to reach the burned building, and facts tending to show that the fire originated from that source and no other. Amer. & Eng. Encl. of Law, 8 Vol., pages 7 and 8, and notes; Crist v.Erie Railway Co., 1 T. & C., 435; 58 N. Y., 638; Sheldon v. The Hudson R. R. R. Co., 14 id., 218; Field v. N. Y. C. R. R., 32 id., 339 ; Hinds v. Barton, 25 id., 547.

In this case it is not clear that plaintiff produced the preliminary proof held necessary by above and kindred cases. Although plaintiff’s husband and her hired man were inside the building where the fire originated on the day it occurred, neither were examined with a view of showing that the fire could not have occurred by some act of theirs inside of the barn. It was not shown that they did not use a match within the building before the fire, as to light a pipe or otherwise. It was not shown that children or other persons were not within the bam previous to the fire. In fact no direct evidence was given by plaintiff tending to show the improbability of the fire originating from some cause other than from defendant’s locomotive. But I am inclined to think that direct evidence tending to show that there was no other probable cause of the fire, except sparks from defendant’s engine, was unnecessary, when the facts of the case indicate that the fire probably originated from that cause.

The fire was in the summer time, in the middle of the day, and' when several men were in the yard adjoining the building. It started a few minutes after defendant’s train passed up the road,. on the roof towards defendant’s track, the wind blowing from the direction of the railroad toward the barn. It may be assumed that on the 19th of June and between twelve and one o’clock in the afternoon no fire or light would be used in the barn. If a match had been dropped or used in the building, a fire originating therefrom would not have started in the roof.

I think, therefore, the evidence tending to show that the fire was started by defendant’s engine, that the plaintiff, within the authorities cited above, was entitled to have that evidence submitted to the jury, if she also produced any sufficient evidence tending to show negligence on the part of the company. See the Lackawanna & Bloomsburg R. R. Co. v. Doak et at., 52 Pa., 379.

Assuming that defendant caused the fire in question, it remains to be considered whether there was testimony given that said engine No. 82 was not in proper condition at the time of the fire which the trial judge should have submitted to the jury.

Defendant was not responsible for the fire if it used proper care. It had the right to run its locomotives at all times on its track, provided they were in proper condition. Collins v. N. Y. C. & H. R. R. R. Co., 5 Hun, 506; 71 N. Y., 609.

And it was for the plaintiff to show by evidence the defect, if any existed, in defendant’s engine. Cosulich v. Standard Oil Co., 122 N. Y., 123; 33 St. Rep., 287.

The only direct testimony as to the condition of said machine was given by the witness Fisher. He testified it was in 'first class condition two or three days before the fire; that the sparkarrester was then examined, as it was a few days after the fire, and was found in good repair on each occasion.

The fact that large cinders were found on defendant’s track and on plaintiff’s premises, twenty-five paces therefrom, at or about the time of the fire, does not show that the engine was not in good repair, because it is not shown that such cinders came therefrom. In this case plaintiff has identified the engine which caused the fire. No other engine of defendant’s is shown to have passed the burned building at any time near the time of the fire. In cases where it is probable that some engine of a railroad company has started a fire, and several are shown to have passed at or about the time, evidence that engines on that road have frequently dropped sparks or cinders may be competent. Sheldon v. The Hudson R. R. R. Co., 14 N. Y., 218.

But such evidence is not competent where the engine that caused the fire is identified, unless it is also shown that such machine is of similar construction, state of repair or management, to those which are shown to have emitted such sparks or cinders. Gibbons v. Wis. Valley R. R. Co., 58 Wis., 335; 13 Amer. & English Railroad Cases, 469; Boyce v. Cheshire R. R. Co., 42 N. H., 97.

The court cannot presume defendant negligent for using an old engine to draw its freight trains, or one in which it was difficult to keep up steam, in the absence of competent testimony showing its spark-arrester defective. We should not imagine that be■cause an engine is not new, and is not perfect as to its capacity for generating steam, that its spark-arrester is out of order.

Defendant's engine was shown to have the best known appliances to prevent the emission of sparks, and as we have shown, the only witness sworn as to its condition testified that it was in .good state of repair before the fire and when examined two or three days afterwards.

We must remember that this case is not like those where the plaintiffs have been able to show prior to a fire that the engine has emitted large sparks or caused frequent fires. .In such cases it has been held in some instances that such emission of sparks and fires was some evidence of a defective engine, the effect of which was to throw upon the company the burden of showing that its locomotives were in good condition. In this case no one saw any sparks emitted from engine No. 82 at the time of the fire, nor was there any proof of its causing any fires or emittting any large ■sparks prior to the fire in question. It was then incumbent on the plaintiff to show an improper condition of its spark-arrester ■or a defect in the engine that might cause the fire;

The only testimony offered by the plaintiff tending to show a defect in the spark-arrester of engine No. 82 that I am able to discover was its emitting sparks on two occasions after the fire in question.

The occasion testified to by Van Valkenburgh, when a car load ■of hay was burned, occurred some time after the fire, I think three or four week s. Nor does it appear that the fire which destroyed the hay was caused by large sparks, and not by such as are emitted from an engine with the best known appliances, in the best condition. The witness Lampman testified to another occasion, not as suggested by plaintiff’s counsel on June 20th, the day after the fire, but about the 20th of June, the 20th or the 22nd, he is not positive which. He says that a large coal of fire was then emitted from the engine and fell into his wagon three rods distant, setting fire to the straw.

Plaintiff’s contention is that this large spark, described by Lampman, could not have been emitted through a spark-arrester in proper condition, and although Fisher testified that the arrester in No. 82 was in good condition, both before and after the fire, yet by this testimony of Lampman’s a question of fact was raised which could only be properly determined by a jury.

I think that the learned trial judge took the correct view of this testimony. As it was for the plaintiff to show defendant’s negligence, if any, and as Lampman was uncertain whether the ■occurrence at Coxsackie was on the 20th or 22d, we should assume it occurred on the 22d, three days after the fire. It would not have been proper for the court to have allowed the jury to guess that the occurrence was on the 20th, when the witness himself did not so testify. I think the fact that three days after the fire one large spark was emitted from defendant’s engine could not be properly submitted to the jury as ■evidence that defendant’s engine was out of order three days before. There was ample time in the three days for some ■accident to have happened to the spark-arrester, or for a hole to have been worn in the netting. Counsel for the plaintiff suggests that a witness testified that no alterations or changes had been made in the- engine from June 1 to September 1 of that year. ■Such evidence, however, should not be deemed as meaning that ■changes may not have occurred during the time mentioned to the defendant’s engine by use or wear. It has been held in such an action as this that evidence that defendant’s engine on the same trip and the same day caused other fires, was competent as tending to show the defective condition of the engine. Slossen v. B. C. R. & N. R. Co., 60 Ia., 215. But here the emission of the large spark was several days after the fire.

If the affimative had been with the defendant as to the condition of the engine, and it had produced evidence that the sparkarrester was in good condition, both before and after the fire, it might have been proper for the plaintiff to have shown in rebuttal the emission of the spark after the fire. Such was the case of Loring v. W. & N. R. R. Co., 131 Mass., 469.

Plaintiff had the burden of showing that on June 19 defendant’s engine was out of repair in such a way as to cause the fire that destroyed her building. She failed to produce any evidence from which the jury would have been authorized to find that ■such locomotive was so out of repair until some days after the fire. The then defective condition of the spark-arrester of said ■engine may have existed prior to the fire which injured plaintiff, or it may, from wear or accident, have developed since the fire. It was for the plaintiff to show the defect prior to the fire. This ■she failed to do.

It would not have been proper for the court below to have allowed the jury to conjecture as to the time the spark-arrester became •out of order. See Searles v. Manhattan R. Co., 101 N. Y., 661; Reiss v. N.Y. S. Co., 128 id., 107; 38 St. Rep., 842.

The court below, I think, did not err in excluding the evidence offered by plaintiff to show that prior to the fire and in the vicinity of the premises where .the fire occurred sparks and cinders were found on the line of defendant’s road and on plaintiff’s premises. As we have seen, plaintiff identified the engine that caused the fire, and hence the evidence in question was properly excluded by the court.

I, therefore, conclude that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.