text:
    In the Matter of the ATTORNEY-GENERAL v. THE CONTINENTAL LIFE INSURANCE COMPANY, in the Matter of the Application of CHARLES H. WINFIELD, Referee, for Payment.

      Application by a receiver, who has been removed from his receivership, to wroeure pay ment of his compensation — the fees of a referee appointed to report as to the amount of such compensation must be first paid by the said receiver if he is the party in whose favor the report is made.

    One Anderson, after having been appointed a receiver of an insolvent insurance company, was removed and another person was appointed in his place. Thereafter, upon an application made by Anderson to procure the payment of his commissions, and of the amounts due to certain persons employed by him, an order was made referring the matter to a referee to take proof as to the services rendered by Anderson and his counsel, and to report as to what would be a reasonable compensation, together with his reasons and the testimony. Thereafter the referee made a report in favor of Anderson, but no action was shown to have been had upon it.
    Subsequently the referee applied for and procured an order fixing the amount of his fees and directing the new receiver to pay them to him.

      Held, that the order was erroneously made.
    That it was the duty of Anderson to pay to the 'referee the amount of his legal and taxable fees on taking up the report, and that the amount so paid would be recovered from the new receiver or lost by Anderson accordingly as the report of the referee should be confirmed or rejected.
    Appeal from an order made at a Special Term allowing a referee $7,500 for his services, and also from another order made at a Special Term confirming the prior one.
    John I. Anderson had been appointed receiver of this company and was removed, and another person appointed in his place. Afterwards on the 22d of September, 1877, an application was made by Anderson for the payment to him of commissions, and for the payment to certain persons employed by him of counsel fees. On that application the Special Term made an order referring the matter to Charles H. "Winfield. The appeal papers contained no copy of that order nor of an order supplemental thereto, and their contents can only be gathered from the report. They seem to have been orders directing the referee to take proof as to the services rendered by Mr. Anderson and by his counsel, and as to what would be a reasonable compensation, and to report the conclusions of the referee with his reasons and the testimony.
    On the 11th of July, 1881, Mr. Winfield made a report favorable to Mr. Anderson. It did not appear what action, if any, has been had thereon. On the 6th of August, 1881, Mr. Winfield presented to the Special Term a petition asking that his fees apd compensation as referee be determined, and that the amount be paid by the present receiver. And an order was made determining those fees and that compensation at $7,500. The order recites that it is not to be considered a ratification of the report.
    Some of the‘interested parties, claiming that they had not been notified of the motion of Mr. Winfield, moved for a rehearing or other relief. And on a hearing of all parties January 28, 1882, the order of August 6, 1881, was ratified and confirmed. The present receiver was directed to pay Mr. Winfield $7,500, less an amount already received by him. From this order the Attorney-General and other interested parties appeal, and they present two points: First. That the order should not diréct the present receiver to pay the fees of the referee. Second. That the fees allowed are excessive.

      Leslie W. Russell, attorney-general, for the appellants.

      Raphael J. Moses, Jr., for Charles P. Hartwell and others, appellants.

      JulAen T. Ramies and J. Ilenry Worh, for Marcus W. Lewis and others, policyholders, appellants.

      Geo. W. Wingate, for John P. O’Neil, receive!’, appellant.

      Wm. Barnes, for divers policyholders, appellants.

      H. H. Morse, for the respondent.
   Learned, P. J.:

We are unable to see any authority for directing the receiver to pay these fees. The simple case is that Mr. Anderson has, or thinks he has, a claim against funds in the hands of a receiver. He might petition for its payment, or he might probably ask leave to sue and to determine the amount by a suit. If he were to sue, he would have to pay all the expenses of the litigation (including a referee’s fees if the ease was' referred), until final judgment in his favor. That final judgment would include the legal fees, etc., taxable. So in this case he has petitioned for payment. The matter has been referred, not probably to hear and decide, but to report. The report being in his favor he can pay the fees and take it up. If the court should finally confirm the report and adjudge payment, such •adjudication would doubtless include all proper fees, taxable or ■chargeable in such cases. If the court should finally refuse to confirm, , and should deny him any payment, the fees he would have paid would be a part of his loss for making an unjust claim. The doctrine of Geib v. Topping (83 N. Y., 46), is quite applicable. The referee is not an employee of the court, and the court has no responsibility in his payment. The order which was made in this matter assumed that the burden of the payment might afterwards be determined on the final order upon the Anderson claim. But it would be difficult to say how the receiver could ever recover from Mr. Winfield or from Mr. Anderson these fees, after they had once been paid. We are, therefore, of the opinion that the part of the order which directs the receiver to pay those fees is erroneous.

This view might, for the present, dispose of this order. Because the question what fees and compensation Mi’. Anderson ought to pay the referee, in order to obtain the report, is not properly before us. Mr. Anderson is no party to this motion or this appeal. The receiver, the Attorney-General, and intervening creditors appear. But Mr. Anderson had, of course, no objection that the court should require the receiver to pay the .referee any amount of fees. When however the question arises what fees must Mr. Anderson pay in order to obtain the report, if the referee insists on payment before he delivers it, then plainly Mr. Anderson ought to be heard; and he was not heard at the Special Term, as appears by the order. If however that part of the order which determines the amount of the fees should remain standing, then, after a final adjudication on Mr. Anderson’s claim, if he should recover and recover his costs, this order would be conclusive. For this reason while we cannot, as against Mr. Anderson, determine the amount of the fees, we can at least examine the question whether they should remain determined at the amount mentioned in the Special Term order.

We think this amount cannot stand.

First. Upon the papers before us there is no sufficient evidence of an agreement for a greater compensation than that given by statute. No signed agreement is shown. And the extract from the minutes of the trial does not show a consent by the Attorney-General, or by eei’tain of the policyholders. (Chase v. James, 28 N. Y. Sup. Ct. [16 Hun], 16; First. Nat. Bank v. Tamago, 77 N Y., 176.)

Second. Even if the agreement for a greater compensation had been validly executed, we are satisfied from an examination of the affidavits, as they at present appear, that the fees would not reach the sum allowed. The alleged agreement was twenty dollars for each sitting where proceedings were had, and ten dollars for each adjournment. The affidavit of Mr. Moses shows from the stenographer’s minutes sixty-five sittings. The referee’s clerk claims 138 ; but does not state that any proceedings were had at all, or any of these. If proceedings were had at sixty-five, and the others were adjournments, this would make, say $2,700. The further compensation was “ ten dollars an hour for each hour actually spent by the referee in examining evidence or writing a report.” The case was closed May sixteenth and decided July eleventh, giving forty-eight working days. It does not appear how much of that time was spent by the referee on this case. It certainly is not shown that the remaining $5,000 was earned in that time at ten dollars an hour. The referee’s petition states that he believes he has spent from 800 to 1,000 hours during the period of three years and three months on this matter, directly and indirectly. But the agreement, if made, could not have intended to give ten dollars per hour for the time spent in the sittings, in addition to the twenty dollars a day. There is not sufficient proof of the services rendered to enable ns to say that if the agreement had been made the amount allowed has been earned. -

The orders appealed from must therefore be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs. This is without prejudice to any proper motion for adjustment of the fees on notice to Mr. Anderson and all others interested.

Present — Learned, P. J.; Boardman and Bocees, JJ.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. This to be without prejudice to any proper motion for adjustment of fees on notice to Mr. Anderson and all persons interested.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. THE BOSTON, HOOSAC TUNNEL AND WESTERN RAILWAY COMPANY and Others, Appellants.

      Action by the attorney-general to dissolve a corporation — it may be brought under section 1948 of the Oode of Oivil Procedure without obtaining the leave of the court-an order granting leave to bring the action will not be reversed on appeal — the court may make the order without notifying the party proceeded against\>f the application — affect of the setting aside of the order upon the action if already commenced.

    It is not necessary for the attorney-general to obtain the leave of the court to bring an action, under section 1948 of the Code of Civil Procedure, against persons assuming to act as a corporation -within this state without being duly incorporated.
    The court at General Term will not reverse upon appeal an order made by the court, under section 1799 of the Code of Civil Procedure, granting leave to the attorney-general to bring án action to procure a judgment vacating the charter, or annuling the existence oí a corporation, for one of the reasons specified in section 1798 of the said Code, unless, perhaps, in an extreme case where the complaint is on its face wholly without foundation.

      Qywre, as to what effect the reversal or vacating of an order allowing such an action to be brought would have upon the action if it had already been commenced.
    Whether or not notice of the application for the order shall be given to the corporation to be sued rests in the discretion of the court, and its failure to require any notice to be given does not render the order subsequently made invalid.
    Appeal from an order made at a Special Term denying a motion to vacate an ex parte order granting the plaintiffs leave to bring this action.
    The . complaint alleged that the Boston, Hoosac Tunnel and Western Railway Company was the name of a combination or association of persons claiming and pretending to be a corporation, and exercising corporate rights and franchises - within this State without having been lawfully incorporated, and, also, that it had willfully exceeded all the powers it could possibly have as a corporation if it had been duly incorporated. It set forth the facts which were claimed to establish these allegations. It prayed for a judgment declaring that the said defendant was not a lawful corporate body, and that the pretended corporation be annulled and forever ousted from all corporate privileges and franchises, or declaring the same to have been forfeited by the willful excess and abuse of its powers.

      Leslie TP". Russell, attorney-general, and George F. Oomstoch, for the respondents.

      F. W. Paige, for the appellants.
   By the Court :

In some aspects of the complaint, this action may be held to have been brought under section 1948, subdivision 3, Code of Civil Procedure, and the principal point of the complaint seems to be that the defendants are not duly incorporated. There may be some aspects, however, under which the action, in part at least, may be thought to have been brought under section 1798. The attorney-general, either taking the latter view, or else, out of greater precaution, obtained leave of the court under section 1799.

So far as we see, it is not necessary to obtain leave to bring an action under section 1948. • The reason for the distinction is probably that the cases under that section are those of the exercise of, or intrusion into, offices or franchises, to which the party has no right, while the cases under section 1798 are, in general terms, those of an abuse of a franchise which the party possesses. But as some of the allegations of the complaint may be considered to charge the defendant, even assuming that it was legally incorporated, ' with a violation of law in certain of its acts, we may, for the purpose of this motion, treat this action as one in which it was necessary to apply for leave. Section 1799 provides that the court may, in its discretion, require such previous notice as it thinks proper. Previous notice is therefore in the discretion of the court, and we cannot say that the order was void for want thereof. Nor can we say that it is entirely beyond the power of the court, which granted leave, to revoke it. Yet it is evident, from the nature of the order granting leave to bring an action, that the case would be an extreme one in which the order should be set aside. It is not clear what would be the effect of setting aside such an order. As the action would have been properly commenced, would it not still continue, even though the order granting leave were set aside? After the action was pending and ready for trial, and perhaps after it had been tried, could the action be abated, or annulled, by a mere order setting aside the order which granted leave ? To illustrate: leave is granted to sue a receiver. The action is commenced and prosecuted to actual trial. Could the court then deprive the plaintiff of his labor by setting aside the order granting leave to sue ? Would not the action still be in existence even if that order were set aside? And would not the plaintiff be entitled to go on with the action thus lawfully commenced ? If the views thus suggested were correct it would be of no practical use to set aside the order, even if a proper case were made.

But there is a further consideration. It is plain that it would be improper to try the merits of this case on this appeal. A prompt disposition of the case may be very desirable for both sides. Yet to decide on the merits upon a mere appeal from a refusal to set aside the order granting leave to sue, is certainly improper. And while in many cases a party has a right to the exercise of the discretion of this appellate court, yet there are others in which the orderly conduct of actions would hardly permit a review. This action is commenced and the defendant has appeared. Assuming that there might be an extreme case where a complaint was on its face utterly without foundation, no one would say that the present was such a case after an examination of the papers. We do not wish to speak, in any detail, of the questions presented. Because we desire to avoid the least intimation of our opinion on the merits. We have not considered it necessary to form any opinion as to those merits. But it would be difficult to point out the importance of the questions which are raised without seeming to indicate an •opinion one way or the other thereon. The granting of leave to bring tbe action is not a decision in favor of tbe people. It is but an expression of the opinion of the court that enough has been shown to permit the attorney general, if he chooses, in his discretion, to bring the action. For it must be remembered that the question whether or not, in any case, an action shall be brought against one who intrudes into, or unlawfully abuses a franchise, etc., is not for the judiciary to detemine; but for the State through its attorney-general. No one but the State can complain of such unlawful intrusion or abuse of power. And in this respect the attorney-general represents the State. The responsibility rests upon him of deciding, as to each case, whether it is wise to take any action, whatever. And in this present case, as we have already seen, so far as the question is concerned whether the defendants are a corporation, the attorney-general seems to have a right to bring the action without leave.

It is urged with much force by the defendants that they have expended large amounts of money, and are ready to expend more in the construction of their road; and that the mere pendency of this action stops all work and alarms those who would otherwise invest money in the enterprise. But these are considerations "which should be addressed to the attorney-general. It might seem that if persons were willing to purchase land and build a 'railroad thereon, the State would have no reason to object To the enterprise, whether such persons had or had not, in due form, organized themselves into a corporation; that the interests of the State would be promoted by' everything which increased facility of travel and of transportation, and that the only opponents of the work would be the owners of rival lines. These, however, are questions of policy which are not for us to decide. . We mention them merely to indicate that on this appeal we do not pass on the merits of the case nor on the policy of bringing the action.

We only say that in our opinion we ought not to reverse the order refusing to set aside the order granting leave to sue.

Order affirmed, with ten dollars costs and printing disbursements.

Present —Learned, P. J., and Boardman, J.

Order affirmed, with ten dollars costs and printing disbursements.


author: Learned, P. J.

text:
    JOHN MARTIN, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Dependant.

      Negligence — the rate at which a train is-running, when erossing a highway in the country, may be considered by file jury in determining whether or not the railroad company has been guilty of negligence.

    Motion for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term, after a verdict rendered in favor of the plaintiff. The action was brought to recover damages for an injury sustained by the plaintiff by being struck by one of the defendant’s trains while crossing its lands upon a highway.
    The plaintiff and his companion Weaver were engaged in driving cows to pasture across the track upon a highway. The plaintiff went in front of the cattle, Weaver behind. He crossed a bridge over a creek and went up towards the railroad crossing. He testified that as .he went he looked both ways for the cars, and heard and saw nothing. There were bushes which there prevented a person from seeing up the track until he was on it. As he got in the middle of the track he looked up and down, and at once saw a train erossing from the west. He tried to turn round and keep the cows back, and he says that when struck he was facing toward Weaver, and that just before the time he was struck, he jumped back off the track. Weaver says about two-thirds of the cows (about thirty five in all) had crossed the track. Three were killed, and the plaintiff was injured by the train.
    The court at General Term, after holding that there was evidence which would justify the jury in finding that the plaintiff was free from all contributory negligence, and that the defendant was guilty of negligence in failing to sound the whistle when approaching the crossing, said : “ But another very important question relates to the speed of the train. There is evidence tending to show that it was running at a very high rate of spued. The court had charged that the defendants were bound to exercise care, and as they approached the crossing not to run at an unusual or dangerous rate of speed. The court said that the speed did not necessarily establish negligence, but left it for the jury to determine whether there was negligence.

      “ The defendant insists that a railroad company has a right to run its trains on its own land at.a high rate of speed.. Perhaps that is so. But this crossing was not its own land. It was land belonging to another, over which the public had a right of travel, and the railroad had also a right of passage. The defendant acknowledges that a high speed through a city or crowded locality is a circumstance bearing on the question of negligence, when insufficient notice is given. (Cordell v. N. Y. C. and H. JR. JR. R., 70 N. Y., 119; Salter v. JTtioa and B. JR.. JR. Go., 14 Week. Dig., 136.) But the defendant claims that it is only in a city or village-that this rule applies; that in the country a high speed at a crossing is not to be considered on the question of negligence. We do not think this correct. .The law is properly laid down in Oont. Imp. Oo.v. Stead (95 U. S. B., 161). Speaking of a crossing on a level the court say: c The train has the preference and right of way. But it is bound to give due . warning of its approach. * * * Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It cannot be such if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot, but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell.’ That is the principle which should be applied here. Where there is an excessive rate of speed, that may be considered by the jury, not perhaps as being in itself negligence, but as requiring at a crossing a warning which ' shall be available, and as tending to make the ordinary warning of no effect.

      “ This view of the law was stated by this court on the decision of the case of "Whitbeck: (decided January, 1880, not reported), and we refer to that opinion, and we understand the charge of the court to be this in substance, and in the language used by the court in the last cited case, “ a judge is not bound to charge upon assumed facts in the ypsissima verba of counsel, nor to give categorical answers to a juridical catechism based on such assumption. * * * "When he explains the whole law applicable to the case in hand * * * he cannot be called upon to express it in the categorical form based upon assumed facts, which counsel choose to present to him.”

      E. Oouni/ryman, for the plaintiff.

      Matthew Hale, for the defendant.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and Bookes, JJ.

Motion for new trial denied, and judgment ordered for plaintiff on verdict, with costs.


author: Boardman, J.;

text:
    JOHN PALMER, Respondent, v. THOMAS C. PLATT, as President of the United States Express Company, Appellant.
    Negligence— the rules applicable to the case of injuries caused by locomotives and railroad can's do not apply to those ca/used by moving a ti’uclc on a platform — when the mere gim/ng of a warning does not S'elieve the party from further responsibility.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action ' was tried.
    The plaintiff recovered damages for injuries caused by being hit by a truck drawn by an employe of the defendant on or near the platform of the Erie railway, at Owego, when he was waiting for the departure of a train.
    The court at General Term said: “ Two questions are presented for our consideration : First. Was adequate warning of the approach given by the employe; and, second. Was he drawing the truck so rapidly as to be dangerous.
    “ Disregarding the first question, which may be somewhat analogous to Culhane v. New York Ceni/ral and Hudson Rimer Railroad Corwpamy (60 N. Y., 137), and MoKeever v. New York Central and Hudson Rimer Railroad (MS., Ct. of Appeals, April 11, 1882; reported in Mem., 88 N. Y.,-), there was still enough evidence of reckless rapidity in the motion of the truck to carry the case to the jury.
    “ But upon neither point do we think the principles applicable to injuries caused by locomotives and railroad cars should control this case. The elements and sources of danger are very different. The power of control and of prevention are far greater in the case of a hand truck that may be moved in any direction and stopped at any moment. The impetus of great weight and momentum does not threaten danger. Besides the truck has no superior right to the platform. The traveler has, at least, an equal right. It is the duty of each to avoid the other.- As the truck may do injury to travelers if it hits them, it is a duty to. give warning of its approach that-room may be made for its passage. Those who hear and hoed the warning will get out of the way. But the giving of warning is not the only duty of him who draws the truck. He must move it carefully and.prudently upon the platform so as not needlessly to expose anyone to danger; and he should also be constantly upon the alert not to strike those who for any reason are not aware of their danger. One driving a carriage through a crowded road would not be excused for running over persons who did not hear his warning, while he could see their danger and avoid it by stopping or changing his course. So in this case it may not have been sufficiently careful and prudent for Rupple to have given his warning and then, as he says, stop for nobody and hit anybody that was in the way without any further thought or care on his part. Especially is that a subject for consideration where the warning and the danger occur on a crowded platform while running to and fro with haste and excitement of passengers getting on or off train, perhaps with steam escaping from locomotives, with bells ringing, horses and carriages coming and going. All travelers know that such experiences are common. It would not be prudent, then, to establish as a rule of law that baggage carts or express trucks might, be run over platforms, if adequate warning were giveu, and no responsibility arise from reckless or indifferent conduct in other respects.”

      Wm. G. De Witt, for the appellant.

      David tí. Dill, for the respondent.
   Opinion by

Boardman, J.;

Learned, P. J., and Bockes, J., concurred.

Judgment and order affirmed, with costs.


author: Per Gwriam.

text:
    MARY E. ELSON, Appellant, v. GEORGE MURRAY, Jr., and JOHN J. MURRAY, Respondents.

      Practice — appeal to the County Court — security upon — when a new surety wdX be required to execute the undertaking wltere the surety thereonhas with the appeUanfs knowledge sworn falsely as to his pecuniary responsibility.

    Appeal from an order of the County Court of Cortland county, directing the appellant to furnish a good surety on her undertaking upon an appeal to that court within a specified time, or that in default thereof her appeal should be dismissed. The motion to dismiss the appeal was made upon the ground “ of the insufficiency and irresponsibility, and insolvency of appellant’s surety.” •
    The court at General Term said: “ A judgment was recovered against the plaintiff for costs in a Justices’ Court, July 6, 1880. On the 9th day of July, 1880, she appealed to the County Court and gave her husband as security. He justified on that day before the county judge in the sum of $200, and the county judge approved the surety.

      “ It now appears by his testimony that at that time he was not worth a dollar, and that he knew he was not worth $200. It further appears that on the 14th day of May, 1880,' he had been examined in proceedings supplementary in the presence of his wife, the present plaintiff, and had testified that he had no property of any kind. These facts are not denied by her. On this proof the county judge dismissed the appeal, unless the appellant should file .an undertaking under section 3050, Code Civil Procedure. ‘
    “ This is not a case where a surety has become insolvent after signing the bond or undertaking. It is the case of a plain fraud on the court, effected by perjury. The plaintiff knew when the surety signed the undertaking that he had no property. Her attorney suggested to the surety that he should execute the undertaking. Thus, through her attorney, she procured the undertaking to be made. The surety knew that he was making a false affidavit, as he now says; and no one denies this.
    “ The court properly dismissed the appeal. In a case of such fraud the court was not required to give leave to file another undertaking. But that privilege was granted, and the plaintiff can avail herself thereof, if she chooses to do so.”

      0. Porter, for the appellant.

      F. Hatch, for the respondents.
   Opinion

Per Gwriam.

Present — Learned, P. J.; Boardman and Bocees, J J.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    In the Matter of THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, Respondent, v. ANDREW S. LE FEVRE and Others, Appellants.

      Saüroad company— taking of land for — how the owner’s damages, where his land is separated Iry a highway, are to he determined.

    Appeal from the appraisal and report of commissioners appointed to ascertain and determine the compensation to be made to the owners of property sought to be taken by the New York, West Shore and Buffalo Railway Company.
    The court at General Term said: “We have had occasion to examine recently the rules applicable to this class of cases, and do not think it necessary to discuss them now at any length.
    “ The present is not a case of two city lots, separated by a street and used independently of each other.

      “ It is the case of a dwelling-house with some ten acres of land adjacent and occupied in connection, through which a turnpike road runs, dividing the land into two parts. In this case, therefore, the owner of the land was entitled to have the damages to the whole property estimated, including that on the west side of the turnpike. The land should have been treated as a whole, and the injury to it as a whole should have been assessed. To give the owner damages only for the injury to the part east of the turnpike would afford no fair or reasonable compensation. And in refusing to consider the injury to the land as a whole, including that west of the turnpike, the assessor did injustice to the owner.”

      Alton B. Parker, for the appellants.

      F. I. Westbrook, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Bockes and BoARDMAN, JJ.

Order reversed and assessment set aside; new assessment ordered by new commissioners, to be appointed by Special Term, with costs1 to appellants.


text:
    In the Matter of the Estate of WILLIAM P. JOHNSON, Deceased.

      Appeal — none lies from, an expa/rte order of a surrogate.

    Appeal from an ex parte order made by the surrogate of Otsego county vacating a former ex parte order giving the appellant twenty-five additional days to serve a case and exceptions.
    The court at General Term said: “ The surrogate granted an ex pa/rte order giving an executor, who was the appellant from a decree, twenty-five days additional time to serve a case and exceptions. Afterwards, on the application of Nthe respondent and on a new affidavit, the surrogate ex parte vacated the former order. From that last order this appeal is brought, so, at least, it is stated in the points on both sides, although we cannot identify the order appealed from as that which is mentioned in the notice of appeal.
    “ It is the uniform rule that appeals do not lie from ex parte orders of the Special Term. The proper course is to move on notice to vacate an ex parte order. If the motion is refused an appeal may lie. But unless both parties have been heard by the court below -there is not such a decision between them as we should be ashed to review.
    “We do not see why that same rule should not apply to this case. Jlyslojj v. Powers (9 Paige, 322) is not in point.”

      F. G. Finds, for Mary JV Butler, appellant.

      Samuel A. Bowen, for Emma J. Darrow, Allen Bloomfield and others, respondents.

      Samuel S. Fdidc, for John D. Carey, respondent.

      Charles B. Olendorf, for Julia A. Johnson, respondent. ■

      A. C. Tenncmt, for Eloyd C. Shepard and others, respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and Bockes, JJ.

Appeal dismissed, without costs to either party.


author: Learned, P. J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. THE GLOBE MUTUAL INSURANCE COMPANY, Respondent.

      Insolvent insurance company — application by claimants for leave to intervene — when it should not be granted — the discretion exercised by the Special Term is renewable at Generad Term.

    Appeal by the attorney-general from an order made in the above-entitled action at the. Ulster Special Term, March 25,1882, allowing James 0. Wells and James 0. Mix, claimants against the fund in the hands of the receiver in the above-entitled action, to intervene by attorney, on behalf of themselves and all others similarly situated, and have notice of the proceedings in the action.
    The court at General Term said: “ The court below allowed two persons having claims against the defendant to intervene, and directed that all notices in the action or proceeding should be served upon their attorney. By the petition which their attorney presented on such application, no reason is shown why they should be allowed to appear beyond the facts of their having such claims, and their interest in prosecuting and collecting them. It is not necessary that they should intervene in order to establish their claim against the assets in the hands of the receiver. To secure such assets, and to protect and apply the same to their legitimate use, is the duty of the attorney-general and the receiver. But already the courts have allowed interveners to appear by eight or ten different attorneys. Such attorneys should be quite enough to watch the proceedings and protect the assets against fraud and waste.
    “In the case of the Attorney-General v. North America Life Insurance Company (77 N. Y., 297), it was held that the Supreme Court in its discretion had the right to allow persons interested in the fund to intervene. Since then, the desire to intervene for all causes and for no cause has become common, and the discretion of the court has been exercised in favor of such applications to the great prejudice of a due and prompt administration of the law. Each intervener has the right of appeal, and thereby may greatly delay proceedings. As a corollary to the right to intervene, they claim to be parties and to have their costs and counsel fees paid out of the assets. Already such allowances of large gross amounts as counsel fees have been allowed payable out of the assets, and if the Court of Appeals shall sanction such payments, the assets intended for and due to the creditors of defunct corporations will be distributed among the attorneys of such of them as shall be permitted to intervene, and the receivers and referees in the action.
    “ In the present case we think no reason exists, so far as the papers show, why these petitioners should be permitted to intervene. By the late case of the Attorney-General v. Continental Insurance Company (not reported), the Court of Appeals have decided that the Special Term must exercise its discretion in allowing intervention. Such discretion may be reviewed and reversed by the General Term on appeal. In the exercise of this power, we think the learned justice at Special Term erred in allowing this intervention.

      “ The order appealed from is therefore reversed, with ten dollars costs and printing disbursements against the petitioner, and motion to intervene denied.”

      Leslie W. Russell, attorney-general, for the people.

      Edward G. James, for the respondent.
   Opinion by

Learned, P. J.;

Bocees, J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


text:
    ARBA CAMPBELL and Others, Respondents, v. ALBERT THOMPSON and Others, Appellants.

      Sale of goods by commission merchants — the payment of the amount due for the commissions does not estop the consignor from recovering damages if the sale was wrongfully made in violation of his instructions.

    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.
    The action was brought to recover the damages claimed to have been occasioned by a sale of certain sheep skins consigned by the plaintiffs to the defendants, who were commission merchants in Boston. The plaintiffs claimed and the referee found that the sale was wrongfully made in violation of the terms of the contract upon which the skins were consigned.
    The court at General Term, after holding that the findings of the referee were sustained by the evidence, said: “ After the defendants had thus sold the plaintiffs’ goods there was a balance on the whole account in favor of the defendants against the plaintiffs for advances, over and above receipts, of $166.06. The defendants thereupon, in January, 1877, commenced an action in Massachusetts by attachment against the goods of the plaintiffs, and levied on such goods in Massachusetts. Thereupon the plaintiffs, wishing to obtain possession of their goods without appearing or defending, paid said sum, serving a written protest at the time of payment. The Massachusetts court had. jurisdiction to issue the process. The defendants now insist that this voluntary payment by plaintiffs estops them from setting up the claim made in this action.
    It is not necessary for us to hold that, as the payment in Massa- ' chusetts was made to relieve property taken under due process of law, it was in such a sense compulsory that the plaintiffs could recover back the money. (Bensen v. Monroe, 7 Cush., 125.) That is not the question here. The plaintiffs do not seek to recover back the money paid by them for commissions on the sale of their goods. They sue for a breach of contract in making the sales in question. The defendants’ suit was on the balance of an account, running from 1872, in which the plaintiffs were charged for cash advanced at sundry times for freights, for interest and for commissions; and were credited with the avails of sundry sales, including those in question. The defendants on this point must insist that the voluntary payment by the plaintiffs of this balance, when sued therefor, is an admission or adjudication that in making all the sales set forth in that account the defendants faithfully discharged their duty as commission merchants to the plaintiffs. The doctrine which the defendants rely upon is that of cases like Collins v. Bennett (46 N. Y., 490), which was that the recovery by one who was boarding a horse for such board is a bar to an action by the owner for injury ■ done to the horse by the man who was boarding him, on the ground that the judgment was an adjudication that the horse had been well cared for. So, in this case, the defendants urge that a recovery for or payment of (Blair v. Bartlett, 75 N.'Y., 150) the commissions is an adjudication that they had been earned by a faithful discharge of the factor’s duty, and therefore that it cannot now be alleged • that the factor did not faithfully discharge his duty.

      “ The case of Inslee v. Hampton (15 Sup. Ct. N. Y. [8 Hun], 230, and 18 Sup. Ct. N. Y. [11 Hun,] 156), seems to be in point and in favor of the plaintiffs on this question.

      Dunham v. Bower (77 N. Y., 76) holds that a recovery for freight is a bar to an action for damages for the loss of the property on the ground that the carrier did not start at the time agreed, and that by his delay the property perished. If the contract in the present case was, as found, to sell the skins ’at not less than twenty-five cents, then the contract was broken by the factors, and it is not plain how they could have commissions when they had not performed their contract. So that a payment of the commissions would seem to be inconsistent with the alleging of a breach of the contract.
    “ But there is a later authority, Schwinger v. Raymond (83 N. Y., 192). In that case it was held that where a carrier neglects to protect his cargo according to his contract, yet if he delivers the goods the owner may pay the freight and sue for the damages. So that when the carrier's contract is broken by a failure to protect the goods, payment of freight is no har to an action for damages. Where it is broken by a failure to start in time the rule is otherwise. If, then, the recovery of freight by the carrier is no bar to an action for his breach of contract in not protecting the goods, by analogy the recovery of commissions by the factor should be no bar to an action for liis breach of contract in selling at a price below his instructions.”

      Cephas Brainard and Rowland M. Hall, for the appellants.

      George Sidney Camp, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and Bockes, JJ.

Judgment affirmed, with costs.


text:
    In the Matter of the Accounting of Henry Livingston.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York, Plaintiff, v. The Mutual Endowment and Accident Association of Bath, N. Y., Defendant.
   Judgment for defendant to be settled by Bockes, J. Opinion by

Bockes, J., and by Learned. P. J., for dismissal.


author: Learned, P. J. Mem. by Boardman, J.

text:
    William D. Mead, Respondent, v. Patrick F. Shea, as Executor, etc., Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J. Mem. by Boardman, J.


author: Bockes, J., and Learned, P. J.;

text:
    The Town of Hancock, Appellant, v. Agnes Weiler and others, Respondents.
   Order denying application to examine Yan Wagenen and Sands, and vacating order for that purpose, affirmed. Order terminating examination of defendants reversed. No costs of either appeal. Opinion by

Bockes, J., and Learned, P. J.;

Boardman, J., dissenting.


author: Bockes, J.

text:
    Mary M. Bonnett, Administratrix, etc., Appellant, v. John M. Cole, Respondent.
   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by

Bockes, J.


text:
    Charles B. Miller, Appellant, v. Samuel Root, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Bockes, J., and by Learned, P. J., dissenting.


author: Bockes, J.;

text:
    Isaiah S. Matthews and others, Respondents, v. The President, etc., of the Delaware and Hudson Canal Company, Appellants.
   Judgment affirmed, with costs.' Opinion by

Bockes, J.;

Learned, P. J., not acting.


text:
    Mary J. Butler, Appellant, v. Allen Bloomfield and others, Respondents.
   Decree reversed so far as it affects Mary J. Butler, and petition dismissed as to her, with costs below and of this court against petitioners. Opinion by

Learned, P. J.;

Bockes, J., not acting.


text:
    William Gleason, Appellant, v. Calvin H. Bell, Respondent.
   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by

Boardman, J., and by Learned, P. J., dissenting.


author: Bookes, J.

text:
    F. May Teeter, Respondent, v. George D. Gilson, Appellant.
   Judgment affirmed, witli costs. Opinion by

Bookes, J.


text:
    Harvey Baker, Respondent, v. The Village of Oneonta, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


author: Boardman, J.

text:
    Tamer M. Duel, Respondent, v. Albert M. White and Charilla R. White, his wife, Appellants, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    The People of the State of New York, Respondents, v. Charles Schallowitz and another, Appellants.

   Judgment and conviction reversed. New trial ordered in Tompkins County Sessions. Opinion by

Bockes, J.


text:
    John P. Price, Respondent, v. Ann Eliza Prick, Appellant.
   Judgment modified by striking out “ and shall assume and be charged with the payment of the said, mortgage and all sums due and to grow due thereunder,” and, as modified, affirmed, with costs to plaintiff. Opinion by

Learned, P. J.


text:
    Isaac Horton and another, Appellants, v. Hatlow G. Borthwick, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    Seth Pope, Respondent, v. Crosby Gillen, Appellant.
   Judgment of County Court and of justice of the peace reversed, with costs. Opinion by

Bookes, J.


text:
    Hannah E. Hutchins, Appellant, v. Orrin B. Hutchins, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Boardman, J., and by Learned, P. J., dissenting.


text:
    N. Gillett Burdick, Respondent, v. Ira S. Crandall, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.


text:
    Arnold T. Niver, Respondent, v. Melville M. Crane, and Ellie M. Crane, Appellants.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Sarah Newton, as Administratrix, etc., Respondent, v. Samuel Rooney, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Nancy J. Thomas, Respondent, v. Roswell R. Kenyon, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.


text:
    The First National Bank of Whitehall, N. Y., Appellant, v. William A. Griswold, Respondent.
   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by

Bookes, J.


text:
    The First National Bank of Elmira v. John T. Rathbun.
   Motions for reargument denied. Opinion by

Boardman, J., and by Learned, P. J., dissenting.


text:
    In the Matter of Delos M. Powers.
   Application denied. Mem. by

Learned, P. J.


text:
    Isaac Plumb, as Executor, etc., Plaintiff, v. Morris C. Thompson and others, Defendant, Impleaded with Loren Doing, Special Guardian, Appellant.
   Order reversed and report of referee confirmed, with ten dollars costs and' printing disbursements against respondent (Stephen Holden, executor, etc., defendant). Opinion by

Boardman, J.


text:
    Joel Gillett, Respondent, v. Chapman Van Denburgh, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion’ by

Learned, P. J., and by Bocees, J*., dissenting.


text:
    Wilson Ayers, Appellant, v. Jacob L. Everett, Respondent.
   Order reversed, with ten dollars costs and printing disbursements, and motion denied without costs. Opinion by

Bookes, J.


text:
    Moses Smith, as Administrator, etc., Appellant, v. Sarah E. Wild and others, Respondents.
   Decree affirmed, with costs against appellant. Opinion by

Boardman, J.


text:
    Jacob Albright, Respondent, v. Mott J. Robertson, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Bookes, J. Boardman, J., not acting.


author: Landon, J.

text:
    The People of the State of New York, Plaintiff, v. Merchants’ Bank, Defendant.
   Order affirmed, with ten dollars costs and printing disbursements, on opinion of

Landon, J.


text:
    William Youmans, Respondent, v. James A. Francisco, Appellant.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Sylvester Risley, Respondent, v. Ira Abbey, Appellant.
   Judgment reversed, néw trial granted, referee discharged, costs to abide event. Opinion by

Bookes, J.


text:
    Harry Mandeville, Respondent, v. William S. Wedge and Daniel Grant, Appellants.
   Judgment of county court affirmed, with costs. Opinion by

Learned, P. J.


text:
    Lizzie C. Burnap, Respondent, v. The National Bank of Potsdam, Appellant.
   Judgment affirmed, with costs.


text:
    Helen A. Brooks, Appellant, v. William U. Owen and others Respondents.
   Judgment reversed, new trial granted, costs to abide event; on authority cf Mead v. Stratton.


text:
    The People of the State of New York ex rel. John H. Myers, Respondent, v. Frederick Storm, Appellant.
   Motion for leave to gc to Court of Appeals granted and cause certified.


text:
    The People of the State of New York ex rel. John Swinburne, Respondent, v. Michael N. Nolan, Appellant.
   Order denying

' application to make eomplaint more definite affirmed, with ten dollars costs and printing disbursements.


text:
    Same v. Same.
   Order staying proceedings, etc., reversed, with ten dollars costs3 and printing disbursements, with leave to defendant to. answer in six days on stipulation to take short notice of trial for next Albany Circuit.


text:
    David P. McKee, as Administrator, etc., Appellant, v. William Bennett and another, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Richard McMichael, Respondent, v. Chauncey Kilmer, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.

Bocices, J., taking no part.


text:
    William McMillan and Morrison McMillan, Respondents, v. George A. McMillan, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Patrick Masterson, Respondent, v. Francis J. Masterson (Defendant) and George and Lewis Schwartz, Judgment Creditors, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York ex rel. The Board of Supervisors of the County of Ulster, Respondents, v. Cornelius A. J. Hardenburgh, as Supervisor of the Town of Shawangunk, Appellant.
   Order affirmed, with ten dollars costs

• and printing disbursements.


text:
    Burton G. Morse v. Jansen Hasbrouck and others.
   Order reversed, with ten dollars costs and printing disbursements. ' Mem. by

Learned, P. J.


text:
    In the Matter of Henry Livingston.
   Motion to amend notice of appeal denied, with ten dollars costs.


text:
    William Shutter, Appellant, v. Walter E. Ward, Respondent.
   Motion to dismiss appeal denied, with ten dollars costs.


text:
    Alida F. Flint, Appellant, v. Calvin H. Bell and others, Respondents.
   Motion for reargument denied.


text:
    Edward H. Neary, Appellant, v. George Robinson and others, Superintendents, etc., Respondents.
   Motion granted and cause certified to Court of Appeals.


text:
    Edward H. G. Clark, as Receiver, etc., Appellant, v. Franklin J. Parmenter, Respondent.
   Orders affirmed, with ten dollars costs and printing disbursements.

Westbrook, J., not acting.


author: Learned, P. J., not acting.

text:
    The People of the State of New York ex rel. The Hartford Life and Annuity Insurance Company, Appellants, v. Charles G. Fairman, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.

Learned, P. J., not acting.


text:
    James Robertson, Respondent, v. Edward S. Bink, Appellant.
   Motion denied, with ten dollars costs.


text:
    Paul Cushman, Trustee, etc., v. Mary A. Trimble, Respondent. Charles E. Leland and others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements.

Bockes, J., not acting.


text:
    David Craig v. Town of Andes.
   Motion to be allowed to intervene, etc., denied, with ten dollars costs.


text:
    Celina Gibson, Respondent, v. Louis U. Archambault, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Malcolm Calhoun v. The Delhi and Middletown Railroad Company.
   Order denying leave to file bond reversed,- with ten dollars costs and printing disbursements and leave granted.


text:
    In the Matter of the Attorney General, etc., v. The North America Life Insurance Company.
   Order denying motion by policyholders to be allowed, etc., affirmed, with ten dollars costs and printing disbursements.


text:
    Albert E. Wooster, Appellant, v. Peter Shoemaker, Respondent.
   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    Melville M. Crane and Abigail Crane, as Administrators, etc., Respondents, v. George Crane, Appellant.
   Judgment affirmed, with costs.


text:
    The Rensselaer and Saratoga Railroad Company, Plaintiff, v. The President, etc., of the Delaware and Hudson Canal Company, Defendant.
   J ndgment ordered for plaintiff on case submitted. Mem. by

Learned, P. J.


text:
    George King, Respondent, v. Peter White, Appellant.
   Judgment affirmed, with costs.


text:
    Norman Porter, Appellant, v. John Beale, Respondent.
   Judgment affirmed, with costs.


text:
    Porter C. Kingsburg and George Daniels, Appellants, v. George W. Earle and William S. Earle, Respondents.
   Motion for leave to go to the Court of Appeals denied.


text:
    Amos D. Fuller, Respondent, v. Tunis V. Collins, Appellant.
   Judgment and order affirmed with costs.


text:
    Richard Van Vranken, Respondent, v. Robert Calderwood, Appellant.
   Judgment of County Court reversed, and of justice also, with costs.


text:
    Sarah E. House, Respondent, v. National Bank of Cohoes, Appellant.
   Order denying motion to dismiss opened, and motion to dismiss appeal .granted, unless appellant pay ten dollars costs ; in which case, case goes over the term.


text:
    The Town of Thompson, Appellant, v. William Norris, Respondent.
   Motion to continue injunction pending appeal, denied.


text:
    In the Matter of proving Will of Ambrose Higgins.
   Motion denied.


text:
    Teunis P. Osterhout, Respondent, v. Thomas Hyland and others, Appellants. Same v. Owen Trodden and others, Appellants. Same v. Cornelius Brackett and others, Appellants.
   Motions granted and causes sent to the Court of Appeals.


author: Dykman, J.: Cullen, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN D. NEGUS, Respondent, v. WILLIAM DWYER, Appellant.

      Aldermen — when they act as officers of the eity in exercising a special statutory power conferred upon the mayor and common council — Laws 1874, chap. 585 — When the Supreme Court may punish a violation of an injunction order granted by a county judge.

    The legislature, by chapter 585 of 1874, created and provided for the construction of an elevated railroad on designated streets in the city of Brooklyn, “or on such streets and avenues as may be named by the mayor and common council of the city of Brooklyn as being more suitable for carrying out the objects contemplated in the erection of said elevated railway.”. On December 6, 1881, at a regular meeting of the common council, a resolution was adopted naming certain streets and avenues upon which the railway might be constructed. The resolution was sent to the mayor, who vetoed it and returned it to the common council- on December seventeenth. Upon .that day the relator commenced an action, in the Supreme Court, against the city, the Elevated Railway and its receivers, to restrain the common council from pass • ing the resolution over the mayor’s veto; and a preliminary injunction was obtained and served, with the other necessary papers, upon the mayor and each of the aldermen of the city. Thereafter, and while this injunction was still in force, seventeen of the aldermen, at a meeting of the common council, voted in favor of the resolution and passed it over the veto.

      Held, that in so doing they were acting not as agents of the State, but as the officers and servants of the city.
    • That they were bound by the injunction granted in the action brought against the city.
    That the fact that the order granting the preliminary injunction was made by the county judge did not prevent the Supreme Court from punishing the aldermen for a contempt in violating1 it.
    Appeal from an order made at a Special Term adjudging the appellant guilty of misconduct and contempt in violating an injunction, and ordering him to be imprisoned in the county jail for thirty days and to pay a fine of $250.
    The Brooklyn Elevated Railway Company was chartered by chapter 585 of 1874 for the purpose of constructing and operating an elevated railroad from the Brooklyn end of the East river bridge to Woodhaven, in Queens county. The charter designated the route through certain streets and avenues of the city of Brooklyn where the road should be built, being a single line of road, and at the end of the description added “ or on such streets and avenues as may be named by the mayor and common council of the city of Brooklyn as being more suitable for . carrying out the objects contemplated in the erection of said elevated railway.”
    On the 6th day of December, 1881, on application of the company, the common council adopted a resolution naming other streets and avenues as being more suitable for the carrying out of thé objects contemplated.
    On the adoption of the said resolution the same was, on the seventh1 of December, sent to the mayor for his approval, but the mayor returned the same on the seventeenth of December to the common council disapproved by him with a message stating the grounds of his disapproval. Thereupon the relator claiming that the common council intended and threatened, in virtue of their authority as the legislative power in the city and in pursuance of the city charter, to pass the said resolution over the mayor’s objections, commenced an action against the city of Brooklyn, the Brooklyn Elevated Railway Company and its receivers to restrain them, among other things, from passing the resolution or from acting thereunder.
    At the commencement of the action an order was obtained from the county jitdge of Kings county requiring the defendants to show cause on the 28th of December, 1881, at a Special Term of the. Supreme Court, why such injunction should not be granted, and until the hearing and decision of said motion enjoining the city of Brooklyn and the common council, and each and every member thereof, from voting, acting upon, or considering in any form or manner, or passing, any resolution, altering or changing the route of the Brooklyn Elevated Railway from that designated' in the charter, or from voting or doing any act to override the veto or disapproval by the mayor of the resolution aforesaid.
    The summons, complaint and injunction order were served oh the mayor and each individual alderman on the 27th of December, 1881.
    The motion to continue the injunction was argued on the 28th of December, 1881, the aldermen appearing by counsel and the decision being reserved.
    After service of the injunction on the twenty-seventh the board of aldermen, being the common council, adjourned from day to day until the thirty-first of December, on which day they met and after some delay they took the resolution in question from the table, and under the previous question passed and adopted the same notwithstanding the objection of the mayor. The defendants in these proceedings, seventeeri in number, voting in the affirmative. They were attached for contempt in willfully disobeying the order of injunction, and severally adjudged to be in contempt as charged and ordered to be punished by fine and imprisonment.

      Herbert G. Hull, for the relator.

      Winchester Britton, for the appellant.

       Decided May, 18^2, together with sixteen other similar cases.

   Dykman, J.:

- This procedure is instituted for the punishment of the defendant and others for a criminal contempt manifested by disobedience to an injunction order.

The questions for determination came in this wise: A charter was made by the legislature of the State for the construction of an elevated railway on designated streets in the city of Brooklyn, or on such streets and avenues as should be named by the mayor and common council of the city of Brooklyn, as being more suitable for carrying out the objects contemplated in the erection of the railway.

On the 6th day of December, 1881, in regular session, the aider-men made and adopted a resolution marking out and naming certain streets and avenues on which the superstructure might be placed. Such resolution was, in the orderly course of municipal procedure, forwarded to the mayor of the city for approval, and returned by him with his disapprobation accompanied by a veto message.

Thereupon an action was commenced in the Supreme Court against the city of Brooklyn and the Brooklyn Elevated Railway Company, with the purpose of restraining the common council from any action to override the veto of the mayor. In this action a preliminary injunction was obtained from the county judge of Kings county enjoining the common council and its members from voting or doing any act to override or disapprove the mayor’s veto. The papers in the action with this injunction order were served on the mayor and each of the aldermen of the city on the 27th day of December, 1881. On the 31st day of December, 1881, the common council voted on the resolution and passed it notwithstanding the veto and the injunction. The defendant and sixteen other aider-men voted in favor of the resolution and were all attached for contempt therefor. The contempt was found against them and punishment was imposed, and from that judgment we have this appeal.

It is attempted to excuse the conduct of the defendant and his companions in defiance of the injunction order by the theory that the delegation of power by the legislature to the mayor and common council constituted them agents of the State, and not of the city. That the acts of the appellants were neither municipal nor aldermanic; and as they were hot made parties to the injunction suit they cannot be affected by orders made therein.

There would be force in this claim if the city had no interest in the performance of the duties'imposed on the common council, and could derive no benefit from right action of that body, and no injury from misfeasance, and no connection existed between the powers so bestowed and their duties as agents of the city.

But it is not so. The power is laid on the common council, a body composed of the .aldermen of the city, and invested with the legislative power of the corporation, so that the depositary of the power is the legislative body of the city of Brooklyn, and it has no other function. The powe - conferred on the common council is granted to the corporation. The exercise of its office under this law is in direct alignment with its duties as an agent of the corporation. Nay, more, the public have a direct interest in the exercise of the functions imparted to this body, as they have relation to the public streets of the city. The city will have corporate injury or benefit as the duties are performed ill or well. The duties relate to the exercise of corporate power possessed over the public streets.

These considerations give clear indication that the appellants, under the law alluded to, acted as the servants and agents of the corporation, and that the maxim res/ ondeat superior would have application between them.

Besides all this, the veto of the mayor could be nullified and superseded only by the board of aldermen. State agents with power to locate a railway have no such prerogative. The charter of the city is that if the mayor return an ordinance with objections, the board shall proceed to reconsider the same, and if twotliirds of all the members elected shall then agree to páss the same, it shall take effect as a law. Here, then, the act is one which -only aldermen in board assembled could perform, and precisely that was forbidden by the injunction order.

It follows, therefore, that the aldermen cannot obtain exculpation on this plea. As they acted as aldermen, they are amenable to an injunction order in an action against the city.

Another objection is that the injunction order was not the lawful mandate of the court, because it was signed by a county judge. The Code is that an injunction order may be granted by the court in which the action is brought, or by a judge thereof or by a county judge; and where it is granted by a judge it may be enforced as the order of the court. The county judge had power, therefore, to sit in judgment on the facts presented to him; and the complaint, which is verified, and the affidavits accompanying the same, brought to him a case justifying the interposition of the court in restraint of tlie anticipated action of the aldermen. This gave him jurisdiction, and his determination was not void, even though on appeal it might have been held improvident or irregular. As it stood unreversed it was a lawful mandate.

On the merits there is no defense. The restraining order, with all the papers on which, it was founded, was served personally on the aldermen, and they proceeded to its violation with deliberate intent. The act of disobedience is without a circumstance of palliation. They well knew the action interdicted by the order, and yet they performed it in disregard of the command, without any claim at that time of illegality or invalidity. The contempt seems to have been perpetrated with head-strong intention and premeditated design. We find no avenue of escape for the appellants. The process of the court must be vindicated; and for that purpose the punishment awarded is neither inordinate nor disproportionate, and no part of it should, be interscinded.

The order should be affirmed, with costs and disbursements.

Cullen, J.:

I concur in the affirmance of the orders appealed from on the ground that the appellants assumed to act with reference to the subject-matter of the injunction in the capacity of corporate agents. The act, for the commission of which they are punished, had all the form and characteristics of a corporate act. I do not think that the appellants are relieved from contempt, even if it be field that they erred in their conception of the duty imposed upon them by the legislature in regard to this railroad.

It is conceded that the injunction forbade their action as city agents in regard to the application. If thereafter they did attempt to act as city agents it is no answer to the charge of contempt to say that the áppellants, to have given legal effect to their action, should have acted in a different capacity, and that in such capacity the injunction would not have bound them.

The question is not how they might have acted, but in what capacity they did act. Therefore the test is, was the act of the appellants in such form and manner that had a corporate act been necessary to give effect to their resolution their action would have been valid. Undoubtedly it was such,

. Judged by this test I think the defendants violated the injunction.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Order convicting Dwyer of contempt affirmed, with costs and disbursements.


author: Baenaed, P. J.:

text:
    JAMES H. BENNETT and COROLLA H. CRISWELL, Appellants, v. ANDREW R. CULVER, Respondent.

      Deed — when the right of possession remains m the grantor until the conditions thereof are fulfilled.

    The plaintiff’s father conveyed certain real estate to a Cemetery Association in consideration of ten dollars and its agreement to pay to him, his heirs or assigns, the sum of forty dollars for each lot of 400 square feet of land, and in proportion for a larger or smaller lot, which the association should dispose of as a place of burial, and three dollars for every grave opened, until all the land should be sold for cemetery purposes only, the grantor, his heirs and assigns, being entitled to the grass, ryood and other produce of the soil of all parts of the land which might remain unsold until all such land should be sold and have interments therein. In case of the non-fulfillment by the Cemetery Association of any of the premises the right of soil to all lots in which no interments had been made was to revert to the grantor, his heirs and assigns.

      Held, that under the deed the grantor and his heirs were entitled to the possession of theland until the same was sold and interments were actually made therein, and that ejectment might be brought by him or them to recover the possession thereof from a person claiming to hold the same as a purchaser at a sale had under an execution issued upon judgments recovered against the Cemetery Association.

      Woodworth v. Payne (74 3ST. Y., 196); Pierce v. Keator (70 id., 419) distinguished.
    Appeal from a judgment dismissing tlie complaint, entered upon the trial of this action by the court without a jury.
    The action was brought to recover the possession of certain premises formerly belonging to the plaintiffs’ father, James A. Bennett, and which had been by him conveyed to the Washington Cemetery Association.
    The deed provided, among other things, that “ the said party of the first part, for and in consideration of the sum of ten dollars (and the premises hereinafter stated), * * * has granted, bargained, sold, aliened, remised, released, conveyed and confirmed.

      and by these presents does grant, bargain, sell, alien, remise, release, convey and confirm unto the- said party of the second part and assigns forever all that certain, etc.” * * * “ Now, the premises above referred to, which are to be deemed part of the consideration to be paid by the party of the second part to the party of the first part, are as follows: That the said party of the second part shall well and truly pay in lawful money of the United States, half yearly from the date of this 'conveyance, to the party of the first part or his assigns during his lifetime, or to his attorney or agent, assigns, or to his heir or heirs, legatees, executors or administrators after his decease, the sum of forty dollars for each and every lot of four hundred square feet of land, and in proportion for a larger or smaller lot, which the said party of the second part shall dispose of in any manner whatsoever as a place or places for the birrial of the dead, and three dollars for each and every grave opening, until all the land described in this deed, or such part of it as may remain after the satisfaction of an existing mortgage thereon, shall be sold for cemetery purposes only; and the said party of the first part, his assigns, heirs or legatees, shall be entitled to the grass, wood, timber and other produce of the soil of all parts of said land which may remain unsold, in conformity to the conditions of this deed, until all such land shall be sold in lots as aforesaid and have interments therein. .* * * And it is further agreed that in case of the non-fulfillment by the party of the second part of any of the premises on which this conveyance is given, the right of soil of all lots without interments shall revert to the party of the first part, his heirs, assigns, executors, administrators or legatees, but which reversion shall not prejudice the right of the cemetery or corporation -to sell said land in a just and honorable manner, in conformity to said premises, according to the true intent of this conveyance, * * * to have and to hold the above granted, bargained and described premises with the appurtenances unto the said party of the second part amjl assigns forever in conformity to the premises hereinbefore stated.”
    The premises were subsequently sold to the defendant under execution issued upon judgments recovered against the Cemetery Association. He was put into possession by the sheriff. Thereafter the plaintiffs brought this action of ejectment.

      Morris & Pearsall, for the appellants.

      John II. Bergen, for the respondent.
   Baenaed, P. J.:

The deed or writing between James A. Bennett, plaintiffs’ father, and the Washington Cemetery did not take the lands in question from Bennett subject to a condition subsequent. Bennett did not thereby part either with the title or with the possession absolutely’. By the fair meaning of the instrument the Cemetery Association had the right to sell “for cemetery purposes only” the lands described in the paper. Until actual sale for such purpose, and until the payment of forty dollars for every lot of 400 square feet .so sold, and until actual interments were made, the grantor was entitled to possession of the land.

The grant is “ in conformity to the premises,” which are as above stated. The case, it seems to- me, does not, therefore, fall within Woodward v. Payne (74 N. Y., 196). There the title had absolutely passed but was subject to a reverter if free seats were not kept in a church. The Court of Appeals held«that a creditor of the church took by execution sale the right' to the land subject to keeping free seats in the church on the land. It was supposed that the purchaser would hire the land to a church with this condition. In this case the creditor claims to take land from the possession of the plaintiff, which he has the right to retain not only until it is sold for cemetery purposes, but until actual interments are made therein.

The case is not similar to Pierce v. Keator (70 N. Y., 419). There land- was sold to a railroad company. The grantor reserved the privilege of cutting the grass on the land unused by the track. The land when sold was subject to a mortgage. At the mortgage sale the railroad strip was reserved. It was held that the privilege reserved by the grantor did not go to the purchaser at the foreclosure sale.

The constitutional provision against fines, quarter sales and like restrictions upon alienation has no relevancy. The plaintiff has an estate in the lands which never passed tb the Cemetery Association. The Cemetery Association could not sell it except for a specific purpose, and could not get possession until that purpose was fixed and certain, by actual interment. Then our statute would perpetuate the use. The subsequent sale of the plot-is forbidden. (Chap. 419, Daws 1871.) From the facts proven-in the case upon the trial the Cemetery Association could not sell the land for other than cemetery purposes. A creditor can get by execution sale no greater right than the cemetery corporation had. The plaintiffs are entitled to the possession of the land until the land is sold for purposes of interment, and until actual interment and until payment of the price at the rate specified in the writing between plaintiff’s ancestor and the Cemetery Association.

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

Dykman, J., concurred; Cullen, J., not^sitting.

Judgment reversed and new trial granted, costs to abide event.


author: Barnard, P. J.:

text:
    PATRICK J. WHELAN, Respondent, v. THE ANSONIA CLOCK COMPANY, Appellant.

      Contract for services — when the relation of master, and servant exists — when the latter may recover for work perfwmed on articles destroyed without his fault.

    The plaintiff was employed by the defendant to finish clock cases belonging to it. The work was to be performed upon the defendant’s premises, and was to be inspected and accepted before being paid for. Neither the time during which the agreement was to run nor the amount of work to be performed under it was fixed. While the work was in its usual condition, some cases being finished, but not accepted, and some unfinished, the premises and the clock cases therein were destroyed by fire, without any fault of the plaintiff. Held, that the relation existing between the plaintiff and defendant was that of master and servant; and that the plaintiff was entitled to recover the value of the work he had performed upon the-clock cases destroyed by the fire.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of the justice before whom the action was tried.

      The plaintiff had made an agreement with the defendant to varnish clock cases for it at a certain fixed price for each case varnished, the price varying according to the style of case. This work was done in rooms in the defendant’s factory, upon clock cases furnished by defendant, but by men employed by the plaintiff on his own account. The work to be done by plaintiff was to be examined by defendant and pronounced to have been satisfactorily done before it was to be accepted or paid for.
    In November, 1880, defendant’s factory was entirely destroyed by fire.
    This suit was brought to recover the sum of' $2,479.55 for work alleged to have been done under this contract, but which was destroyed by the fire.

      Marshall P. Stafford, for the appellant.

      A. II. Dailey, for the respondent.
   Barnard, P. J.:

The title to the property upon which the plaintiff performed the labor he claims to recover for was always in the defendant. The cases were furnished to plaintiff to varnish at certain fixed prices. The work was done upon the defendant’s premises. The work was to be inspected and accepted before payment. While the work was in its usual condition, some finished and unaccepted and some unfinished, the premises burned down without any fault of plaintiff. The contract between plaintiff and defendant had no fixed time to run, and required no definite amount of work to be completed under it. Either party could terminate it at will. The cases are conflicting. The distinction between master and servant and independent contractors is sometimes very uncertain. An examination of the cases leads me to the conclusion in this ease that the relation of master and servant existed; that the servant’s compensation depended upon his completion of the work, but if the thing upon which the work is to be done is destroyed before completion, and while it is in defendant’s possession, such destruction excuses further performance and the plaintiff is entitled to recover for the proportionate value of the work done. The payment by the piece was only a mode of determining the price of the servant’s wages. .The servant was ready to perform, but it was upon the condition that the defendant should furnish work and the place in which to perform it. He should not be deprived of the value of his work, under the circumstances of this case, because the premises were destroyed by fire, including the unfinished work.

Judgment affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. C. OTTO, C. MULLER and Others, Appellants, v. THE BOARD OF ASSESSORS OF THE CITY OF BROOKLYN, Respondents.

      Taxation — exemption of the property of a benevolent society from — when it does not extend, to buildings erected by its lessees — when such buildings a/re properly assessed as real estate.

    An act. relating to the Brooklyn Benevolent Society provided that the real and personal estate -which it should hold by virtue of its act of incorporation should be and remain free and exempt from all taxation, except assessments imposed for local improvements, so long as its revenues should be disposed of in accordance with the provisions of the act. Thereafter the society gave leases of certain of the real estate, which it was authorized by its charter to take and hold, for the term of twenty-one years, its lessees being required to erect buildings upon the land and pay a stipulated rent, and all ordinary taxes which might be imposed on the premises. The lease provided for a renewal thereof upon the expiration of the term, and for a further renewal unless the lessors should take and pay for the buildings at their appraised value.

      Held, that the buildings erected in pursuance of the lease were subject to taxation, and were properly assessed to the lessees as real estate.
    Appeal from an order made at a Special Term affirming, upon the return to a writ of certiorcvri, the action of the board of assessors of the city of Brooklyn authorizing a tax upon the property of the relators.
    In 1845, Cornelius Heeney and others were organized as a body corporate under the name of “ The Trustees and Associates of the Brooklyn Benevolent Society,” by chapter 169 of the Laws of that year. By the second section of the act, the corporation was authorized to “ take, and hold, by deed of gift, from Cornelius Iieeney, the present owner thereof, the parcels of land in the city of Brooklyn, lying between Hicks, Columbia, Congress and Amity streets,” and, also, to “ take and hold anjr further real and personal estate that said Cornelius Heeney may convey to it gratuitously, or may bequeath or devise to it by his last will and testament.” The third section provides that the rents, issues and income of the said estate shall be expended for the benefit of the poor, and poor orphan children residing in Brooklyn.
    In 1846 (by chap. 330, Laws of 1846), the legislature enacted that “ the real and personal estate which the trustees and associates of the Brooklyn Benevolent Society shall hold by their act of incorporation, shall be and remain free and exempt from all taxation whatsoever, so long as the revenues thereof shall be disposed of according to the directions of said act; but such exemption shall not extend to assessments laid upon said real estate for purposes of local improvement.”
    In 1848 the said corporation became the owner of and entitled, in fee, to the land indicated in the incorporating act, and known as the Heeney estate. The land was then vacant. Soon after this, leases of portions of this estate were made to various persons, for a term of eighteen years. They contained a provision that a certain amount of rent should be paid for each lot. It was covenanted in them that the lessees should pay “ all such ordinary taxes as may be imposed or grow due, or payable out of,- or for, or by reason of ’the said demised premises, or any part or parcel thereof.” It was fui’ther covenanted that the lessees should build on their respective lots, good and substantial three-story houses, and keep them in repair. It was also covenanted by the incorporation that at the end of the first'term, if the covenants of the leases had been properly performed, new leases for twenty-one years should be granted to the parties of the second part, their executors, administrators or assigns, which second leases should contain covenants that at their expiration the party of the first part should pay to the parties of the second, the just and true value of the buildings erected on the respective lots, to be ascertained 'in the manner pointed out in the leases, or grant said parties of the second part a third lease containing the same covenants as the second lease.

      The relators are owners of buildings which were put upon lots thus leased by the corporation in question. In 1881, the buildings of the relators in question were put upon the assessment-roll by the assessors as taxable property.
    It is sought, in this proceeding, to review the action of the assessors in placing the said property on the assessment-roll.

      Thomas H. Rodman, for the appellants.

      John A. Taylor, for the respondents.
   Barnard, P. J.:

By chapter 330 of Laws of 1846 the real and personal estate of the Brooklyn Benevolent Society, held under the act incorporating the society, was declared to be exempt from taxation except for local improvements. The society leased certain lots of its land to the relators upon leases for twenty-one years. The relators were bound to build buildings. At the end of the term the society could either pay the value of the buildings so erected or grant a new .léase of twenty-one years, and so on. The relators could retain the buildings until they were paid for or have renewals of leases perpetually in terms of twenty-one years.

Por the purposes of assessment, land includes structures upon land as separable from the ownership of the fee.

The right to erect structures and to keep possession of them makes the structures land, and taxable as such, whomsoever owns the fee. (People v. Cassity, 46 N. Y., 46; Smith v. The Mayor, 68 id., 552; The People ex rel. Van Nest v. Commissioners of Taxes, etc., 80 id., 573; The People ex rel. N. Y. Elevated R. R. Co. v. Same, 82 id., 459.)

The relators were therefore properly assessed, and the proceedings of the commissioners should be affirmed, with costs.

Dykman, J., concurred; Cullen, J., not sitting.

Judgment affirming proceedings of assessors affirmed, with costs.


text:
    THOMAS H. STRINGHAM, Respondent, v. CORNELIA M. STEWART, Appellant.

      Mastw' and servant— duty of the master to furnish safe and proper machin&'y — Jie is not liable for injuries occasioned by the negligence of a fellow servant.

    The defendant, wlxo owned and worked a large farm, provided 'an elevator which raised a car, holding about a ton of grain, by means of a steam engine situated in au adjoining building. The engineer was enabled to stop the elevator as it reached the different stories of the building by means of marks placed upon the belt. The car was run from the elevator upon a tramway laid upon the different stories of the building. There were only six or eight inches between the top of the elevator and the pulley-block when the platform of the elevator was on a level with the upper floor.
    Upon the occasion of the accident the elevator, which it was intended to raise to the upper floor, stopped, for some unexplained reason, before reaching it; it then started again, and .was carried six- or eight inches too high, whereby the rope was broken and the elevator was precipitated to the bottom of the building, severely injuring the plaintiff.

      Meld, that the accident was occasioned by the negligence of a fellow servant, and that the defendant was not liable for the damages thereby occasioned to the plaintiff.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Winchester Britton, for the appellant.

      A. II. Dailey and Charles C. Smith, for the respondent.
   Barnard, P. J.:

The only question in this case is whether a master is hound in furnishing machinery to provide against the neglect and inattention of the employes who operate it.

The plaintiff was a servant of the defendant upon her farm in Queens county. The farm is very large, and in order to elevate the grain into the storage building there was provided an elevator which lifted up a car with about a ton weight of 'grain by means of a steam engine in a building near to the storehouse. The engineer in charge was enabled by marks upon the belt to stop the elevator at the proper floor. There were only six or eight inches between the top of the elevator and the pulley-block at the upper story when the elevator was even with the floor.' The’car was run from the elevator upon a tramway to the ends of the storehouse. Upon the occasion of the accident the elevator was intended to deposit the car at the upper story. For some unexplained, reason the elevator stopped short of the elevation needed. It then started again and the elevator was carried the six or eight inches too high and the rope broke and precipitated the elevator to the bottom of the building and injured the plaintiff severely. The cause of the accident was solely occasioned by the failure to stop the engine at the proper mark upon the belting, and thus arises the question whether the plaintiff was bound to allow more than six or eight inches for a possible neglect. It does not seem that such a principle has been established. As between master and servant the master is to furnish good and suitable machinery. (Cone v. Del., L. and W. R. R. Co., 81 N. Y., 206.) The servant takes the risk of the machinery if the defects are known to him, or should be known to a person of ordinary intelligence in his situation in reference to the machinery. (Wright v. N. Y. Central R. R., 25 N. Y., 562; Gibson v. Erie R. R. Co., 63 N. Y., 449.) When the machinery is defective no action lies by the servant against the master when the injury was occasioned, not by the defect of the same, but by the negligence of a coemploye of the servant. (Wright v. N. Y. Central R. R., 25 N. Y., 562.)

The master is not bound to furnish the best and safest known appliances for the purpose, but may use his own judgment provided the means used are safe.

The sole occasion of the accident was the negligence of the engineer in not stopping the elevator. Against such negligence there can be no provision. As well continue the application of the power for feet as inches. The rope could not resist the steam engine, and was not intended to do so. The contrivance was sufficient, if properly managed, and for this neglect the defendant was not liable.

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

Dykman, J., concurred; Cullen, J., not sitting.

- Judgment reversed and new trial granted, costs to abide event.


text:
    In the Matter of JOHN J. LEARY.

      Court mondial — jurisdiction of— when it must consist of three officers.

      A court martial consisting of one officer has no jurisdiction to try a person accused of disobedience of- orders. Such a-charge can only be tried by a court consisting of three officers.
    A court consisting of one officer cannot acquire jurisdiction to try one accused of such offense by reason of his failure to plead its want of power.
    Certiorari to review the conviction of the relator of disobedience of orders and failing to attend company drills, by a court martial consisting of the respondent.

      John J. Leary, in person, for the relator.

      Horatio G. King, for Major ¥m. II. H. Tyson, the respondent.
   Barnard, P. J.:

A court martial consisting of one officer has only jurisdiction of “ delinquencies and deficiencies ” that occur in the military force. (Sec. 201, chap. 547, Laws of 1880.)- It requires a court of three officers to hear and try offenses “ other than delinquencies and deficiencies.” (Same section.) The charge for disobedience of orders requires a three-officer court. “ Said court shall not have jurisdiction thereof unless the same (charges) shall have been approved by the officer ordering the court.” A copy of the charges are to be served. (Same section.)

A failure to plead to the jurisdiction of the court only waives such matters as an accused party may waive. He may waive notice and a copy of charges, but he cannot by omitting to plead lack of jurisdiction confer it upon a court which has none by law. In such a case the general rule is that consent cannot confer jurisdiction. It was extremely improper for the president of the court martial to return a letter from relator to II. C. King. It was not a part of the trial. It is a private letter to King. It is not proven. It could have no effect upon an invalid judgment.

The judgment should be reversed, with costs.

Dykman and Cullen, J J., concurred.

Order and judgment reversed, with costs.