author: Bischoff, J.

text:
    John A. McGrath, App’lt, v. William H. Mangels, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Appeal—Inconsistent position.
    A contention on appeal from a judgment, in an action for moneys had and received, that defendant did not accede to conditions stated by plaintiff in a certain letter and hence, that the law implied a promise to return the purchase money which accompanied the letter, plainly inconsistent with plaintiff’s attitude on the trial, is not available.
    3. Evidence—Parol to explain written contract.
    A letter by plaintiff was claimed by him to constitute an agreement in writing, but if such, was incomplete in omitting to state what were certain representations by defendant therein mentioned, and therefore paroi evidence concerning the nature of such representations was competent.
    Appeal from a judgment, for defendant rendered by the district court in the city of New York for the tenth judicial district. Action to recover for moneys had and received to the use of the plaintiff, under an agreement for the sale of a mare with privilege to the plaintiff to return her, if upon trial she should not prove satisfactory to him or prove to be not as represented.

      William H. Hamilton, for app’lt; Lewis J. Conlan, for resp’t.
   Bischoff, J.

It is conclusively apparent from the pleadings and proceedings upon the trial that plaintiff sought to recover in this action upon an alleged oral agreement between the parties to refund the purchase money if upon trial the mare should not prove satisfactory to plaintiff. The fact of any such agreement was unequivocally denied by the defendant and it is not supported by plaintiff’s letter of April 11, 1892, addressed by him to the defendant with the check for the purchase money, upon receipt of which defendant delivered the mare to the plaintiff. Whether or not such was the agreement was, therefore, a question of fact which the trial court was called upon to determine upon the conflicting testimony of the witnesses ; and careful consideration of all the evidence fails to convince us that there was such a preponderance for plaintiff that it was legal error for the court below to determine that question adversely to him.

Recovery was sought, not for breach of an alleged warranty in the sale of the mare, but upon defendant’s alleged promise to return the purchase money paid him, which was, upon the evidence, predicable at most of his agreement to return it if the mare was “not as represented.’’ What the representations were, and whether they were true or false, were likewise questions of fact determinable only from the testimony of witnesses, and with the determination of the trial court upon conflicting testimony we cannot interfere, except where there is a pal pable miscarriage of justice. Weiss v. Strauss, 39 St. Rep., 78 ; Baird v. The Mayor, etc., 96 N. Y., 567.

We have not failed to notice appellant’s contention that the sale of the mare was not completed because defendant did not accede to the conditions stated in plaintiff’s letter of April 11,1892, and hence, that the law implied a promise to return the purchase money which accompanied the letter. This contention, however, is plainly inconsistent with plaintiff’s attitude on the trial, and, therefore, not available. Fulton v. The Metropolitan Life Ins Co., 47 St. Rep., 111; Fay v. Muhlker, 48 id., 699.

So,- also, it is urged for reversal of the judgment that plaintiff’s letter of April 11, 1892, constituted an agreement in writing, and that it was error for the trial court to admit paroi evidence concerning the nature of defendant’s representations, but as the latter, if treated as an agreement, is plainly incomplete as such, in omitting to state what the representations were, the evidence objected to was properly admitted. Lamson Con. Store Service Co. v. Hartung, 45 St. Rep., 50; 46 id., 191.

The judgment should be affirmed, with costs.

Pryor, J., concurs.


source: Caselaw Access Project

author: Daly, Ch. J.

license: Public Domain

text:
    Francois X. Dietlin, Resp’t, v. Thomas D. Egan, App’lt.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Appeal—Reaegument.
    A motion was made before the general term of the common pleas for a, reargument upon the ground “ that the court omitted to consider the question whether the court below refused defendant’s motion to vacate the attachment for want of power.” The appellant’s brief upon the argument of the appeal showed that he did not base his appeal upon sucherror, his point simply being that the court ‘ ‘ practically refused to entertain the application on the ground of want of power,” and the opinion of such court nowhere intimates any doubt of its power. Held, that there was no ground for re-argument.

      Motion for reargument by appellant.

      Edmond Huerstel, for resp’t; Arthur R. Robertson, for app’lt.

       See 46 St. Rep., 763.

   Daly, Ch. J.

The ground of claim for reargument stated in the notice of motion is that the court omitted to consider the question whether the court below refused defendant’s motion to vacate the attachment for want of power. No other ground appears in the motion papers. The affidavit sets out that the appellant’s counsel, through his inadvertence and negligence, while presenting the point did not present any authority on the question of the failure of the court to exercise its power.

A reference to the appellant’s brief upon the argument of the appeal in this court shows that he did not base his appeal upon error in that the court below refused to vacate the attachment for want of power. His point simply was that the court “ practically refused to entertain the application on the ground of want of power,” and he refers to the opinion of the general term of the city court printed at folio 75 of the case. A perusal of that opinion fails to show that the city court doubted its power to afford the appellant the relief he asked; on the contrary, it appears that in denying the motion, the court exercised its discretion upon the facts. The opinion is as follows: “ The attachment was issued upon sufficient facts, which are controverted by defendant. The issue so raised should be determined by a jury, and not by a justice sitting in chambers and upon affidavits. The motion to vacate attachment was properly denied, and order appealed from must be affirmed, with costs.”

This disposition of the matter was in the exercise of a discretion which, undoubtedly; resided in the general term, either to try the issues in the case (for the motion of defendant to vacate the 'attachment was based upon a denial of' the cause of action and upon the defense of usury) upon affidavits, or to decline to do so; but nowhere does the court intimate any doubt of its power to take either alternative. This being so, there is no ground for reargument upon the merits of this motion.

Nor does the appellant bring himself within the rule as to re-argument laid down by this court, following the court of appeals. Rule 16. It is not shown that any question decisive of the case has been overlooked by the court after being presented by counsel upon the argument; nor that the decision is inconsistent with any statute or controlling decision to which the attention of the court was not drawn. The point relied upon now as a ground of this motion was not urged, as was stated above, upon the appellant’s brief; he only complained that the court “ practically ” refused relief on the ground of want of power, and no basis for even this modified claim was presented.

Motion denied, with ten dollars costs.

Bischoff and Pryor, JJ., concur.


author: Pryor, J.

text:
    George T. Meislahn, Resp’t, v. Adam J. Engelhardt et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 16, 1893.)

    1. Appeal—Case.
    To review an error of fact, the case must purport to contain all the evidence.
    2. Same.
    To review an error of law, such certificate is unnecessary.
    Appeal from judgment of the general term of the bity court, affirming judgment on a verdict, and from an order affirming order denying a new trial.
    Action for broker’s commission.

      Gibson Putzel, for app’lts ; Malcolm Campbell, for resp’t.

      Affirming 49 St. Rep., 454.

   Pryor, J.

Counsel for the respondent objects to a consideration of the alleged error of the court below, in denying a motion to dismiss the complaint for defect of proof, on the ground that the case does not purport to contain all the evidence. As the rule of practice upon the point appears to be in doubt among the profession, it may not be amiss so to restate it as to avert the possibility of misapprehension.

Under the former Code, an exception to a finding of fact was notice to the respondent that his adversary intended to assail the finding as erroneous; and if any proof necessary to sustain it was omitted from the case, it became the duty of the respondent to supply it. Hence, on appeal, the presumption was that the case contained all the evidence bearing on the question sought to be presented. But since, under the Code of Civil Procedure, an exception to a finding of fact by the court or a referee is not allowable, the respondent gets no warning of an intention to review questions of fact, unless the case certifies that it contains all the evidence. Otherwise, however, as to questions of law. They are the subject of exception; and such exception iffielf imports notice to the respondent that the error of law will be challenged on appeal. Hence, all the evidence bearing on the alleged error ' will be assumed to be incorporated in the case. Porter v. Smith, 107 N. Y, 531; 12 St. Rep., 479; Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep., 948. Now, a finding of fact without evidence to support it is error of law; and so, on appeal, the presumption is that the case contains all the evidence affecting such error, and it may be reviewed without a certificate as to the completeness of the evidence. Halpin v. Ins. Co., 118 N. Y., 165 ; 28 St. Rep., 788; Van Bokkelen v. Berdell; 130 N. Y, 141; 41 St. Rep., 312; Spence v Chambers, 39 Hun, 193.

The cases cited were trials by the court or a referee; but the reason of the rule is equally applicable to a trial by jury, and, accordingly, the ruléis prevalent in such trial. Cheney v. R. R. Co., 16 Hun, 415 ; Cornish v. Graff, 36 Hun, 160 ; Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep., 297.

It follows, therefore, that the exception in the case at bar to the denial of the motion to dismiss the complaint for defect of proof presents the alleged error for review notwithstanding the absence of a certificate that the record presents all the evidence.

It is unnecessary to review the evidence in detail. It is enough to say that although on a critical examination we find the proof of plaintiffs case by no means satisfactory, yet as the evidence appears sufficient to support the verdict, we have no alternative but to affirm the judgment. Bichart v. Hoffmann, 46 St. Rep., 886. Judgment and order affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


text:
    The Durant Land Improvement Company, App’lt, v. The Thomson-Houston Electric Company, Resp’t

      (New York Common Pleas, General Term,

      Filed January 16, 1893.)

    SUMMABY PROCEEDINGS—BAB.
    A judgment for rent pending on appeal with an undertaking effectual as a stay, does not prevent a valid demand of the rent and a default in its payment; and so opposes no bar to a summary proceeding to dispossess the tenant for non-payment of the rent for which the landlord has the judgment.
    Appeal from final order of a district court dismissing a summary proceeding to recover real property. In an action by respondent for apportionment of rent the appellant counterclaimed and recovered judgment for the rent for the non-payment of which this proceeding is instituted. The judgment antedated the demand for rent in this proceeding. After the issuance of execution on the judgment and before the demand in this proceeding, the respondent took and perfected an appeal from the judgment.

      Esek Cowen and Charles J. Hardy, for app’lt; Wm. B. Putney, Eugene S. Ives and Henry B. Twombly, for resp’t.
   Pryor, J.

We have given to the case the consideration due to its importance and to the novelty of the point upon which its decision is suspended.

Whether the order shall stand depends upon the correctness of three propositions affirmed by the trial justice in favor of the respondent, namely : That no clue demand of the rent was made; that the demand was not made upon the tenant; and that, because of a judgment for the rent in behalf of the appellant, and an undertaking given by the respondent on appeal from that judgment, there was no effectual demand and so no default.

As to the first proposition: It appears by the return that the landlord made demand of the “ amount due for rentthat the amount due had been ascertained and determined by a judgment between the parties, and that of this judgment the respondent had actual notice. The demand, therefore, was, in effect, of the sum so judicially decided to be due for rent. Demand of the amount of rent due, without naming the amount, is sufficient. McLean v. Spratt, 20 Fla., 515 ; McAdam on L. & T., 681.

In reason, moreover, the tenant may be presumed to be as well apprised of the sum he owes-as the landlord of the sum owing him.

The technicality requisite at common law to a forfeiture of the tenant’s estate for rent in arrears, has no place in a summary proceeding before a justice; since, manifestly, the strict observance of that technicality is incompatible as well with the nature of the remedy as the character of the tribunal. administering it. To complicate and' encumber the proceeding with a vain ceremonial that would frustrate its policy and. effect cannot be within the legislative intent.

But, .however this may be, it follows from our adjudication in a former litigation between these same parties, that no precise amount need be named in the demand for rent in order to institute a proceeding of summary dispossession. 15 Daly, 337; 25 St. Rep.. 928.

Equally untenable is the position that the demand was not made upon the tenant. That tenant was a corporation ; and the demand was made of the person who executed the lease as president of the company, -who said he was president, and that he had resigned, but his resignation had never been acted on; that as far as he knew he was president of the company. The statement, being merely an extrajudicial declaration, was incompetent evidence; but it was admitted without objection, and, in the case, had all the effect of a valid proof. We are of opinion that, in the absence of countervailing evidence, it is sufficiently shown that the person of whom the demand was made was then president of the respondent-company. “ To complete a resignation it is necessary that the corporation manifest their acceptance of the offer to resign.” Willcock on Corporations, 239; 1 Kyd on Corporations, Ch. 3, § 4; Van Orsdall v. Hazard, 3 Hill, 243 ; Edwards v. U. S., 103 UU. S., 471; 17 Am. & Eng. Ency. of Law, 169. It is not apparent that this common law rule has been abrogated in the state of New York. The decision in Chemical Bank v. Colwell, 132 N. Y., 250; 43 St. Rep. 876, proceeded upon the principle that the director ceased to be such by the transfer of the stock, ownership of which was a necessary qualification for the office. At all events, in the case at bar, it seems from the president’s statement that his resignation was contingent on its acceptance.

Avowedly, the respondent’s real reliance is upon the proposition that, because of the judgment for rent and the stay on appeal, the rent was not legally demon dable and a default in payment not legally possible. A demand and a default in payment were requisite to support the proceeding. Code, § 2231, sub. 2.

What, then, was the effect of the judgment and the undertaking on appeal upon l'espondent’s obligation to pay, and appellant’s right to demand, the rent?

Indisputably the judgment operated a merger of the cause of action for rent in the sense and with the effect that “ all its powers to sustain rights and enforce liabilities terminated in the-judgment, and could hot again be used as the foundation of a suit between the same parties.” 15 Am. & Eng. Ency. of ^ Law, 836. In other words, the claim for rent was transmitted into a higher security, and instead of resting in covenant became a debt of record. But the right was not extinguished, on the contrary it was made certain and invulnerable by the judgment. Nor did the judgment pay the rent, but only authenticated and confirmed the claim to it by an unimpeachable security.

What effect, again, had the judgment on the right to prosecute this proceeding ? The proceeding is upon the lease, but is not to recover the rent; and judgment of dispossession does not determine the amount of rent due. Kelly v. Miles, 48 Hun, 6; 15 St. Rep., 819.

The proceeding is in pursuit of another independent * and collateral remedy available by law to the landlord, namely, to recover the land for default in the rent. The right. to reclaim possession and the right to recover rent are not inconsistent, for, after dispossession of the tenant he may still be sued for the very rent which was the occasion of his dispossession. That the extinction of the one remedy, an action for rent on the lease, does not involve an extinction of the other collateral and independent remedy, recovery of possession for non-payment of the rent, is plain upon principle, and is settled by authoritative adjudication. “ The rule that security of a higher nature extinguished inferior securities, will be found to aj)ply only to the state or condition of the debt itself, and means no more than this, that when a judgment is taken upon a debt the debt as to its original or inferior condition is extinguished or swallowed up in the higher. "x" * * It has never been applied and never should be, to the extinguishment of distinct collateral securities, whether superior or inferior in degree. They are to be cancelled only by satisfaction of the debt." Butler v. Miller, 1 N. Y., 496, 500.

“A judgment upon a contract technically merges the demand, but not in so complete a sense that the courts may not look behind the judgment to see upon what it is founded for the purpose of protecting the equitable rights connected with the original relation of the parties.” Clark v. Bowling, 3 N. Y., 216.

The judgment interposing no bar to the proceeding, the remaining question is, was it arrested by the undertaking on appeal from the judgment?

The contention of the respondent is, that the stay in the action for rent effected by the undertaking operated a suspension of appellant’s right to demand the rent in the proceeding for dispossession, and that, as the appellant had no right to demand, the respondent is not in default by refusal.

The effect of a duly perfected appeal is “ to stay all proceedings to enforce the judgment appealed from.” Code, § 1310. In Ireland v. Nichols, 40 How., 85, 86, the court says: “The proceedings here referred to must be construed to mean such proceedings as may be instituted by the respondent for the purpose of enforcing the provisions of the judgment” In Morey v. Tracey, 92 N. Y., 581, 583, the court held that a stay on appeal is effectual only against a proceeding “ to enforce the plaintiff’s rights under the original judgment, or to obtain the fruits of it." That the proceeding to dispossess is neither an enforcement of appellant’s rights under the judgment, nor an effort to obtain the fruits of that judgment, is too obvious for argument. Appellant’s right under the judgment was to the rent in arrear, and that he neither sought to recover nor could recover in the present proceeding. The “fruits" of the judgment was the money thereby recovered, but the object and end of this proceeding is not that money, but simply possession of the premises.

'Nor does a stay on appeal impair or affect the right determined by the judgment, but only arrests all further proceedings to enforce it. Bowman v. Tallman, 19 Abb., 84; Matter of Berry, 26 Barb., 55; Ward v. James, 8 Hun, 526.

Hence the inevitable corollary, that the judgment and stay on appeal did not impair respondent’s liability for the rent or appellant’s right to receive it. Both the right and the liability still subsist, and though not in their original form, yet in their original vigor and -validity. There was a right, therefore, on the part of appellant, to support its demand, and such a liability on the part of the respondent as made its refusal a default, provided the demand was not under or in enforcement of the judgment. That the demand was not under the judgment nor to enforce its provisions, but proceeded upon an independent and collateral right, and to enforce an independent and collateral remedy, is a self-evident proposition. The demand, therefore, was lawful and effectual, and respondent’s refusal such a default as entitled appellant to maintain the proceeding.

It is not irrelevant to remark, in construing the policy of the statute, that security on appeal from the order of dispossession itself would not operate a stay of its enforcement. Code, § 2262; Broadwell v. Holcomb, 65 How., 502.

Order reversed, and new trial ordered, costs to abide the event.

Bookstaver and Bischoff, JJ., concur.


text:
    Emma Keller, Resp’t, v. Henry Feldmann, App’lt.

      (New York Common Pleas, General Term,

      Filed January 16, 1893.)

    1. Appeal—Common pleas.
    A judgment of the general term of the city court affirming a judgment by default, is not reviewable by the court of common pleas.
    2. Same.—Deeault.
    An order of the general term of the city court, which affirms an order-refusing to open a default is not an order affecting a substantial right so as to be appealable to the court of common pleas.
    3. Same—Discretionary orders.
    Discretionary orders of the city court are not reviewable by the court of common pleas, except, perhaps, when they exhibit an abuse of discretion.
    Appeals from judgment of the general term of the city court affirming a judgment by default, and from order of the said general term affirming an order denying a motion to open the default.

      Langbein Bros. & Langbein, for resp’t; John Henry Hull, for app’lt.
   Pryor, J.

The record shows that when the action was called for trial the defendant failed to appear, and that thereupon his default was entered, and judgment rendered against him upon an assessment of damages.

Ho appeal lies from a judgment by default. The only office of an appellate tribunal is to review the determinations of the primary jurisdiction; and since a judgment by default involves no adjudication upon the issues in controversy, it follows that nothing is presented for revision by the court above. Flake v. Van Wagenen, 54 N. Y., 25, 28 ; Innes v. Purcell, 58 id., 388; Mallby v. Greene, 1 Keyes, 548. A judgment of affirmance by default is not an actual determination. Stevens v. Glover, 83 N. Y., 611; McMahon v. Rauhr, 47 id., 67. By express provision of the Code (§ 1294), a judgment by default is excepted from the privilege of appeal. Thus, reason, authority and statutory enactment concur to the point that the appeal from the judgment must be dismissed for lack of jurisdiction to entertain it.

As to the order upon appeal:

It appears that when the plaintiff moved the cause for trial, the defendant asked an adjournment because of the absence of an alleged material witness. The request for the adjournment being opposed, was denied by the trial judge; thereupon defendant’s counsel withdrew from the litigation; and an inquest of damages was taken by the jury. Afterward the defendant moved at special term of the court below to open the default and vacate the judgment; upon opposing affidavits the application was denied; on appeal from the order of denial it was affirmed by the general term; and from that order of affirmance an appeal is prosecuted to this court. The question is: Have we jurisdiction to , entertain the appeal ?

The argument of appellant imports that an order refusing to open a default affects a substantial right, and so is within the terms of the statute defining the appellate jurisdiction of the common pleas over the orders of the city court. Code of Civ. Pro., § 3191, subd. 3. But, the reasoning is vitiated by a fatal fallacy; namely, in assuming that an order denying a motion to open a default affects a “ substantial right.” In the sense of this provision of the Code, a substantial right is a strict legal right, enforceable as such, and not resting at all in the discretion of the court De Barante v. Deyermand, 41 N. Y., 355; Foote v. Lathrop, id., 358, 361; Martin v. Windsor, 70 id., 101, 103.

Hence the “ universal rule 'that an order embodying a determination of the court below which is the result of the exercise of a discretion vested in that court, will not be reviewed in the court of appeals although it affects a substantial right.” Baylies on New Trials and Appeals, 217-218 ; Anonymous, 59 N. Y., 313, 315; Smith v. Platt, 96 id, 635-6; Witkowski v. Paramore, 93 id., 467; Clyde v. Rogers, 87 id., 625 ; Lawrence v. Farley, 73 id, 187; Jenkins v. Putnam, 106 id., 276 ; 8 St. Rep., 710. The appellate jurisdiction of this court over the determinations of the city court being exactly commensurate with the jurisdiction of the court of appeals over its subordinate tribunals, it results that we have no authority to review a discretionary order of the city court. Robinson v. Cornish, 36 St. Rep., 39 (G. T. Com. Pleas); McEteere v. Little, 8 Daly, 167 ; Walsh v. Schulz, 12 id., 103 ; Matter of Adler, 60 Hun, 481, 483 ; 39 St. Rep., 462. But whether a default should be opened is a question of judicial discretion ; and an exercise of that discretion by the city court is not reviewable by us. Traitteur v. Levingston 13 N. Y. Supp., 603 ; 37 St. Rep., 368; Miller v. Tyler,. 58 N. Y., 477, 480 f Walsh v. Schulz, 12 Daly, 103 ; Wakefield v. The Am., etc., Co., 13 id., 349 ; Robinson v. Cornish, supra; Judson v. O'Connell, 14 N. Y. Supp., 92; 37 St. Rep., 581; Clute v. Mahon, 9 N. Y. Supp., 713 ; 31 St. Rep., 405 ; Depew v. Dewey, 56 N. Y., 657 ; Ferris v. Ferris, id., 614; Smith v. Belden, 60 id., 642; Davis v. Borst, 58 id., 669; Wade v. De Leyer, 63 id., 318; Matter of Loew, 90 id., 666; Stevens v. Glover, 83 id., 611.

The defendant suffered default because of the refusal of the trial court to allow an adjournment; but orders of adjournment are discretionary, Borley v. Wilson, 34 St. Rep., 987, and hence are not appealable to us from the city court.. Cases supra-. Nevertheless, we have examined the papers on the motion for adjournment sufficiently to enable us to say, without hesitation, that in denying the motion the court committed no abuse of discretion. The application for postponement went upon the ground of the absence of an alleged material witness. But the witness had not been subpoenaed; nor had any effort been made to subpoena him or otherwise to procure his attendance. Eor this defect alone the application was properly denied, Brooklyn, Oil Works v. Brown, 7 Abb., N. S., 382, but on reading the record we perceive that the adjournment might well have been refused also on the more sub- . tantial ground of justice.

The appeal from the order must be dismissed.

Appeals dismissed, with costs.

Bookstaver and Bischoff, JJ., concur.


text:
    Bernard Zivi, Resp’t, v. Elias Einstein et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 16, 1893.)

    1. Pleading—YVhen a sham answeb mat not be stbicken out.
    A denial of a material allegation of the complaint, whether general or specific, may not be stricken out as sham.
    •3. Same.
    An averment of lack of knowledge or information sufficient to form a belief as to such allegation is such a denial as prevents striking out the answer as sham.
    Appeal from order of the general term of the city court, affirming order striking out answers as sham; and from a judgment of the said general term, affirming the judgment entered on the order so striking out the answers.
    The answers denied knowledge or information sufficient to , form a belief as to certain allegations of the complaint. The nature of the action appears in the opinion.

      James Murphy, for resp’t; B. F. Einstein, for app’lts.

       Reversing 49 St. Rep., 334.

   Pryor, J.

The judgment being by default, for want of an answer, is not appealable to this court. Keller v. Feldmann, herewith decided.

But the appellants are not remediless. We have unquestionable jurisdiction to review the order affirming the order striking out the answer; and should we find error in the decision complained of, it will be the duty of the court below to reinstate the answers and try the case on the issues raised.

The action proceeds upon § 34 of the act of 1875, chap. 611, and is prosecuted to enforce against the "defendants, as stockholders, a debt or liability of the Rubolio Company evidenced by a judgment. It is equivocal on the face of the complaint whether it counts upon the original liability or the judgment; but, take the case in either aspect, and it is sufficiently apparent that the answers controverted material allegations of the complaint.

If the action proceeds upon the original indebtedness of the company, then the answers traverse in due form, Code, § 500, the alleged loan to the company, and its present liability therefor, both of which facts it is incumbent on the plaintiff to establish. If the action be upon the judgment, then the answers traverse the judgment, and the company’s submitting liability on it, both of which facts it is incumbent on the plaintiff to prove. It is manifest, without more, that the court below had no authority to strike out the answers. The Robert Gere Bk. v. Inman, 51 Hun, 97; 24 St. Rep., 160 (opinion of Follett, J., collecting all the cases).

It is argued, however, that the action being on the judgment, the defendants are presumed to be cognizant of it; and for support of the proposition our own decision in Ketcham v. Zerega, 1 E. D. Smith, 554, is cited with apparent confidence. But there the judgme it was against the party himself, whereas here the judgment is against a stranger. Miller v. White, 50 N. Y, 141. Again, it is urged that the existence of the judgment is not an issue of fact; but in this state the plea of nul tiel record is triable by the jury. Fasnacht v. Stehn, 53 Barb., 650.

But, should there be a judgment in form against the Rubolio Company the defendants may impeach it for defect of jurisdiction ; and yet again, should the judgment exist and be valid, the answers impose upon plaintiff the obligation to prove it still unsatisfied.

Hence, as the answers, by denial, put in issue essential allegations of the complaint, they cannot be stricken out as sham. Gere Co. v. Inman, supra.

The argument at the bar ranged over a variety of interesting topics ; but, indisposed to anticipate the course of the trial, we are content to adjudicate simply the question before us.

Order reversed. Appeal from judgment dismissed. No costs to either party. Trial directed on the {¡tnswers stricken out, or any amended answers that may be interposed by leave of the court below.

Order to be settled on notice.

Bookstaver and Bischoff, JJ., concur.


text:
    James Donivan, Resp’t, v. The Manhattan Railway Company, App’lt

      (New York Common Pleas, General Term,

      Filed January 16, 1893.)

      1. Master and servant—Wilful tort of servant.
    For the wilful tort of a servant a master is not answerable in punitive damages, unless he authorize or ratify the tort, or be guilty of misconduct in the employment or retention of the servant.
    3. Same—Punitive damages—Intent.
    Punitive damages being imposed as a punishment for the wilful or reckless misconduct of a wrongdoer, cannot be inflicted regardless of his intent, whether good or bad.
    3. Same—Corporations.
    It is error, therefore, to charge that a corporation master is responsible in punitive damages for an inexcusable assault and battery by its servant, when the evidence authorizes the inference that the servant acted from an innocent motive and in the supposed discharge of his duty.
    4. Same.
    When a proposition of law is true only with a qualification of limitation, it is error to charge it absolutely and unconditionally, if the evidence calls for the application of the qualification or limitation.
    5. Same.
    It is error, therefore, to charge that a corporation master is liable in punitive damages for the wilful tort of its servant, in the absence of evidence that the master authorized or ratified the tort, or was guilty of misconduct in the employment or retention of the servant.
    6. Same—Ratification of tort.
    The mere retention of a servant after his wilful tort, without proof of knowledge of the tortious quality of the act on the part of the master, is insufficient to authorize an inference of a ratification of the tort.
    7. Same.
    A carrier corporation is not liable in punitive damages for an assault and battery by its servants on a passenger, unless the corporation authorize or ratify the tort, or wrongfully employ or retain the servant.
    8. Trial—Charge.
    When the evidence as to a fact is conflicting, it is error so to charge as to give the jury to understand that they may find the fact on the testimony of the plaintiff’s witnesses alone.
    Appeal from judgment on a verdict, and from an order denying a new trial.
    Action for injuries inflicted on plaintiff by defendant’s servants in ejecting him from the platform of defendant’s railway. Plaintiff had a verdict in the sum of $16,000.

      Edward G. James, for app’lt; Michael H. Cardozo, for resp’t.
   Pryor, J.

Assuming the aspect of the case most favorable to the plaintiff, as presented by the pleadings and proofs, he has recovered a judgment against the defendant for a wilful injury by its servants while he sustained to it the relation of passenger. Dwinelle v. R. R. Co., 120 N. Y., 117; 30 St. Rep., 578; Car perder v. R. R. Co., 97 N. Y., 494; Stewart v. R. R. Co., 90 id., 588. The validity of the judgment is challenged by many exceptions, of which two only need be subjected to consideration.

In compliance with a request of the plaintiff, the judge charged: “If the jury find that the plaintiff, at the time he was ejected from the platform, was not committing any breach of regulation or other misconduct,-and was not intoxicated, they have a right to find that the attempt to eject him was an utterly inexcusable assault and battery, for which the defendant may be held liable for punitive damagesto which instruction the defendant duly excepted.

Upon its terms, the proposition submitted to the jury cannot be upheld. It affirms that the plaintiff being without fault, the attempt to eject him of itself subjected the defendant to punitive damages; whereas, the law is that the denunciation of punitive damages is directed against the evil intent of the wrongdoer, and in the absence of that intent is unwarrantable. Hamilton v. Third Ave. R. R. Co., 53 N. Y., 25. It may be, and the evidence tends to establish, that defendant’s servants, in ejecting the plaintiff, honestly and reasonably believed him to be guilty of misconduct; in which event they, and a fortiori the defendant, would not be liable beyond the measure of mere compensation. ' And yet, without reference to the intent of the defendant’s servants, whether good or bad, the charge authorized the jury to award punitive damages simply upon the ground of an unjustifiable assault on the plaintiff. Here was clear error, Hamilton v. R. R. Co., 53 N. Y., 25, 29-30, and, since, for anything apparent in the record, the jury exonerated the servants from improper motive, the error is inevitably fatal to the judgment. Cleghorn v. R. R. Co., 56 N. Y., 44, 49.

Assuming, however, that the persons who inflicted the injury on the plaintiff were responsible to him in punitive damages, still the defendant was not so answerable merely because of its relation to the actual wrongdoers ; and if this proposition be correct, it follows that, since the charge imputed liability for punitive damages to the defendant because simply of that relation, the instruction involves a vicious principle, and is again fatal to the judgment.

The principle of punitory damages in a civil action crept into the jurisprudence of England by imperceptible approaches; is recognized by no other system of law; and is impugned by writer’s and judges of authority as illogical, unphilosophical and pernicious to tlie administration of justice. 2 Greenleaf on Ev., § 253, note 2; Fay v. Parker, 53 N. H., 342 ; 16 Am. Rep., 270; Murphy v. Hobbs, 7 Colo. 541; 49 Am. Rep., 366, 370 ; Stewart v. Maddox, 63 Ind., 51; Spokane &c. Co. v. Hoefer, 2 Washington, 45; 26 Am. St., 842.

Conceding the doctrine to be incorporated into the jurisprudence of this state, the question for adjudication is, whether for the wilful tort of his servant, a master, without more, is liable in punitory damages ? Upon principle the answer is obviously in the negative. Since punitory damages are inflicted as a punishment for the evil intent or bad conduct of the wrongdoer, and since ex hypothesi the master is guilty of no such intent or conduct, in reason and justice he is not amenable to the penalty. “ When there has been no intentional offense committed, when a party has only done what he honestly believed to be his duty, punishment is not deserved.” Grover, J., in Hamilton v. R. R. Co., 58 N. Y., 30. Nor are the absurdity and injustice of the contrary rule mitigated, but aggravated rather, by the imputation of the guilt of the servant to the innocent master. , Vicarious punishment is not a principle of human law. A judgment for compensatory damages affords a plaintiff complete reparation for his injury; and if, in the interest o£ the public, punishment should be inflicted, common justice requires that it fall only on the guilty. Of late only has a master been made responsible in compensation for the wilful tort of his servant, Mali v. Lord, 39 N. Y., 381; to push the principle of vicarious liability to the point of imposing punishment for an imputed offense would not only violate all analogy, but would shock every instinct of justice.

How stands the question upon authority ? In some other jurisdictions decisions sustain the principle of the absolute liability of a master in exemplary damages for the wrongful act of his servant; but the clear preponderance of adjudication is to the contrary. Hagan v. R. R. Co., 3 R. I., 88; 62 Am. Dec., 377, and cases collected in Note, 385, 386; Gulf, etc., R. R. Co., 80 Texas, 362; 26 Am.St., 749, where it is ruled that: “Amasteris not liable in exemplary or punitive damages for the tort of his servant unless he authorized it, or, with knowledge of the wrong, adopted or ratified it, so as to make it his act in fact.”

In Ricketts v. R. R.. Co., 33 West Va., 433 ; 25 Am. St., 901, the law is propounded thus: “ A railway corporation is not answerable in exemplary damages for an assault on a passenger by one of its agents made in a malicious, unlawful or unnecessary manner, when there is no evidence that it was ever authorized, ratified or approved by the corporation, or that the servant was incompetent or of known bad character.” A recent writer of repute says: “ The better and more reasonable doctrine seems to be that the railway company is not to be held liable in exemplary damages for injuries caused by the negligence of its servants, unless it be shown that the servants’, act was wilful, and was either authorized or ratified by the company.” Patterson on Railway Accident Law, 471, § 392.

But, whatever the weight of decisions abroad, in this state, at least, the question is concluded by authoritative adjudications. In Cleghorn v. R. R. Co., 56 N. Y., 44, the proposition is : “ For negligence, however gross or culpable, of a servant while engaged in the business of the master, the latter is not liable in punitive damages unless he is also chargeable with gross misconduct. Such misconduct may be established, however, by showing that the act of the servant was authorized or ratified, or that the master employed or retained the servant knowing that he was incompetent, or, from bad habits, unfit for the position he occupied.”

And in Fisher v. R. R. Co., 34 Hun, 433, the supreme court in the first department, per Daniels, J. (Davis and Brady, JJ.,concurring), ruled that “ A railroad company cannot be held liable for punitive damages unless shown to have been itself guilty of gross neglect or misconduct.”

Such being the law of Mew York, the error in the charge under criticism is manifest, and consists in the omission of the requisite qualification of the liability of a master in punitory damages for the tort of the servant; namely, the privity or misconduct of the master himself. “We cannot say but that the jury may, under the charge, have allowed exemplary damages without finding the necessary facts authorizing them to do it, and hence the defendant may have been injured by the charge. We are constrained to hold that the charge was erroneous in this respect; the rule with its limitations should have been explicitly stated.” 56 N. Y., 49; 34 Hun, 433.

In the case at bar, the magnitude of the verdict itself imports an allowance for punitive damages; and supposing the evidence-to authorize such allowance, still we are unable, under the charge, to say that the jury did not render the verdict without finding the defendant guilty of any participation in the wrong or other misconduct. A reversal of the judgment results, therefore, without reference to the state of the evidence.

We may add, however, that upon a critical examination of the-record, we find no proof of any misconduct of the defendant. The only circumstance adduced to fix the defendant with exemplary damages is the alleged fact that “ after the ticket agent reported the occurrence,” and the plaintiff commenced his suit, the-defendant did not discharge the servant, but resisted the action “ upon the sole issue that the plaintiff was guilty of misconduct, and that the servant had a right to eject him.” It is not apparent that the defendant was apprised of the wrongful nature of its servant’s act, without which knowledge there could be no ratification; but, on the contrary, by the very terms of counsel’s -proposition, it is manifest that the defendant believed its servants innocent of any wrong, and rightfully ejected the plaintiff because of misconduct. But, to authorize an inference of ratification, it must appear that the party ratifying had knowledge of all the facts and circumstances attending the transaction. Vincent v. Rather, 31 Tex., 77; 98 Am. Dec., 516; Gulick v. Grover, 33 N. J. L., 463; 97 Am. Dec., 728, and note; Billings v. Morrow, 7 Cal., 171; 68 Am. Dec., 235, and note. “A company cannot be held to ratify an assault and battery committed by its servant by retaining him in its service, where it believed his account of the affair and thought.it just to preserve the status quo until a judicial determination of the matter.” Williams v. Pullman & Company, 40 La. Ann., 87; 8 Am. St., 512.

The judgment is invalidated by another and still more obvious error in the charge. A question of moment on the amount of damages, and strenuously contested on the trial, was, whether plaintiff’s injuries would, in time, pass away, or develop ultimately into some fatal form of mental malady. The issue hanging in-suspense on the balance of expert testimony, the learned trial judge charged that “if the jury believe, from the evidence of the physicians called on the part of the plaintiff, that the injuries which the plaintiff had sustained will develop into some serious condition hereafter, the plaintiff is entitled to recover damages for such pain and suffering as the jury believe he will sustain.” Thus, in terms, the determination of the disputed fact, material to the amount of recovery, was submitted to the jury on the plaintiff’s evidence alone, to the exclusion of all contrary evidence adduced by the defendant. Argument is unnecessary to demonstrate the mischievous illegality of this instruction. The direction to the jury should have been to ascertain the fact upon all the evidence. Slate v. Whit, 72 Am. Dec., 548.

As we cannot know but that the fact was found for the plaintiff upon the strength of his evidence, and in total disregard of the contradictory testimony produced by the defendant, the proposition presented to the jury necessarily requires a reversal of the judgment.

Judgment and order reversed, and a new trial directed, costs to ■abide the event.

Daly, Ch. J., and Bischoff, J., concur.


author: O’Brien, J.

text:
    The People, Resp’ts, v. Bruno W. Gottschalk, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Labceny—Indictment—Vabiance.
    An indictment charged that the defendant, “with force and arms, feloniously did steal, take and carry away the money and property ” of W. Upon the trial it appeared that W. advertised for employment, offering security, and that defendant, by false representations, and intent to steal the same, caused W. to deposit §200 with him as a pledge of his honesty, and contracted for his services, agreeing to return the money on the termination thereof. The contract was terminated, but defendant failed to return the money. Held, that there was no variance between the indictment and proof, common law larceny being charged and proven.
    Appeal from a judgment convicting appellant of the crime of stealing $200, the property of one Joseph Weiss.

      Henry Wehle (Edward Grosse, of counsel), for app’lt; De Lancey Nicoll and Henry B. B. Stapler, for resp’ts.
   O’Brien, J.

This appeal is taken upon a pure question of law, as to whether the crime charged in the indictment was the crime proven upon the trial. The indictment charged that the defendant, “ with force and arms, feloniously did steal, take and carry away the money and property of Joseph Weiss.” It is conceded that the following facts, which are concisely stated in the bill of exceptions, were established by the People upon the trial: That one Joseph Weiss published on or about November 11, 1891, an advertisement in the city of New York, in which the said Joseph Weiss applied for a position as clerk or collector, and offered to give security for the faithful performance of his duty. That, thereupon, in the city of New York, on or about the said 11th of November, 1891, the defendant called on said Joseph Weiss, aud represented that he was engaged in a legitimate business, in which he needed the services of a clerk or collector, who could deposit security for his honesty. That thereupon the said Joseph Weiss paid over to said defendant, and deposited with said defendant, the sum of §200, not intending to part with the title of said §200, but only to pledge the said money as security, retaining the title thereto, and received from the said defendant a certain receipt and contract of employment, by the terms of which the said defendant undertook to return the said sum of §200 on the termination of the contract of employment, and that said contract of employment would be determined on a notice of thirty days by said Joseph Weiss to defendant. That said Joseph Weiss entered the said service of defendant, but found out that his business was not a legitimate one, and on or about the 9th day of December, 1891, gave defendant notice, in accordance with the requirements of the contract, that he would terminate the contract. That defendant promised and agreed to repay and return the sum of $200, as follows: One hundred dollars on February 1, 1892, and §100 on March 1, 1892; but that on or about January 11, 1892, defendant left for Chicago, and did not return any part of said §200, but that said defendant designed to steal the same and to-appropriate the same at the time said Weiss made said deposit of $200, and entered the employment of said defendant, and at the-time he made his said statements and representations to said Joseph. Weiss. That said statements and representations were made by the defendant in order to induce the said Weiss to make the said deposit with the defendant. The defendant’s attorney objected to the introduction of this evidence at the proper time, on the ground that the facts were not stated in the indictment. The objection was overruled. Defendant excepted. The defendant moved to strike out the testimony on the ground that the indictment charged that, the larceny was committed by trespass, while the proof showed: that the larceny, if any, was committed by obtaining the property through false and fraudulent representations, which fact was not pleaded in the indictment. The court held that the facts stated tended to prove a larceny by trick and device, and the indictment was sufficient to admit proof of these facts. The defendant excepted to this ruling. Other witnesses were called by the prosecution to confirm the testimony of Joseph Weiss, but the testimony did not vary the version of the facts as stated by Joseph Weiss, and, at the close of the testimony for the People, the defendant’s counsel moved that the court direct the jury to acquit the defendant on the grounds: (1) That the crime alleged was not proven - (2) that the facts alleged in the indictment were not proven; (3)-that the facts proven varied materially from the facts alleged in the indictment. The court denied the defendant’s motion, and defendant excepted to it. The court then charged the jury, and the jury found a verdict of guilty of larceny in the second degree.

Between the indictment and proof it is insisted by the appellant that there was a fatal variance, in that the act alleged is a forcible-taking of complainant’s money, which it is claimed was not proven, while what was proved was the fraudulently inducing of Weiss to-deliver the money to defendant, defendant’s duty to repay it on termination of the contract, and his neglect to comply with this duty, which, it is claimed, were not alleged. It will thus be seen that the appellant seeks to bring this case within the principle of People v. Dumar, 106 N. Y, 502; 11 St. Rep., 19. We think, however, that an examination of what was decided in that case will show the distinction which the appellant seemingly overlooks. That case is authority for the proposition that, under the provisions of the Code of Criminal Procedure prescribing the form of the indictment, it mnst charge both the crime and the act constituting it, and that the omission of either is fatal. That case, therefore, held, where - an indictment for grand larceny charged the act ■constituting the crime thus: the defendant “unlawfully and feloniously did steal, take, and carry away,” the property ■described, that it could not be sustained by proof that the- defendant obtained possession of the property from the owner upon a sale on credit, induced by false and fraudulent representations. The distinction between these two crimes as they existed at common law is clearly pointed out, and, as therein said: “In order to constitute larceny, there must have been a taking of personal property against the will of the owner. The other offense (false pretenses) could not be confounded with it. In either case, the property may have been obtained by artifice or fraud ; but if in one the owner intended to part with his property absolutely, and to convey it to the defendant, but in the ■other intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case would be larceny, but the former would not. It was, therefore, uniformly held that if a person, through the fraudulent representation of another, delivered to him a chattel, intending to pass the property in it., the latter could not be indicted for larceny, but only for obtaining the chattel under false pretenses." It is therein further shown that “ the Penal Code has swept away the theory by which the courts had felt constrained to distinguish them in principle. By it larceny is so treated as to include, not only that offense as defined at common law and by the Revised Statutes, but also embezzlement, obtaining property by false pretenses, and felonious breach of trust.” Therefore, under the Penal Code, “there are at least four distinct'and separate acts or ways by which a person may commit or be guilty of larceny. The first embraces larceny as described at common law and under the Revised Statutes; the second embraces the offense formerly known as 1 obtaining property by false representations.’ ” This ■case is, therefore, undoubted authority for the position that one who has been indicted for larceny for doing the first act, cannot be convicted of larceny for doing the second. ¡No question, however, can here arise as to this being a good indictment for larceny at common law; and, if the facts given in evidence were sufficient to sustain the crime of larceny at common law, then there is no variance between the indictment and the proof. At common law, when the owner of property, induced by false and fraudulent representations, intends to part with the title thereto, the crime of procuring property by false representations is committed, and not the crime of larceny. Where, however, the" intention not to part with the title to the property appeared, even though possession thereof may have been obtained by trick, device or fraudulent representations, it was larceny.

This distinction, we think, is very well pointed out in the casi i of Smith v. People, 53 N. Y., 111, wherein it was held that if, by trick or artifice, the owner of the property is induced to part’ with the custody or naked possession to one who receives the property anima furandi, the owner still meaning to retain the right of property, the taking will be larceny. In this case it is conceded that Weiss did not intend to part with the title to the $200, but only to pledge the said money as security, retaining the title thereto ; that the appellant afterwards appropriated the $200; and that his design at the time the complainant made the said deposit was to steal the same. The intention of Weiss to retain the title while parting with the possession of his money, and the intention of the prisoner to steal the same at the time of obtaining possession, are not affected by the subsequent negotiations to obtain on the part of Weiss a return of his property. It is absurd for the appellant to claim, after having without the consent of Weiss, stolen his $200, that this act, which constituted the crime of larceny, was in any manner changed or affected by the subsequent negotiations between the parties relative to Weiss’ obtaining a return of the same, and that, because the appellant agreed to make such return at a period subsequent to the indictment, the crime could not be committed until this period had expired by his then refusing to return the money. The distinction which we have sought to point out between the crime of lar cency and false pretenses we think is clearly supported by the cases of People v. Morse, 99 N. Y., 662, and Soltau v Gerdau, 119 id., 380; 29 St. Rep., 395. In the former the indictment was for common law larceny, and there, as here, the appellant contended that the crime established was the crime of obtaining money by false pretenses, and the test applied as to whether it was one or the other was the intention to part, or not to part, with the title of the property at the time possession thereof was taken from the true owner. We think, therefore, that where it is conceded, as in this case, that the complainant did not intend to part with the title to the $200, and that the defendant received the same with the intention of stealing it, and did steal it, the-crime committed was common law larceny, and not larceny by false pretenses. And where, as here, the proof tended to support and was directed to establish the crime of larceny at common law and as defined in the Penal Code, and as the crime charged in the indictment was the crime of larceny as it existed at common law and under the Code, there was no material variance between the facts proven and those alleged. The vice in appellant’s argument is due to his assuming throughout that the proof tended only to support the crime of statutory larceny by false pre-, tenses, whereas, as we have shown, the facts did establish larceny at common law. We are of opinion, therefore, that the convia tian should be affirmed.

Van Brunt, P. J„ and Lawrence, J., concur.


author: Truax, J. Per Curiam.

text:
    The China Mutual Insurance Company et al., Resp’ts, v. William M. Forge et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Charter party—Conflict of laws.
    A charter party entered into at New York between a citizen of that state and foreign vessel owners, to carry goods to a foreign port, nothing in the agreement showing a contrary intention, must be governed by the laws of New York.
    3. Same—Foreign judgment.
    A charter party provided for the payment of the freight upon delivery of the cargo at the port of discharge. The bark was wrecked before it reached such port, and a foreign vice-admiralty court ordered a portion of the money realized from tlie sale of the wrecked vessel and cargo to be paid to defendants as pledgees of the vessel and cargo. Held, that plaintiffs, who claimed under the charter, were not bound by the judgment of the foreign court, they not having been parties to the proceeding.
    Appeal from a judgment for $2,923.30 entered upon a decision of the court, at special term, in an action to recover the amount of a charter party.
   The following is the opinion at special term:

Truax, J.

In April, 1889, one Daniel GL Bacon, a citizen of New York, at the city of New York, entered into a charter party with the owners of an Italian bark, to carry a cargo from the city 'of New York to Eangoon. The charter party provided for the payment of freight upon delivery of cargo at port of discharge. The bark was wrecked before it reached the port of discharge, and became a constructive total loss, and no part of the cargo was ever delivered to the consignees, although some of it was saved by salvors, and together with the bark, her apparel and furniture, sold pursuant to an order of the court of the recorder of Eangoon, a court of vice admiralty jurisdiction. The proceeds of the sale were brought into the registry of the said court, and, pursuant to an order of said court, part of the proceeds of said sale was paid to the salvors. The remaining part was paid to the agent of the defendants, who bad advanced money to the master of the bark for necessary port disbursements, while in New York, upon his draft, which pledged the vessel and freight and directed that it be paid "by the consignees at the port of destination. Plaintiffs have succeeded to the lights of said Bacon. The defendants contend that the charter party is to be construed according to the laws of Italy, because the vessel was an Italian vessel, and that if so construed they would be entitled to retain the money received by them, because, by the commercial laws of Italy, freight had been earned j>ra rata. Plaintiffs concede that defendants should have judgment in this action, if such construction be sound.

. It is 'a well-settled principle of law in this state, if not in this country, that a contract made between a foreigner and a citizen is deemed to be governed by the law of the place where it is made and it is to be executed, unless it appears that by the agreement of the parties the contract is to be governed by the laws of some other country. Faulkner v. Hart, 82 N. Y., 413 ; Blanchard v. Russell, 13 Mass., 1; Smith v. Mead, 3 Conn., 253; Bank v. Shaw, 61 N. Y., 283. I am of the opinion that this charter party is to be governed by the laws of New York, and not by those of Italy. I have called attention to the fact that the charter party provided that freight was to be paid pro rata upon delivery of cargo at port of discharge. In this respect it followed the rule of law in this state. Hubbell v. Insurance Co., 74 N. Y, 246; New York C. & H. R. R. R. Co. v. Standard Oil Co., 87 id., 486; Richmonds. Steamboat Co., id., 240; 8 Kent Com. (11th ed.), 219, 225.

The defendants also contend that the judgment of the court of the recorder of Rangoon is binding upon the plaintiffs, although they were not parties to the proceeding in which that judgment was rendered. It may be taken as granted that a purchaser, under the decree of the recorder’s court of Rangoon, got good title to the property purchased, without granting that the subsequent disposition of the proceeds of the sale to the defendants is binding upon the plaintiffs. A foreign sentence in admiralty is conclusive only as to matters essential to the decree, and is not conclusive as to matters that are merely incidental or collateral, or not necessarily involved in the adjudication. 2 Black. Judgm., § 817. The rights of the salvor are in rem and not in personam. The Emblem, 2 Ware, 68. The salvors would be entitled to salvage, whoever owned the property. The only thing necessarily involved in the proceeding in the court of the recorder of Rangoon was the sale of the salved property for the purpose of paying thesalvors. In fact, nothing is said in the order of said court, by virtue of which defendants obtained the money, about the proceeds of the cargo. But if there had been anything said, it would not have been conclusive, for a sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. Windsor v. McVeigh, 93 U. S., 274. It was held in Vandenheuvel s. Insurance Co., 2 Caines Gas., 217 (reported more fully in 2 Johns. Gas., 127, 451), that an adjudication by the vice admiralty court of Gibraltar, that a ship and its cargo were not neutral, was not binding upon a citizen of the United States in an action upon a policy of insurance issued here; and to the same effect is Insurance Co. v. De Wolf, 2 Cow., 56. It follows that part of the money received by the defendants was the money of the plaintiffs, which they can recover in this action. Tugman s. Steamship Co., 76 N. Y. 207.

Judgment is ordered for the plaintiffs in accordance with findings.

Wing, Shoudy & Putnam (Harrington Putnam, of counsel), for app’lts; McFarland & Parkin (W. W. McFarland, of counsel), for resp’ts.

Per Curiam.

Judgment affirmed upon opinion of the court below, with costs and disbursements.

Van Brunt, O’Brien and Lawrence, JJ., concur.


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

text:
    In the Matter of the Application of The Southern Boulevard Railroad Company.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    -Condemnation proceedings—Second award.
    Where a new appraisal has been directed in condemnation proceedings, under Laws of 1876, chap. 198, amending the general railroad act, the court will not disturb the second award where it appears that theie were no legal errors or irregularities in the proceedings of the commissioners, and the amount of damages awarded is neither grossly excessive or insufficient.
    Appeal from order confirming a second award in condemnation proceedings. *
    Hoadly, Lauterbach & Johnson, (William H. Page, Jr., and Edward Lauterbach, of counsel), for app’lt; Stimson & Williams, (William Pierrepont Williams, of counsel), for resp’t.
   Lawrence, J.

When this case came before this court upon the -first appeal, it was held that the legislature having authorized the taking of the land for public use upon certain conditions, it •could not abolish those conditions, and treat the property as though no such conditions had been attached to its condemnation when first taken; that such conditions constituted the contract between the owners and the people, which the legislature had no rig lit to abrogate. 85 St Bep., 550. The Southern boulevard was laid out under chapter 290 of the Laws of 1867, and by the twenty-fourth section of said act it was provided as follows: “ Said road, when constructed, shall be kept and maintained for the public use, as an a.venue or boulevard, and, except for the purpose of crossing the same, no railway or tramway shall be laid or constructed thereon, or upon any part thereof, by any persons or corporations whatsoever, without a special act of the legislature of this state for that purpose first had and obtained; and in case the legislature of this state shall, at any future time, grant to any person or corporation the right to construct any rail or tramway upon said road, or any part thereof, nothing in this act contained shall be construed to affect or cut off the rights of the several owners of lands which shall be taken for laying out the road hereby authorized to claim and recover from such person or corporation the full value of all the land taken from such owner or owners, for the road hereby authorized to be constructed, to the same extent as if no such road had ever been laid out on said lands, and without any deduction for any supposed benefit to said lands to arise from the construction of such rail or tramway. Such ownership and claim for compensation by reason thereof are to apply as well to the roads, •streets and avenues which may have been heretofore laid out ■and dedicated to the public, by the owners of the lands adjacent thereto, and taken as a part of the road hereby authorized, as to lands so taken over which no roads have heretofore been laid out •or opened.”

The act of 1867 was amended by chap. 723 of the Laws of 1887, which provided as follows: “ Said road, when constructed, shall be kept and maintained for the public use as an avenue and boulevard, and no railway or tramway shall be laid or constructed thereon except by a railroad company which has been or may hereafter be duly organized under and by virtue of, and in conformity with, the provisions of chapter two hundred and fifty-two of the Laws of eighteen hundred and eighty-four, and which has heretofore complied or shall comply with all the provisions of said chapter, in respect of the consent of owners of property and the local authorities.” The Southern Boulevard Railroad Company was organized under the provisions of chap. 252 of the Laws of 1884, above referred to, and the commissioners in the first instance made only a nominal award to the ■Spoffords, whose property had been taken for the Southern boulevard, under the provisions of the act of 1867. As above stated, the order confirming that report was reversed upon appeal, and the proceedings were sent back to the commissioners for further examination. 35 St. Rep., 550. The commissioners have now awarded to the Spoffords the sum of $6,000, and from the order of the special term adjusting the 'difference between the two reports, and directing the payment of such difference, amounting to the sum of $5,999.94, this appeal is taken.

Section 18 of the general railroad act (Laws 1850, ch. 140) was amended by chap. 198, Laws 1876, which provided that, upon an appeal from the first report, the court on a hearing might direct a new appraisal, before the same or new commissioners, in its discretion, and that “ the second report shall be final and conclusive on all the parties interested.” It was further provided that, if the amount of the compensation to be paid by the company is increased by the second report, the difference shall be a lien on the land appraised, and shall be paid by the company to the parties entitled to the same, or shall be deposited in the bank, as the court shall direct, and, if the amount is diminished, the difference shall be refunded to the company, by the party to whom the same may have been paid, and judgment therefor may be rendered by the court on the filing of the second report against the party liable to pay the same. It is contended by the respondents that the second report is final and conclusive, and that no fraud, irregularity or mistake has been established in the proceedings of the commissioners which, within the decision in Re Prospect Park & C. I. R. Co., reported'in 24 Hun, 200, entitles this court to review or modify the determination of the commissioners. See, also, In re Prospect Park & C. I. R. Co., 20 Hun, 184; 85 N. Y., 489.

Our examination of the record convinces us that there were no legal errors or irregularities in the proceedings of the commissioners which, within the principles laid down in the cases just cited, authorize us to review their decision. Under the provisions of the act of 1867, as has already been held by this court in this case, 35 St. Rep., 550, it was the duty of the commissioners to award to the owners of the lands embraced within the Southern boulevard, which are sought to be takemfor the laying out of the petitioner’s road, the full value of all the land taken from such, owner or owners, to the same extent as if the boulevard had never been laid out on such lands, and without any deduction for any supposed benefit to said lands to arise from the construction of the petitioner’s road. It was also determined, as above stated, that the conditions prescribed by the act of 1867 constituted a contract between the owners and the people, which the legislature had no right to abrogate.

The commissioners in this case appear to us to have proceeded in accordance with the views thus expressed, and to have allowed to the owners, the respondents in this case, that which was, in their opinion, the full value of the property or easement sought to be taken for the construction of the petitioner’s road. That determination we have no right to review, inasmuch as the statute makes the commissioners the sole judges of such value, and the cases above cited hold that the only power we possess is limited to the correction of errors or mistakes which would set aside the report of a referee or the verdict of a jury. 24 Hun, 201. There is no pretense of mistake in this case, nor is the conclusion of the commissioners, in our opinion, liable to the criticism that a verdict of a jury assessing the amount of damage in the sum awarded by the commissioners would be set aside as excessive. We do not think that the appellant is right in the point taken, that the 'award is void under the constitution because damages are awarded for more lands than were actually required for the purjioses of the railway.

In its petition the petitioner states that it “ seeks to acquire the right to construct, maintain and operate a double-track street surface railroad, upon the surface of the soil, through, upon and along that portion of the Southern boulevard which formerly belonged to Paul Spofford, deceased, and which is located at or near the junction of the Hunt’s Point road with the said boulevard in the Twenty-Third ward of the city of Hew York, and also such switches, sidings and turnouts as may be necessary for the convenient working of said railroad, and the exercise and enjoyment of the rights, privileges, franchises and immunities now or hereafter to be accorded and secured to it by law.” This language clearly indicates that the petitioner intended to take all that portion of the Southern boulevard formerly belonging to Paul Spofford. The petitioner asks for the whole of that which formerly belonged to Paul Spofford, and we must assume, for the purposes of this appeal, that it actually requires for the purposes of its railroad the whole of that property, or an easement in the whole of it. The cases, In re Albany St, 11 Wend., 149, and Embury v. Conner, 3 N. Y., 511, cited by the appellant, are not, therefore, in point, for the simple reason that it does not appear that the petitioner is authorized to take, or is desirous of taking, more property than is or will be required for the purpose of its railroad. In those cases it affirmatively appeared that the property sought to be taken, under the power of eminent domain, exceeded the amount of land which was actually required for the purposes of the street intended to be opened. We think, too, that.in view of the express language of the statute, directing the manner in which the damages to be awarded to the owner are to be ascertained, it cannot be claimed that the commissioners should have made any allowance for supposed benefits to be derived by the adjoining land of Spofford from the construction of the petitioner’s railroad. We are, therefore, of the opinion that the order of the special term should be affirmed, with costs and disbursements.

Van Brunt, P. J.

I concur in the result. I do not concur in that portion of the opinion which intimates that the court has no power to review the award of commissioners. The court must confirm the award before it becomes effective, and the necessity of application for confirmation implies action upon the part of the court, and, therefore, it may refuse to confirm if justice requires it


author: Barrett, J.

text:
    John Dobson et al., Pl’ffs, v. August Kuhnla, Impl’d, Def’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Principal and agent—Tenants in common.
    One tenant in common of an apartment house cannot bind the others by any contract to purchase carpets for the halls or other supplies for the building or by authority given to an agent to procure the same.
    9. Same—Evidence of usage.
    , In an action against a tenant in common of such a building to recover for carpets purchased by one to whom defendant had given no authority to do scij evidence of a usige to carpet the halls and stairways of apartment houses is inadmissible.
    Exceptions ordered to be heard in the first instance at the general term in an action to recover the price of goods sold- and delivered.

      Leavitt, Wood & Keith (John Brooks Leavitt, of counsel), for pl’ffs; Foley & Powell, for def’t.
   Barrett, J.

We cannot understand why the exceptions in this case were directed to be heard in the first instance at the general term. The plaintiffs made out no case against the defendant Kuhnla, and they were properly nonsuited. They attempted to hold him as part owner of the apartment houses Nos. 14 and 16 West Sixty-fifth street, for the price of certain carpets which were purchased by one Porter and laid upon the hallways and stairways of these houses. No authority upon the part of Porter to purchase these goods was proved. Direct proof of authority is not claimed, but the court was asked to infer authority from Porter’s other acts with regard to the premises, such as renting apartments, purchasing coal for the premises, giving directions, employing the janitor, paying the watchman, etc. But there was no proof that any of these acts were done under Kuhnla’s authority, and, if they were done under the authority of one of the other tenants in common, that would not bind Kuhnla. A tenant in common is not like a partner who has power to make contracts for the partnership. His rights as tenant in common are distinct, and, in the absence of an express authority, he is not responsible for what another tenant in common does as to the property owned by both. Corning v. Iron & Nail Factory, 39 Barb., 325; Mc-Oready v. Freedly, 3 Rawle, 251. We may add that there was no proof that Porter’s acts were done under authority of any of the tenants in common, except, possibly, Porter’s wife, who seems to - have been present when he purchased the carpets. In Howard 'v. Norton, 65 Barb., 166, the court, speaking of the rule that an agent’s authority may be inferred from acts of a kind similar to that done in the case in which the proof is sought to be made, observed that “ the acts from which the inference of authority is sought to be drawn must be acts done under authority of the principal.” The present case is barren of proof on both heads. The agency was wholly unproved, and, of course, the declarations of the assumed agent were inadmissible. People's Bank v. St. Anthony's Church, 109 N. Y., 512; 16 St. Rep., 856 ; Deck v. Johnson, 1 Abb. Ct. App., Dec., 500. The evidence of a usage to carpet the halls and stairway of apartment houses^was properly excluded. As well might the heating apparatus or the elevator or the gas fixtures or coal and wood be included in such a custom. Whether it was customary or not to furnish these things, a tenant in common is surely not liable unless he purchased the goods or authorized some one to purchase them. The exceptions should be overruled, and judgment ordered for the defendant, with costs.

All concur.


author: Patterson, J. O’Brien, J.

text:
    The People ex rel. John W. Goodwin v. John R. Voorhis et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

      1. Municipal cobfokations—Police—Resignation.
    Where application is made to the hoard of police commissioners for a reconsideration of their action in accepting the resignation of an officer alleged to have heen procured by fraud, which application is made pursuant to a determination that such is the proper proceeding, the board cannot arbitrarily reject it without affording the relator an opportunity to be heard.
    2. Same.
    The hoard is not hound to accept the affidavits of the relator, nor the ' evidence of witnesses taken m mandamus proceedings to review its action on an application for reinstatement, as absolute and conclusive proof of the facts alleged; but may require common law proof.
    Certiorari to review action of the respondents in refusing to reconsider their action in accepting relator’s resignation and reinstate him.

      Louis J. Grant, for relator; E. H. Hawke, Jr, and W. H. Clarke, for resp’ts.
   Patterson, J.

The subject-matter of this application has been several times presented for the consideration of this court, and we have had occasion to state that, the facts being as claimed by the relator, he has suffered a wrong calling loudly for redress. Unfortunate mistakes in practice have prevented the enforcement of his rights up to the present time, but we are satisfied they may be secured by following the course now directed to be pursued. A brief statement of proceedings anterior to this, and of what has been determined or held in them, will not be out of place. On the 13th day of August, 1889, the relator was a member of the police force of the city of New York. On that day he signed a paper purporting to be a resignation of his position, and which, on being presented to the board of police commissioners, was accepted by that body.

The paper was regular in form, recited that it was the voluntary act of the relator, and was signed of his own free will and accord, and that it was not caused by any threat of punishment or act of coercion from his superior officers or any other person connected with the police department. It further appears in the record that, subsequent to the acceptance of the resignation, the relator refused to give up his shield or badge of office, and demanded reinstatement as a member of the force, alleging that the resignation had been procured by coercion and fraud practiced upon him by the sergeant and captain of the precinct to which he was attached. The commissioners declined to restore him to his position, whereupon a writ of certiorari was obtained from this court, upon the hearing on the return of which it was -held that the remedy invoked was-inapplicable, because the commissioners had merely acted within their authority and jurisdiction to accept a resignation regular on its face, one appearing to be the voluntary and valid act of the relator ; and, as no proceeding or judgment of any kind liad been taken or pronounced against him, there was nothing to be reviewed by certiorari. But, in the opinion of the general term, 32 St. Rep.,. 543, by Brady, J., it is said that “if the charge can be made against any member of the force, whoever it may be, whether captain or sergeant, that the relator was forced to resign, that would doubtless furnish a good and sufficient reason why he should be reinstated on a proper application to the respondents, and which, if denied, might be the subject of review in a proper proceeding,,r etc. After the dismissal of the writ referred to, an alternative mandamus to reinstate the relator was applied for, and it was then further claimed that the resignation had been fraudulently altered at the police station by the sergeant or captain. Issues of fact were framed and tried by a jury, and it was found by the verdict that the resignation was obtained by force, fraud and coercion of the-sergeant and captain, but without any participation therein of the commissioners. On the findings of the jury, a peremptory order was issued at special term for the reinstatement of the relator ; but on appeal it was reversed, on the specific ground that the rescission of the resolution accepting the resignation was a prerequisite to restoration of the relator to the force, and that it did not appear that the respondents had refused to entertain the relator's application, and hence they could not be compelled to rescind their prior action without the presentation to them of facts to justify it or to require it to be done. The question was not properly presented. and it was not for the court to compel a reinstatement arbitrarily. But again the court indicated what in its judgment was the.proper course to be pursued by the relator in the premises. Mr. Justice Ingraham, in the opinion of the court, says, 41 St. Rep., 162: “ When the respondent had determined to disaffirm the resignation, he could have presented the case to the board with a state- -■ ment of the circumstances which induced him to sign the resignation, and a request that they would reconsider their official act ^ in accepting his resignation. It would then have been their duty to ascertain whether the respondent had truly stated the facts, and to determine whether or not their action should be reconsidered and the respondent reinstated.” And, in the opinion of the presiding justice on the same appeal, it is said: “If the so-called resignation was altered and added to, as is claimed by the relator, it was no resignation at all, as such alterations were fraudulent, and could not alter the character of that paper, and in fact destroyed whatever validity it might have possessed.”

We thus have an authoritative expression of opinion on two subjects connected with this matter. First, that, if the facts as claimed by the relator are established, the resignation is not valid, and may be avoided, if it is not altogether void; and, secondly, that the proper method of obtaining redress was to apply to the board of police commissioners to reconsider its action and to reinstate the petitioner. That course has now been pursued. On the 1st day of December, 1891, the relator presented a written request and demand to the respondents that they reconsider the acceptance of the resignation. The general grounds of the request are stated in that writing, and the details are set forth in an affidavit served therewith, to which was annexed a copy of the stenographer’s minutes of testimony and findings of the jury on the trial of x the issues in the mandamus proceeding. On the 29th day of January, 1892, the police commissioners acted upon the request and demand of the 2'elator of December 1, 1891, and refused to comply with it That application was made under the express declaration of this court that it was the proper course to pursue, and upon its denial a writ of certiorari was granted to review the decision of the commissioners, and thus the whole subject is brought again before us.

The return of the commissioners as first made was defective and insufficient. As finally made, it consists of a sworn statement of their action, and of the reasons governing it, and of documents, including the stenographer’s minutes of the trial of the mandamus issues which had been furnished them by the relator. Those ; minutes were intended to be evidence upon which the commissioners should act They were sent originally to the respondents to substantiate in detail what Was generally set forth in the affidavit of the relator, and showed not only the findings of the jury in the mandamus proceeding, but also all the testimony taken by both parties on the trial of the issues therein. The commissioners were parties to that proceeding, made a return to the writ, were represented by counsel, and contested it. But that does not make such minutes absolute evidence if the commissioners required further, or, as it is called, “ common law ” proof. If we could hold that those minutes and the evidence thus furnished to the commissioners was such as they were obliged to receive, we might be able to dispose of the case at once on the merits. But we do not feel justified in holding that these documents thus placed before the commissioners constituted such technical legal evidence as required them to reinstate the relator upon that evidence alone. We think the respondents were not bound to accept the affidavits of the relator, nor the evidence of the witnesses taken in the mandamus proceedings, as absolute and conclusive proof of the facts upon which the relator demanded reinstatement; but, at the same time, the respondents could not arbitrarily reject the relator’s, application, made, as stated, in pursuance of a direct decision of this-court upon that point, and without allowing him that opportunity to be heard which was the very ground and essence of the decision made in the former proceeding. It is not a sufficient excuse for the respondents to say that they never refused to hear the relator. He did all that he possibly could have done, or that in reason could have been required of him. He demanded the right to be heard, and submitted papers which might have been sufficient in this matter to satisfy the commissioners morally, and he insisted upon an opportunity of presenting his whole casefor that-re-examination or rehearing to which this court held he was entitled. The respondents never afforded him that opportunity to which he was so entitled. If, upon such opportunity being afforded, the respondents had demanded the production of his witnesses, we think they would have had a right to inquire into the whole matter de nova; but without such an opportunity (as stated before) they could not make such a summary disposition of this matter as that to which we have adverted, and which was palpably wrong. The conclusion we reach is that the proceeding of the respondents should be reversed, and the matter sent back to them for further action, with instructions to notify the relator of the time and place at which his application will be heard, and an opportunity offered him to present his testimony. No. costs of this application to either party.

Yan Brunt, P. J., concurs.

O’Brien, J.

I concur. The only serious question is that raised as to the statute of limitations. Section 272 of the New York consolidation act provides that an action or proceeding, at law or in equity, “to restore or reinstate to the police force any member or officer thereof,” “ shall be commenced within two years after the cause of action shall have accrued.” Section 2125 of the Code of Civil Procedure requires that a writ to review a determination must be granted and served within four calendar months after the determination. In People v. MacLean, 46 St Rep., 99, it was held, construing § 2125 of the Code, that, where it appeared on the face of the petition that the statutory time had expired, the court needed no other proof, and the board of police was not required to make a return and set up the failure to bring the proceedinga within the time limited, but the court should dismiss such application, having no jurisdiction to issue the writ

As the original action of the commissioners was taken in August, 1889, upon accepting what appeared to be a resignation of the relator, if the period of limitation began to run from August, 1889, then it is clear, under either and both of the sections referred to, that this proceeding taken in February, 1892, was too late. It must be remembered, however, that the proceeding taken in February, 1892, was to review the determination of the board of police commissioners made in January, 1892. The original action of the commissioners in 1889 was taken in ignorance of the facts, and was based upon what, in view of the subsequent light thrown about the circumstances relating to the resignation, must be held to have been a nullity. In the former proceedings before this court the denial of relief to relator was, in effect, based on the fact that there had been no final determination by the board. Although such facts were before them, the commissioners did not net until January, 1892, and then, having finally determined to •deny relator’s application, the statute of limitations commenced to run, and this proceeding in February was within the statutory period. I do not, therefore, regard the point as well taken, that, by reason of the statute of limitations having run, the court is without jurisdiction to afford relator such relief as he is entitled to on the merits.