text:
    Evelyn McConnell, Pl’ff, v. William Bostelmann, Def’t.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Nuisance-—Awning.
    One who maintains a nuisance in the shape of an awning in front of his premises from which water is thrown upon the sidewalk is liable for injuries sustained, by a person who falls upon the ice formed by the freezing of the water.

      2. Same—Evidence.
    An admission in the answer that defendant owned the premises, with proof that his name was over the saloon which occupied the entire store-floor of the building and that he had been seen in and about the building for four or five years, is sufficient to establish that he was the person who-maintained the nuisance.
    Motion for new trial on exceptions ordered heard at the general term in the first instance, after dismissal of the complaint.

      Tillou & Buck, (William L. Snyder, of counsel), for pl’ff; James Demarest (Thomas P. Wickes, of counsel), for def't;
   O’Brien, J.

The action is brought to recover damages for personal injuries sustained by plaintiff in slipping upon ice formed upon the sidewalk in front of premises owned by defendant, situated at the corner of Liberty and West streets. In addition to alleging the ownership of the premises, which was admitted, the complaint avers that such premises were unlawfully constructed,, with an awning over Liberty street, from the roof of which the water flowed into the gutter on the outer edge, and from such gutter was discharged through short spouts or elbows in midair more than twelve feet above the sidewalk,and descended and flowed, or was blown upon the sidewalk and froze thereon, rendering it slippery and unsafe. Such structure or awning, it is alleged, was an encroachment and an obstruction upon the street, and that by reason thereof the water from the roof was discharged upon the. highway, froze upon the sidewalk, and formed the ice which caused the plaintiff’s fall and her subsequent injuries. In addition, the complaint alleged that the defendant negligently permitted the. sidewalk to remain in such slippery condition, and that plaintiff’s injuries were received in consequence of such negligence. The character of the structure, awning and spouts, and the fact that Liberty street was much traveled and used by the ptiblic, were conceded. The evidence shows that on the 4th of March, 1891, it snowed and turned to sleet,and up to midnight four and two-tenths-inches of snow had fallen. On the 5th, the day of the accident, the sun was shining brightly and the wind was blowing, and it-was freezing in the shade and thawing in the sun. The accident happened in the afternoon. A number of people came off the train, crossed the ferry, and were going up Liberty street, among whom was the plaintiff, accompanied by a friend. These latter had crossed West street, and were passing on. Liberty, when the plaintiff slipped and fell. The awning posts were covered with ice, and one of the witnesses testified that there was a sheet of ice from the fresh water that had recently fallenthat quite a volume of water was coming down; the water made the ice and sidewalk slippery. Upon the motion to dismiss the grounds were not suggested that the plaintiff had failed in her proof in showing that the structure was maintained by the defendant, or that the ice which formed on the sidewalk was the result of the water which was allowed to flow from the spouts, and which either fell, or was blown in the shape of spray, upon the sidewalk; but the broader ground was urged, and it was upon this latter that the learned trial j udge disposed of the case, dismissing the complaint, that the city, and not the defendant, would be liable.

In thus disposing of the case the learned trial judge, among others, relied upon the cases of Moore v. Gadsden, 87 N. Y., 84, and City of Rochester v. Campbell, 123 N. Y., 405 ; 34 St Rep., 77. Those, however,' were cases of negligence in which the liability was predicated upon the neglect of the defendant to discharge some duty which he owed-to the plaintiff; and the principle of those cases is that where a person is injured through the neglect in not removing snow and ice which has accumulated upon a sidewalk, or in not repairing a street which has got out of repair, his remedy is against the city; or, as said in Moore v. Gadsden, 87 N. Y., 87: “ If, by reason of obstruction which it was the duty of the city or its officers to remove, it failed to do its office, the defendant cannot be made liable.” This case, however, directly recognizes the liability of one who maintains a nuisance to respond in damages to one injured thereby, for, as therein said, “the general doctrine is that the public are entitled to the street or highway in the condition in which they placed it, and whoever renders the use hazardous by placing anything upon it is guilty of a nuisance.” While, therefore, if this had been the ordinary case of the accumulation of ice and snow upon the sidewalk, or if the complaint were based upon negligence in allowing such snow or ice to accumulate, then the cases referred to would have applied, and the conclusion reached by the learned trial judge would have been right. But, as shown by the complaint and the proof, the plaintiff in addition claimed, and the theory of her action was, that the injuries from which she suffered were the direct result of the maintenance of a nuisance by the defendant. The distinction between actions for nuisance and actions for negligence is very clearly pointed out in the case of Dickinson v. Mayor, 92 N. Y., 585, in the following language: “The allegations in the complaint tend to establish that the defendant neglected to perform a duty by not removing the ice and snow from the walk. This was not an averment for keeping, maintaining and suffering a nuisance, but merely for negligence in not removing the ice and snow. The complaint was not for a positive wrong committed by the defendant, but for an injury sustained by reason of the defendant’s negligence. The authorities establish a distinction between an action for wrong and an action for negligence.”

While, therefore, the principle of law which is to govern in actions for negligence may be regarded as settled by the cases referred to by the trial judge, we think an equally long line of decisions have settled the principle that should be applied in actions for inj uries arising from nuisances.

Thus, in the leading case of Congreve v. Smith, 18 N. Y., 82, which is cited with approval in Moore v. Gadsden, supra, it is said: “ The general doctrine is that the public are entitled to the-street or highway in the condition in which they placed it; and whoever, without special authority, materially obstructs it, or renders its use hazardous bv doing anything upon, above or below' the surface is guilty of a nuisance; and, as in all other cases of public nuisance, individuals sustaining special damage from it, without any want of due care to avoid injury, have a remedy by .action against the author or person continuing the nuisance. Ho ■question of negligence can arise, the act being wrongful. It is as much a wrong to impair the safety of a street by undermining it as by placing objects upon it. There can be no difference in regard to the nature of the act, or the rule of liability, whether the fee •of .the land within the limits of the easement is in a municipal corporation, or in him by whom the act complained of was done. In either case the act of injuring the easement is illegal.”

See, also, McGoldrick v. N. Y. C. & H. R. R. R. Co., 49 St. Rep., 566, and Simmons v. Everson, 124 N. Y., 318; 36 St. Rep., 265.

As the evidence presented, therefore, tended to prove that the ■defendant was maintaining a nuisance which was the proximate cause of the plaintiff’s injuries, we do not think that the cases relied upon by the learned trial judge are applicable, or that the disposition made was right.

In order to establish the cause of action it was necessary to .show (1) that the awning and leaders of which complaint is made were maintained by the defendant; and (2) that the ice which- accumulated on the sidewalk, and which resulted in plaintiff’s fall, was formed from the water or spray which flowed from the spouts attached to the awning. As to the first proposition, the evidence was, we think, sufficient. It was admitted by the answer that the property belonged to the defendant, and the diagrams introduced in evidence show that the name of the defendant was over the ■doors of the saloon, which occupied the entire store floor of the building in question. One witness also testified that he had seen the defendant in and about the saloon and building for a period of four or five years. As to the second proposition, the evidence tending to establish it is slight, but there is some evidence tending to show that the ice upon which plaintiff fell was occasioned by the discharge of the water from the spouts upon the sidewalk. Under the circumstances, therefore, it is concluded that the evidence before the court presented a question which might have been submitted to the jury. The exceptions should be sustained, and the motion for a new trial granted, with costs to abide the event.

Follett and Parker, JJ., concur.


source: Caselaw Access Project

author: Van Brunt, P. J. Follett, J., (dissenting).

license: Public Domain

text:
    The People ex rel The Press Publishing Co. v. James J. Martin et al., Police Com’rs.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Election—Publication ov list oe candidates—Designation oe newspapers.
    The board of police commissioners of New York, in determining the newspapers to publish the list of candidates, under § 61 of chap. 680, Laws 1892, are not restricted to evidence, but are to get the best information they may obtain, leaving it discretionary with them as to what sources of information they may consider best; their duties are therefore ministerial, and not judicial, and their action cannot be reviewed by certiorari.

      3. Same.
    If their action could he reviewed, their refusal to consider an additional affidavit presented by a newspaper on the last day of the sitting, when it was too late to verify the facts stated therein, would not furnish ground for reversal.
    (Follett, J., dissents.)
    Certiorari to review a determination of the board of police of fhe city of Mew York, designating certain newspapers for the publication of election notices.

      J. M. Bowers, for relator; G. L. Sterling, for resp’ts.
   Van Brunt, P. J.

I cannot agree in the conclusion at which Mr. Justice Follett has arrived in the case at bar. It will. be observed that in the statutes considered and the cases cited by him the language was essentially different from the statute under which this proceeding arises. In the case of People v. Brennan, 39 Barb., 651, the language of the statute (chap. 227, Laws 1863, § 2) was: “ Mo portion of the sums which shall hereafter be raised by tax or assessment in the city and county of Mew York shall be paid for advertising, except the same shall have been incurred for advertisements in the newspapers authorized by the mayor and comptroller of the said city, who shall designate four papers having the largest daily circulation, and any six others in their discretion, not to exceed ten in all.”

The mayor insisted that the term “ daily circulation ” meant the largest general circulation; and the comptroller, that it meant the largest circulation within the city ; and the question discussed by the court was as to which of these contentions was correct. It is true that in discussing the question it was said: “As the determination of the question of fact which of the four papers have the largest daily circulation involved a consideration of evidence, and an adjudication upon such evidence by the mayor and comptroller, we do not see upon what principle a mandamus can issue, directing the comptroller to unite with the mayor in designating four certain papers, naming them in the mandamus.”

But, as already suggested, the language then under consideration was essentially different from the one under which this application arises. By the law of 1863 the mayor and comptroller were compelled to designate four papers having the largest daily circulation. There was no provision as to what evidence or proof they should take, in order to establish the fact of circulation; and the courts held that they were bound to take evidence upon that point, which necessarily meant legal evidence, and to decide upon such evidence. In the case at bar the provision of the statute is that the board, in selecting the respective papers for such publication, shall select those which, according to the best information the board can obtain, have the largest circulation within said city; clearly giving the board the greatest latitude as to the sources from which information is to be derived, and expressly excluding the idea that legal evidence only could be acted upon. This statute was passed, and this language was used, evidently because of the difficulties arising from the strict phraseology of the-act of 1863, and other acts of a similar character; and it was the. manifest intention of the legislature to give the board greater discretionary powers than those which either of those previous acts had conferred. So, in the case of People ex rel. Francis v. Common Council of Troy, 78 N. Y., 33; § 3, tit. 2, ch. 813, Laws 1873, was under consideration, which provided that the common council shall designate not to exceed four papers having the largest circulation in the city, in which said advertising shall be done; and in that case it was held that, no mode of ascertaining which papers have the largest circulation being pointed out, the question was left open as one of fact to be determined by the common council, and that the determination of such question of fact was a judicial duty, and, though the common council might be compelled by mandamus to determine the facts, it could not be directed to decide in a particular way, however clearly it might be made to appear what the decision ought to be. It appeared in that case that the common council designated the papers without any evidence before it as to which had the largest circulation, and it was held that it was the duty of the council to make the designation on evidence, and that its duties were judicial, and not ministerial. But in the case at bar they are not restricted to evidence, but are to get the best information they may obtain, thus leaving it discretionary with the board as to what sources of information they may consider to be the best. Because the court is of opinion that better information may be obtained, it cannot control the judgment of the board as to what it considers best.

And furthermore, in the case at bar, the relator had furnished proof which was clearly insufficient to entitle it to the designation ; and at the last meeting of the board¡ on the last day on which the designation could be made, it"presented additional and amended affidavits, claiming that the board, without having any opportunity to test in any respects the statements therein contained, was bound to accept them in their entirety. I do not think, after this relator had presented its evidence, and the board was acting upon it, upon the last day in which it had any authority to act, that the presentation to it of an affidavit can form the foundation of a reversal of such action. Such a ruling would make* it impossible for the board to guard against the presentation of alleged facts which might have no existence in reality, or to apply any ordinary tests to the alleged proof in order to ascertain its value. I am of- the opinion that the writ should be dismissed.

O’Brien, J., concurs.

Follett, J., (dissenting).

This is a special proceeding, begun by a writ of certiorari, for the purpose of reviewing the final determination of the board of police in designating certain newspapers in which lists of nominations of candidates for offices to be filled at the general election of 1892 were to be published, and in refusing to designate the World, a newspaper published by the relator, as a paper in which such lists should be published, and in refusing to receive evidence as to which papers had the largest circulation. Mo material disputed question of fact is presented by the writ, the papers on which it was granted, and the return filed in obedience to the writ. The World, the Sun, .and the Daily News are newspapers published in the city of New York, which, preceding the general election of 1892, advocated the principles of the political (Democratic) party which at the last preceding election cast the largest number of votes in this state. The Tribune and the Press are newspapers published in said city, which, 'preceding the election of 1892, advocated the principles of the political (Republican) party that at the last preceding election cast the next largest number of votes in the state. On the 6th of November, 1892, a general election was held in this state, pursuant to § 8,- chapter 680, Laws 1892 (the Election Law). Prior to October' 25th of that year certificates of nominations of candidates for offices to be filled by the voters residing in the city of New York were filed with the board of police commis-' sioners of that city, pursuant to § 58; and prior to that date the secretary of state, pursuant to § 60 of said act, certified to said board the nominations for state offices to be filled at that election. On the 6th of September, 1892, the New York Press Association, which publishes the World, filed an affidavit with the board of police, which stated that the World was a newspaper published in the city of New York; that it advocated the principles of the political party that at the last preceding election cast the largest number of votes in this state; that the paper had been published for several years; and that it had the largest circulation of any newspaper published in said city, in the state of New York, or in the ÍTnited States. At a meeting of the board of police held October 25, 1892, a resolution was adopted, providing that the lists of nominations filed and certified as aforesaid should be published in the Daily News and the Sun, newspapers advocating the principles of the political party which at the last preceding election cast the largest number of votes in this state, and in the Tribune and Press, newspapers advocating the principles of the political party that at the last preceding election cast the next largest number of votes in this state. It is alleged in the petition upon which the writ was granted that: “ Said board of police commissioners of the city of New York, at the meeting of the said board on the 25th day of October, 1892, when said designation of four certain newspapers for the publication of the list of nominations above mentioned was made, refused to allow the production of evidence showing that the circulation of the World in the city of New York was larger than that of any other daily newspaper published in said city, and that its circulation was 75,000 in excess of that of the Sun or the Daily News, although such evidence was offered, and that the said board of police commissioners of the city of New York, on said 25th day of October, 1892, refused to allow evidence to be produced showing that the circulation of the World was larger than that of any other newspaper published in said city, and that on said 25th day of October, 1892, no affidavit relating to the circulation of the Sun, the New York Daily News, the Tribune and the New York Press, or to the circulation or any other newspaper, except the affidavit hereto annexed, and marked 1 Exhibit B,’ was on file in the office of the said board of police commissioners in the city of New York, all of which appears by the affidavit of John Harris, hereto attached. Deponent further says that none of the four newspapers so designated as aforesaid are newspapers having the larger circulation within the city of New York.”

This allegation, not being denied in the return, must be deemed to be true for the purposes of this review. " Code Civ. Pro.,. § 2133; People ex rel. Peck v. Commissioners Dept. Fire & Buildings, 106 N. Y., 64; 8 St. Rep., 634; People ex rel. McLaughlin v. Commissioners Dept. Fire & Buildings, 106 N. Y., 676; 10 St. Rep., 666.

It is also alleged: “ That said board did not obtain any information, as a board, relative to the newspapers having the largest circulation within said city, other than that furnished by the affidavit of John Harris, a copy of which is hereto annexed,, marked 1 Exhibit B.,’ as deponent is informed and verily believed.”

Exhibit B. is the affidavit filed by the relator September 6, 1892.

The commissioners, in their return, say: “ The said board, in selecting the respective papers for the said publication, selected those which, according to the best information it could obtain, had the largest circulation within the city and county of New York.”

A copy of the record of the proceedings of the board upon making the designation is set out in the return, and it does not appear that they acted upon evidence.

The principal questions involved in this controversy are: (1) Is the action of the board, under the statute, judicial, and so subject to review by this writ, or is it ministerial, and, therefore, not re viewable in this proceeding? (2) Has the Press Publishing Company sufficient interest in the determination to entitle it, as relator, to prosecute this proceeding ? (3) In case the first and second questions are determined in favor of the relator, should the writ be quashed because the time during which the lists were to be published has passed ?

It is well settled in this state that when an officer or board is authorized to act in a ministerial capacity, he or it may be compelled to act by a writ of mandamus; but if action involves the exercise of discretion, it is equally well settled that how the discretion shall be exercised cannot be controlled by the court.. When the act is judicial, it is the subject of review by a writ of certiorari. Whether an action is judicial or ministerial largely depends upon the question, must the determination be made upon evidence? The following is the section of the statute under which the designation was made :

“ Sec. 61. Publication of nominations. At least six days before an election to fill any public office * * * the board of police commissioners of the city of New York * * * shall cause to be published in not less than two nor more than four newspapers within such * * city, * * * a list of all nominations of candidates for offices to be filled at such election, certified to such * * hoard by the secretary of state, or filed in the office of such * * * board. * * * One of such publications shall be made in a newspaper which advocates the principles of the political party that at the last, preceding election cast the largest number of votes in the state; and another of such publications shall be made in a newspaper which advocates the principles of the political party that at the last preceding election cast the next largest number of votes in the state. The * * * board, in selecting the respective papers for such publication, shall select those which; according to the best information he [board] can obtain, have the largest, circulation within such * * * city. In making additional publications the * * board shall keep in view the object of giving information, so far as possible, to the voters of all political parties; and in no event shall additional publications-be made in two newspapers representing the same political party.”

That the action of the board, under the section of the statute-quoted, is judicial, seems to have been conclusively settled in this state.

Section 2, chap. 227, Laws 1863, provided: “ Sec. 2. Ho portion of the sums which shall hereafter be raised by tax or assessment in the city and county of Hew York shall be paid for advertising, except the same shall have been incurred for advertisements in the newspapers authorized by the mayor and comptroller of the said city, who shall designate four papers having the largest daily circulation, and any six others in their discretion, not to exceed ten in all.”

The mayor insisted that the term “daily circulation” meant the largest general daily circulation; and the comptroller, that it meant, the largest daily circulation within the city. Upon the application of the mayor, the special term granted a peremptory writ of mandamus commanding the comptroller to unite in designating four certain papers having the largest daily circulation. The order granting the writ was reviewed at general term, People v. Brennan, 39 Barb., 651, where it was held that the duty imposed, by the section above quoted was not ministerial, but judicial, requiring the consideration of evidence; and the writ was so modified that the comptroller was required to meet with the mayor, aud designate four papers having the largest general daily circulation. In discussing the question, it was said : “But as the determination of the question of fact which four papers have the largest daily circulation involves the consideration of evidence, and an adj udication upon such evidence, by the mayor and the comptroller, we do not see upon what principle a mandamus can issue, commanding the comptroller to unite with the mayor in designating four certain papers, naming them in the mandamus.”

This case was reviewed at considerable length, and approved, in People ex rel. Francis v. Common Council of Troy, 78 N.Y., 33, which arose over the construction of a clause of § 3, tit, 2, ch. 813, Laws 1873, which provided that: “ The common council shall designate not to exceed four newspapers having the largest circulation in the city, in which the city advertising shall be done.”

Upon proof that the Troy Times had the largest circulation in the city of Troy, a peremptory writ of mandamus was granted at special term, commanding the common council to designate that newspaper as one of those in which the city advertising should be done. The order of the special term was affirmed by the general term, 17 Hun, 20, but it was reversed in the court of appeals on the ground that the duty imposed on the common council by the clause quoted was not ministerial, but judicial. It was said: “Ho mode of ascertaining which papers have the largest circulation is pointed out by the statute, and consequently that question is left open, as one of fact, to be determined by the common council.”

It was also held: “ Where a subordinate body is invested with power to determine a question of fact, the duty is judicial; and, though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be.”

In the last case cited, as in the one at bar, the common council designated the papers without any evidence before it as to which had the largest circulation ; and on the same day, but after the designation had been made, the proprietors of the Troy Times presented to the common council an affidavit showing that it had the largest circulation in the city, but that body refused to reconsider its action. Under the statutes construed in the cases cited, it was distinctly held that it was the duty of the boards to make the designations on evidence, and that their duties were judicial, and not ministerial. The procedure by which the'board of police must be guided in making its designation is much more definitely pointed out in the statute under which they acted than was the procedure under either of the sections considered in the cases cited, and clearly indicates that it is the duty of the board to act on evidence. The provision is:

“ The * * * board, in selecting the respective papers for such publication, shall select those which, according to the best information he (the board) can obtain, have the largest circulation within such * * * city.”

The word “shall” is mandatory, and, considered in connection with the context, it cannot fairly be construed to mean “ may.” What shall the board do? The language of the statute furnishes the answer: (1) It shall determine which papers advocate the principles of the two political parties which cast the largest number of votes at the last election; (2) which of those papers have the largest circulation in the city. How shall these questions be determined? Again the statute answers the question: Upon “the best information he (the board) can obtain.” The information is to be obtained, and it is to be the best. The best information as to which of several newspapers has the largest circulation cannot, under any authority, legal or metaphysical, be intuitive, or evolved from the inner consciousness of the members of the board. Heither have they any right to guess what the fact may be. But it is the duty of the board to obtain by inquiry, and receive such evidence as may be offered as to which newspaper has the largest circulation. The best information can be acquired from persons having precise knowledge of the subject, and from the books of the papers. Such evidence was offered to the board, but it refused to receive or consider it; and in doing so it violated a duty which it owed to the public, and perhaps, which is the next question, a duty which it owed to the relator.

Has the relator a sufficient interest in the determination to entitle it to prosecute this proceeding ? By chapter 287 of the Laws of 1884, the provision in the charter of the city of Troy which was discussed in People ex rel. Francis v. Common Council of Troy, supra, was amended so as to read as follows:

“ The common council shall at its second regular meeting after the general election in each year, designate not to exceed four-newspapers, published in said city, and having the largest circulation within its corporate limits, in which shall be published all the municipal advertisements, official notices, legal notices, and the common council proceedings, including all advertisements and notices emanating from the common' council, or from any department of the city government, or any officer of the city, except as is otherwise provided in section six of chapter thirty ■of the Laws of eighteen hundred and eighty. The papers so designated shall be known as official newspapers. The oath of the publishers of said newspapers, and the business records of such newspaper offices for the three months preceding such ■designation, shall be required by the common council as confirmatory of the actual circulation of the said newspapers, before such designation is made by the common council.”

The common council, in defiance of this statute, designated certain newspapers without receiving any evidence as to which of the papers published in the city had the largest circulation therein. This action was taken on the theory that the statute was not mandatory. The publishers of the Troy Times obtained a writ of certiorari for the purpose of reviewing the action of the common council. It was alleged in the petition that the Troy Times, when the designation was made, had, and for many years previous had, the largest circulation of any newspaper published in that city. The position was taken in behalf of the common council that the relators had not such an interest in the question determined as to entitle them to review it. In discussing this question, the court said: “ It is urged that, however gross the error, the relators have no standing to correct it, for the reason that the duty enjoined upon the common council is enjoined for the benefit of the public, and not of the relators, and that, if the members of the common council willfully fail in their official duty, they may be proceeded against by criminal prosecution. Without contesting their liability to criminal prosecution, and conceding that, if the relators sought a personal recovery against the members of the common council, the latter might find immunity under shelter of their judicial action, we think the relators have shown sufficient interest in this designation to entitle them to demand that erroneous action be vacated, and the way cleared for legal action. Offices are created for the public good, but the rights of the officer are recognized and enforced. It is a part of our scheme of government to secure the co-operation of private interest in demanding the observance of law. The relators have not merely that interest which is common to all the citizens of Troy, but they have that special interest which is peculiarity and, if their allegations are true, exclusively their own, in being entitled to the designation which the law commands and awards. The law provides, not, it is true, for their interests, but for the interests of the public, that their claims to thi-s designation, and its emoluments, shall be examined upon prescribed evidence, and if found to be valid, shall be allowed.” People ex rel. Francis v. City of Troy, 17 St. Rep., 661.

In this reasoning we concur. Upon the question of interest, it is alleged by the relator, and the allegation is not denied in the return, that the publication of these lists “ is of large pecuniary value to the paper that may be designated to publish the same, to wit, of the value of the sum of $12,880 and upward ; and the Press Publishing Company has been deprived, by the aforesaid act of the board of police commissioners of the city of New Y or!?, of such pecuniary return.”

The evidence shows that the World had a larger circulation than any other newspaper published in the city of New York, which, if true, with the undenied allegations referred to, establishes that it had a pecuniary interest in the determination of the question. Under the statutes which provide that soldiers shall be entitled to certain appointments in preference to those who did not serve in the army, it has been repeatedly held that a veteran who had been refused an appointment to which he was entitled under the act has a sufficient interest in the question to review the action of the appointing power, though he is but one of a class upon whom the preference is conferred. Three Iowa cases, Welch v. Supervisors of Mahaska Co., 23 Iowa, 199 ; Smith v. Yoram, 37 id., 91; Iowa News Co. v. Harris, 62 id., 501, are cited to susain the proposition that the relator has not sufficient interest in the determination to entitle him to review it. In the case last cited it was said: “ The public might suffer from the wrongful action of the board, but we are not able to see that the plaintiff would, unless we could presume that the compensation allowed would be overcompensation, and that we could not do.”

The conclusion reached in this case, that a person has no interest in the performance of a service because it must be presumed that the compensation provided is an exact equivalent for the services, does not seem to be well founded. In the first place, the premise was not established; and, secondly, if it had been, it does not follow that a person has no right to redress when prevented from performing a contract or rendering service which he is entitled to perform or render, because the compensation is no more than a fair equivalent for the service. For the infringement of his right he is at least entitled to recover nominal damages, and the question as to how much he may recover is one quite apart from his right to maintain an action.

In Welch v. Supervisors of Mahaska. Co., supra, it was said: “ The duty (to designate the newspapers) is imposed upon the board. They are the custodians of the power. But no one can insist upon its performance or exercise because he happens to be at the time the owner and proprietor of a newspaper.”

The correctness of this proposition is admitted. The person complaining must show, either that his paper should have been designated, or that he had been denied the right given by the statute to have his claim to be so designated considered.

In Smith v. Yoram, supra, the opinion of the court upon this question rests solely upon the authority of Welch's case, no additional reasons being given. The judgment, however, is not placed i solely on this ground. It is said : “ All other sources of information are open to them (the board), so that, even if plaintiff had such an interest as to enable him to maintain the proceeding, we cannot' say, upon the affidavits of the respective publishers, which is all the record in the evidence, that the board did not decide correctly, for they may have had other evidence, not of record, and which probably controlled their action.”

We think the relator had, in the case at bar, sufficient interest in the determination made by the board of police to entitle it to-review the decision.

This brings us to the final question: Should the writ be quashed because the time during which the lists were authorized to be published has passed? The determination was made October 25th, and the writ was granted November 2, 1892, and the return was filed on the 16th of December following. It is insisted in behalf of the board that this case falls within the principle of the decisions which hold that, when a final determination has been so far executed that a judgment under a writ would accomplish nothing, it should be quashed. This rule has been so frequently applied to proceedings under writs brought to compel the inferior tribunal to affirmatively perform a duty relating to a private right that it may be said to be a well-settled canon of procedure in this state. But the proceeding before us was not instituted solely for the purpose of compelling the board of police to order the lists printed in the World, but to obtain a reversal of an erroneous decision, which, when made, was injurious to the then existing rights of the relator, would be injurious as a precedent, and as a bar to proceedings, civil or criminal, against the members of the board, and it does not fall within the principle above stated.

In People ex rel. Porter v. Tompkins, 40 Hun, 228, it was said:

“ When it, the writ, involves the inquiry whether the action and determination were legal, and should be set aside or confirmed, it may be seen that the writ may be effectual after the powers of the tribunal or officers have ceased, as to the matter in question, because it is a mere matter of review; but when the purpose of the proceeding is to have the direction of the court for those to whom the writ is issued to do some act, by way of the correction of an error, it must, we think, be within the power of such officer or tribunal to perform the act.”

In People ex rel. Seymour v. Canal Board, 7 Lans., 220, a writ of certiorari was issued to review the proceedings of the canal board in awarding the damages to the relator. The appraisers of canal damages had awarded the relator upwards of $4,000, which the canal board reduced by more than $1,000. After the writ was issued, and before a return thereto was made, the canal board rescinded its resolution, and vacated its modification of the determination of the appraisers. The point was taken that the writ should be quashed. It was held that: “ The fact that since the issuing of the writ the canal board, recognizing the invalidity of the decision, has rescinded the resolution by which it was made, can have no effect upon the relator’s rights in the premises. He has the same right to a judicial construction of the act complained of as before.”

The decision of the canal board was reversed and set aside, as null and void.

In Re Bracket, 27 Hun, 605, a writ of certiorari was issued to review the conviction and sentence of the relator by a court-martial. Before the hearing, the court-martial amended its proceedings, and revoked the warrant issued for the collection of the fine. Notwithstanding, it was held that the relator was entitled to a judgment reversing the proceedings of the court-martial, with costs.

In People v. New York Cent. & H. R. R. R. Co., 28 Hun, 543, the freight case, a writ of.mandamus was refused at special term. 63 How. Pr., 291. On the review of the order at general term, it was insisted that the time had passed when anything could be ordered to be done under the writ. It was said : “It is suggested that the time has now passed when such a writ can be of any valuable effect. This is probably so, but we are governed by the record in disposing of the appeal, and not by subsequently occurring events. The appellants labor now under a judgment alleged to be injurious to the rights they possessed when it was pronounced, and harmful to them as a precedent. If erroneous, they are entitled to have that judgment reversed, and to be indemnified, in the discretion of the court, for the costs incurred on the appeal made necessary by the errors.”

The determination of the board of police was voidable when it was made, and then affected the relator’s pecuniary interests, and denied a right, and the relator is entitled to have it set aside. The sole object of this proceeding is, not to compel the board to correct an error by which the relator was pecuniarily injured, but its object, in great part, is to obtain a reversal of the decision of the board refusing to receive and determine the rights of this relator, and of all others similarily situated, upon evidence, so that in the future the duty which the board owes to the public, and to all persons and corporations having a pecuniary interest in its determination, will be discharged in accordance with the statute. Should an action be brought against the members of the board for damages, or a prosecution by indictment be instituted, their determination, which would be alleged to be judicial in character, would be interposed as a defense.

One of the chief objects of a writ of certiorari is to compel boards and public officers having judicial functions to keep within the jurisdiction conferred upon them, and to compel them to perform their duties according to the commands of the statute. If we are right upon the first two propositions, a public and a private wrong was committed by the determination, and there is no mode provided by law for a reversal of that decision, except by this proceeding. Under such circumstances, a court having general jurisdiction to review and correct the errors of subordinate tribunals should not cramp its authority within the narrowest limits, but hold that it is broad enough to correct the evil complained of, unless prevented by the force of some statute. The common-law power of this court to correct, by means of this writ, the errors of inferior tribunals exercising judicial or quasi judicial power is preserved by Code Civ. Pro., § 2120. The refusal of the board of police to receive evidence as to which of the papers were entitled to be designated, and to determine the question on evidence, was erroneous, and its determination illegal, and it is set aside, with fifty dollars costs to the relator.

Writ dismissed.


author: Finch, J.

text:
    Herbert Cecil Pelly, Resp’t, v. Francis S. Naylor et al., Ex’rs., App’lts.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Bills and notes—Fraud—Evidence.
    In an action upon a promissory note by a transferee, the defense was want of consideration because of fraudulent representations by the payee. On the trial it appeared that G., the payee, induced the defendant, with others, to organize a corporation for the purpose of manufacturing paints, which he represented to possess a number of valuable qualities; that a plant for their production would not cost over $5,000, and the cost would not exceed certain amounts;but they did not wholly rely on his representations and it was agreed that the payee, G., was to make certain tests of the process known only to him, and then if satisfactory these notes were to be given to him. He made the experiment and the notes were given him by their direction. The court refused to allow defendant to show that G., who alone held the secret of the process and solely conducted it, concealed ingredients, misstated them, falsely declared the cost and falsely represented qualities. Held, that there was but one sale and purchase, all that preceded it bore upon and tended to produce it, and it was error to rule that defendant was not at liberty to try to break the force of the test with which he had expressed himself satisfied.
    2. Same.
    It was not necessary for defendants to plead in their answer the fraud and falsehood in the test by G. It was simply rebutting evidence for the plaintiff.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff entered Upon verdict directed by the court.

      Eugene H. Pomeroy and Edward S. Clinch, for app’lts; Lucien Birdseye, for resp’t.

      Reversing 49 St. Rep., 791.

   Finch, J.

This action was brought to recover the amount of a promissory note, made by the defendants’ testator, Naylor, payable to his own order and indorsed by him to Thomas Griffiths, who indorsed the same before maturity to the plaintiff. The deposition of the latter, taken in England, was read upon the trial, and in it he testified merely that he took the note for value paid at the time and in good faith. He did not say what that value was, or state the circumstances attending the purchase, but practically swore to a legal conclusion drawn by himself from facts which he and his counsel chose to leave undisclosed. The defense pleaded and sought to be proved was a series of fraudulent representations and acts on the part of Griffiths by which the execution and delivery of the note was induced. Of course, until fraud upon the maker of the note existing at its inception was so far established as to raise a question of fact upon the point, the plaintiff was not bound to show the consideration or circumstances of his purchase, but would become bound to do that whenever the alleged fraud should be sufficiently proved. The burden would then be shifted upon him of showing the facts and circumstances indicating a purchase for value, in good faith and before maturity. But this case never reached that point, and could not reach that point because of the adverse rulings of the trial court, which seem to have rested largely upon questions of pleading, and which can only be examined to advantage after a full understanding of the facts.

Griffiths owned or controlled five articles in the nature of paints or enamels, made by a secret process known only to himself and his business associates. The complaint alleged and . the proof showed that, to induce Naylor and his associates to purchase the right to manufacture and sell the articles,- Griffiths represented them to possess a number of very valuable qualities ; that a plant sufficient for their production could be provided at a cost not in excess of $5,000, and that the cost of the manufactured articles would not exceed certain specified amounts. The evidence shows that Naylor did not wholly rely upon these representations, but made a conditional contract which, after reciting them all, provided that Griffiths should satisfy the vendees by an actual manufacture of the articles in this country that he had correctly represented their qualities and cost, and such vendees thereupon should complete the purchase. Griffiths came to this country to conduct the experiment, which necessarily could only be conducted by one possessing a knowledge of the process and its necessary ingredients. Before doing so, the general arrangement as to the mode, and manner of purchase was changed, and took the form of an incorporation composed of Griffiths, Naylor, Onderdonk and some others, to which the processes and formulas of manufacture were to be transferred, in consideration of which Naylor and bis associates were, among other things, to deliver to Griffiths three promissory notes, one of which is the note in suit. The new arrangement was put in writing and required that the stock and notes to be given to Griffiths by the purchasers should be placed in the hands of Edward S. Clinch, pending the test agreed upon, and to be delivered by him when “ it has been demonstrated that said specialties have the qualities respectively ascribed to them in a certain agreement * * * dated 27th of March, 1889.”

That was the conditional contract which contained the representations, so that it is quite clear that Griffiths stood at this point still the vendor. of the articles upon the representations made, and Naylor and others the intending vendees, but the sale and purchase still depending upon the actual experiment to be made. Griffiths made that experiment, and Naylor and Onderdonk, describing themselves as satisfied, directed Clinch to deliver the notes, which he thereupon did. It is thus quite ■certain that the note in question was delivered in reliance upon the truth of Griffiths’ representations as to quality and cost as demonstrated and confirmed by his experiment and test, and that the latter was a reiteration and reaffirmance of the original representations in a practical and demonstrative form. But the defendant sought to prove that the original falsehood and fraud was continued in and effectuated by the experiment and test as conducted by Griffiths, and that the agreed demonstration was cnly a fraudulent repetition of the original falsehoods made effective by the appearance of a demonstration not such in fact, and still dependent for its force upon the same representations originally made. To establish this the defendant offered to show and did show that Griffiths made the tests, and that neither Naylor nor Onderdonk took any personal part in them, and then asked who selected the needed ingredients, who mixed them, whether Naylor selected them or examined them, what time intervened between the making of the tests and the authority given to Clinch, upon what the parties relied in giving that authority, what were the statements made by Griffiths upon which Onderdonk relied, whether those statements were false or true, whether their truth was tested, and if so when and what was the result, and other similar questions, all of which were objected to and excluded. They involved an effort to show that Griffiths, who alone held the secret of the process and solely conducted it, concealed ingredients, misstated them, falsely declared the cost, and fraudulently represented qualities, and thus carried into and through the intended demonstration all the vice of the original falsehoods. Why this effort was not permitted to be made is shown in the opinions rendered. The trial judge argued that the notes were delivered by Clinch upon the certificate of Onderdonk and Naylor, and Griffiths had nothing to do with it. But the rejected evidence tended to show that Griffiths had everything to do with it, and perverted what was intended to be a fair and honest test into a continuation of the original falsehood, and so induced the certificate and delivery. The court further held that the element of fraud was eliminated from the case, and that it disappeared just as soon as the agreement and the certificate of Naylor and Onderdonk were produced. That is true on the face of the papers, but is not true upon the facts which the defendant offered but was not permitted to prove. The general term took a similar view, but sought to strengthen it by a further suggestion. They said that the previous negotiations were merged in the final agreement evidenced by the certificate and delivery, which agreement was complied with by Griffiths; that “ there is no proof in the case showing or tending to show that-any deception was resorted to by Griffiths, or misrepresentation made by him in making the tests,” which is true only because evidence to establish such facts was steadily and persistently excluded. The court add that even if there had been, the answer does not aver that the same was obtained from Clinch by fraud or misrepresentation.” Let us look into that. The answer avers not only the representations and their falsity, but proceeds thus: ‘‘And at the time he gave to the defendant Griffiths the note referred to in the complaint, and paid to him the money and notes hereinafter referred to * * * and in all his dealings with defendant Griffiths he believed and relied upon ” the representations “ which were at the .time they were made false and untrue.” Then the answer alleges that the changed form of the arrangement was adopted in reliance upon and in the belief in the representations made, and specially adds, as to the note in suit,' these words; “ This defendant, at the time of paying said cash,, and of making and delivering said notes and the payment of said two notes, believing and relying upon the representations made-by said Griffiths in respect to the said alleged processes or formulas, to the said articles, their usefulness and value, and the cost of manufacture, and of the plant as hereinbefore set forth,” The answer thus substantially alleged material representations which were false and fraudulent, which were intended to and did induce the purchase which the defendant relied upon when he made and delivered the note. That delivery was by Clinch, as the agent or trustee of the parties, but upon Naylor’s order, so that the answer avers fraud in inducing that delivery, and renders admissible all the facts tending to show such fraud down to that moment of time.

The criticism of the plaintiff’s counsel is that the answer should have pleaded fraud and falsehood in the test, - and omits any mention of it or allusion to it; and that fact was made the basis of a severe personal castigation of Clinch, who now represents the defendant, which we deem it but justice to say is excused or justified by nothing in the record before us. The defendant was not at all required to plead the fraudulent conduct of Griffiths in conducting the test. That was no part of defendant’s case. It was simply rebutting evidence for the plaintiff. When the defendant had alleged that the note was delivered in reliance, upon false representations, the plaintiff, beyond denying their falsity, could and did also say that, at least, Naylor did not rely upon them as he claimed, since he required an actual test or demonstration of their truth, which was made, and with which he declared himself satisfied, and in reliance upon which, and not upon the representations, the note was delivered. That rebutting evidence is very strong and forcible. -Unanswered, it is conclusive, but the defendant had the right to answer it if he could, to take the sting out, if that should be possible, to show that what was meant for a fair and honest test and what seemed to be such was in truth a continuation and repitition of the original fraud, carried from words into deeds, and made effectual by concealment, by falsehood, and by careful planned artifice. Such an answer is very difficult to establish, but we have no right to say that it is impossible or deny to the defendant the opportunity to prove it if he can. The test was to be and was conducted by Griffiths. The secret of the process was his, and what the test proved was still largely dependent upon what he-said about it.

The error in the trial seems to have originated in the idea of two separate, distinct and several contracts, one of which was-abandoned, and in the other of which no fraud was alleged. We deem that a mistake. There was but one sale and purchase. All that preceded it bore upon and tended to produce it. It was the-result of a single continuous transaction, changed only in form but never in fact or in substance so far as it ended in a sale. We are far from saying that the defendant will be able to break the force of the test with which he expressed himself satisfied, but it-was error to rule that he was not at liberty- to try, and that the facts were conclusive.

For that reason we are of opinion that the evidence offered was improperly excluded.

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

All concur.


author: Andrews, Ch. J.

text:
    The People, App’lts, v. Leonardo Larubia, Resp’t.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Jurors—Challenge.
    Error in overruling a challenge for cause is not available where defendant afterwards challenged the juror peremptorily and when the jury was. sworn there remained to defendant thirteen peremptory challenges unused.
    2. Homicide—Evidence.
    Upon a trial for murder committed with a pistol the People were permitted to show that three months previous to the homicide, on the occasion, of a quarrel between the mistress of the deceased and another woman, defendant came up and interposed in behalf of the former and drew a revolver. Held, error.
    3. Same.
    A witness was allowed to testify to the declarations of the mistress of deceased made to defendant some months prior to the homicide, as follows; “If Riverito’s life is not taken we will not be happy.” This was the only reference made to the deceased on the occasion. Held, error.
    Appeal from judgment of the supreme court, general term, first department, reversing the judgment of the court of oyer and terminer convicting defendant of murder in the second degree.

      Henry B. B. Stapler, for app’lts; Stephen S. Blake, for resp’t.
   Andrews, Ch. J.

It is a decisive answer to the assignment of error in respect to the ruling of the trial judge in the challenge-of the juror McKinley that the defendant subsequently challenged him peremptorily and that when the panel was full and the jury was sworn there remained to the defendant thirteen peremptory challenges unused. It is plain that the defendant was not harmed by any error which may have been committed by the trial judge on the trial of the challenge of the juror McKinley for cause. The objectionable juror did not sit on the trial. The defendant was not deprived of any advantage by being compelled to use a peremptory challenge in order to exclude McKinley from ■the panel. The jury which sat was, so far as appears, accepted by the defendant without objection. The defendant did not need the peremptory challenge used in excluding McKinley for any ■other purpose, as is conclusively shown by the fact that when the jury was accepted his right of exclusion had not been exhausted.

There has, we think, been some misapprehension as to the rule governing appellate courts in reviewing decisions of trial courts overruling challenges for cause made by defendants in criminal cases.

The cases of People v. Bodine, 1 Den., 281, and Freeman v. People, 4 id., 9, which were much considered, established the principle that an error in the ruling of a trial judge on the trial of a challenge for cause, interposed by the defendant, to which exception was duly taken, was not waived by the omission of the defendant to exercise the • right of peremptory challenge, although when the jury was completed he had peremptory challenges unused. It is unnecessary to repeat the argument by which this conclusion was maintained. A'reference .to the opinions of Judge Beardsley in those cases will disclose the grounds upon which the court rested its judgment.

This court in People v. McQuade, 110 N. Y., 284; 18 St. Rep., 288, followed the decisions in People v. Bodine and Freeman v. People upon this point. In the McQuade case three jurors challenged by the defendant for bias were held by the trial court to be competent, and to this ruling exception was taken by the defendant The challenged jurors sat as jurors in the case. This court held that the jurors challenged were not competent, and that the challenges should have been sustained. The point was taken in behalf of the People that the defendant could have challenged them peremptorily, and that no legal injury resulted from the erroneous ruling since it appeared that when the jury was sworn the defendant had four available peremptory challenges. The court overruled this contention upon the authority of the two cases referred to.

The question now presented is quite different. McKinley did not sit as a juror. The defendant did not see fit to stand upon his exception to his competency, but excluded him upon peremptory challenge, and when the jury was sworn he had a large number of peremptory challenges unused. The case of Freeman v. People is a precise authority also upon this question. In that case some of the challenged jurors were allowed to sit and others were peremptorily challenged after the challenge for cause by the defendant had been overruled. It was held that as to the jurors who, after challenge for cause had been overruled, were excluded upon peremptory challenge, the exceptions taken upon the trial of the challenge were unavailable. Beardsley, J., said: “Various exceptions were taken by the prisoner’s counsel to points made and decided in disposing of their challenges; and although the several jurors thus challenged were ultimately excluded by the peremptory challenges of the prisoner, it is now urged that these exceptions are still open to examination and review in this court. I think otherwise. The prisoner had the power and right to use his peremptory challenges as he pleased, and the court cannot judicially know for what cause or with what design he resorted to them. He was free to use or not to use them. as he thought proper; but having resorted to them, they must be followed out to all their legitimate consequences. Had he omitted to make peremptory challenges, his exceptions growing out of the various challenges for cause would have been regularly here for review. But he chose by his own voluntary act to exclude these jurors; he thus virtually and, as I think, effectually blotted out such errors, if any, as had previously occurred in regard to them.”

This decision of the court in Freeman v. People, that the use of a peremptory challenge after challenge for cause has been overruled precludes the party from availing himself of any exception taken on the trial of the challenge for cause, has never been overruled. The point was not involved in the McQuade case. The doctrine was explained and perhaps qualified in People v. Casey, 96 N. Y., 115, which held that it did not apply in a case where it appeared that before the jury was fully impanelled all the peremptory challenges o£ a defendant had been exhausted. In that case the court said: “Where, by the erroneous rulings of the court, a defendant is obliged to exhaust his peremptory challenges, it is clear he is harmed and has just cause to complain.” In People v. Carpenter, 102 N.Y., 240, 1 St. Rep., 648, the doctrine of Freeman v. People was in substance reasserted by Ruger, Ch„ J., but the decision was placed on the ground that the jurors challenged were competent.

The supreme court of the United States has applied the rule declared in Freeman v. People in a case where jurors challenged for cause were subsequently excluded on peremptory challenge, there being when the jury was sworn peremptory challenges unused. Hopt v. Utah, 120 U. S., 436; Spies v. Illinois, 123 id., 168. We think the doctrine of Freeman v. People, as explained in People v. Casey, is founded in reason and should be adhered to. If error was committed on the trial of the challenge for cause, it became merely technical when, after filling the panel, it appeared that the use of the peremptory challenge did no harm to the defendant. Section 542 of the Criminal Code declares: “After hearing the appeal the courtmust give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” This rule applies in respect to the point just considered. We are unable, therefore, to agree with the general term that error committed on the trial of the challenge for cause was available to authorize a reversal of the conviction. But we think the reversal should be sustained for error in the admission of evidence.

The defendant was convicted of murder in the second degree for killing one Riverito by shooting with a pistol on the evening of November 15, 1891. There was much doubt on the evidence as to the grade of the offense. The deceased sought the quarrel. He committed a gross indignity upon the person of the defendant. Afterwards, when the latter left the urinal, the deceased followed him and knocked him down, prompted apparently by jealousy. The deceased had formerly lived in illicit relations with one Rosa Dadurno, who afterwards lived with the defendant. There is great contradiction iti the evidence as to the circumstances of the shooting, and upon the point whether it occurred while the deceased was continuing his assault on the defendant or after he had discontinued it. The face and head of the defendant after the affray were found to be very much bruised and cut and his person was covered with blood. It was claimed that this in part at least was the result of blows inflicted at the time of his arrest

On the trial the People were permitted to show that in July previous to the November when the homicide was committed, on the occasion of a quarrel between Rosa Dadurno and a woman named Domenica Manchesi in relation to some money transactions, the defendant came up and interposed in the quarrel ,in behalf of Rosa Dadurno, and drew a revolver. The evidence was objected to and a motion was made in behalf of the defendant that it should be stricken out, which was denied, and exception was duly taken. This evidence was incompetent and was calculated to prejudice the jury. The fact that the defendant shot the deceased with a pistol which he carried on his person was undisputed. It had been proved by several witnesses. The purpose of the evidence plainly was to show that the defendant was of a quarrelsome disposition, and was ready to use a pistol on any occasion, without any adequate justification. The evidence did not explain or tend to explain the relations between the defendant and the deceased, nor did it throw any light upon the issue whether the defendant, in shooting Riverito, acted without adequate provocation or with a reckless disregard of human life. If it was admitted as the basis for such an inference, it was error, because the facts sought to be inferred could not be proved by showing his reckless conduct on other occasions, and no other reason for its admission is apparent.

We are also.of opinion that error was committed in permitting a witness to testify to the declarations of Rosa Dadurno tothedefendant, made some months prior to the homicide, as follows: “If Riverito’s life is not taken we will not be happy.” It does not appear that the declaration was called out by anything said by the defendant, or that he made any reply to it, or in any way assented to-it. So far as the record shows this was the only reference made tO' the deceased on this occasion. We can perceive no ground upon which the admission of this evidence can be j ustified. It was not offered to affect the credibility of Rosa Dadurno. She had not been examined as a witness. The fact that Rosa Dadurno entertained malevolent feelings towards the deceased, and expressed them to the defendant, and that he remained silent, does not justify an inference that he entertained the same feelings, or shared in the belief that the taking of Riverito’s life was essential to his happiness.

For the errors mentioned we think the judgment of the general term reversing the conviction should be affirmed.

All concur.

      Affirming 53 St. Rep., 415.


author: Van Brunt, P. J.

text:
    Henry Corse, App’lt, v. John Corse et al., Resp’ts.

      (Supreme Court, General Term,, First Department,

      Filed October 13, 1893.)

    Will—Trust—Lease.
    By testator’s will he gave his residuary estate in trust to pay a portion of the income thereof to each of his children, of whom plaintiff was one, with remainder to their respective children. By a codicil he made an alteration as to plaintiff’s share and directed that the net income of _ such share should be appropriated and applied to the education, maintenance and support of plaintiff’s children, and appointed plaintiff trustee of said share in place of the executors, to receive, manage and control the same for said purpose. Held, that plaintiff was a trustee of the income only, had no interest in any portion of the principal of the estate, and was not a necessary party to a lease of the trust estate.
    Appeal from judgment dismissing the complaint after trial at special term.

      W. C. Reddy, for app’lt; G. C. Blanke, for resp’t Corse; C. Norwood, for resp’t Appel.
   Van Brunt, P. J.

This action was brought to set aside a lease made to the defendant Appel by his codefendants of certain premises in the city of Hew York. The testator, Henry Corse, died in May, 1882, leaving a last will and testament, and a codicil thereto, which were duly proved and admitted to probate. By his will the testator appointed as executors his wife, Lydia A. Corse, his daughter, Catherine E. Fischer, and his two sons, John Corse and Samuel Corse; and, after making provision for his widow, he devised and bequeathed to his executrices and executors all his residuary estate, real and personal, upon certain trusts, under which the plaintiff, Henry Corse, was entitled to receive a certain share of the income derived from said estate. By his codicil the testator changed the provisions of the will so far as the same concerned or affected his son Henry only, and the share and benefit he would thereby receive, and instead and in the place thereof he directed that the net interest and income from said share (that is, the share wherefrom the income which under the will was directed to be paid to the plaintiff should be derived), or so much thereof as might be necessary, should be paid, appropriated, and applied to and for the education, maintenance and support of the children of said Henry during the lifetime of his son, and in the stead and place of his executrices and executors named in said will as trustees, so far as relates to the said share only, the said Henry Corse was nominated, constituted and appointed trustee of said share, to have, take, receive, manage and control the same for the use, 'education, benefit and support of his said children during his life, as aforesaid; and upon. Ms death testator directed the principal of said share to he paid over to and equally divided between the children of said Henry and their heirs and legal representatives. The trustees named in said will having executed a lease of certain premises against the-will of the plaintiff as testamentary trustee under said codicil, this action was brought to set aside said lease, upon the ground that it was improvidently made, and also without power upon the part of the trustees. It is true that one of the original trustees under the will, Catherine Fischer, did not join in the lease, but she subsequently ratified the same. Upon the trial the court dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

As to the claim that the granting of the lease was improvident and improper, the disposition made in the court below seems to-have been right, and we see no reason to interfere with the judgment upon that account. The only question is whether the plaintiff has such an interest in the estate of his father as made it necessary for him to join in the lease in question. Upon an examination of the will and codicil, it seems to us apparent that it was not the intention of the testator to give to the plaintiff, by the codicil under which he claims, any interest in the original corpus of the estate; but all that was intended was that he should be appointed, as trustee of the income which, under the original will, would have been paid to him absolutely, and under the codicil was directed to be applied by him to the use, education, benefit and support of his children. It is undoubtedly true that in the codicil some language is used which affords some foundation for the claim that, as far as the share of the estate from which he was to-derive the income was concerned, he bad been appointed trustee. But when we read , the will and codicil together, it is apparent that such was not the intention of the testator. By his will, as already stated, he devised the rest, residue and remainder of his estate for the benefit of his children. The direction was to divide the same into eight equal parts or shares, being one share for the use of each one of his eight children, including the plaintiff; and with the further direction that the trustees were to continue to hold the same in severaltjq and severally and respectively in manner and upon the trusts, and to and for the uses, objects and purposes therein stated, viz., to receive the rents, income and profits from the same, and, after paying the taxes, assessments and other expenses properly chargeable against.the income, to pay over the residue to his children-severally and respectively during their several and respective lives; that is, to each child such residue of interest and income derivable therefrom or applicable to his or her said one-eighth share. He further provides that upon the death of any child the trust as to his or her share should cease, and the principal was devised to bis grandchild or grandchildren who might be the lawful issue of said child so dying. Subsequently the testator states that, believing it for the best interest of his children as well as his grandchildren that his property should be kept together as long as possible, as he thought it would thus produce a larger income, he recommended his trustees to keep the same together. But he expressly states that this was not to be construed as a direction or restriction, but only as the advice of a father deeply interested in the welfare and happiness of his children. It seems, therefore, to be apparent that, although there was an express-direction that the estate should be divided, it was inserted in the will because of a fear that, unless such direction was given, the trust which he had created might run contrary to our statutes in respect to the alienation of estates; and that it was the intention of the testator that, as far as practicable, the property should be kept together, certainly until the necessity for a division arose by the death of some of his children, and the consequent taking out of an eighth part thereof for the representatives of such deceased child. Now, there is nothing in the codicil which runs counter to this intention. It is true he states that he nominates, constitutes and appoints his son Henry the trustee of the share the use of which he had appropriated to him in the will, to have, take, receive, manage and control the same for the use, education, benefit and support of his children during his life; and upon his death he directed that the principal of said share should be paid over to and equally divided between the children of said Henry. But this is preceded by an express statement of the intention of the testator to modify, alter and change the provisions of his will only so far as the same concerned or affected his son Henry, and in place thereof he makes the provision above mentioned. Clearly his intention was simply to make Henry a trustee of the income and not of the principal. It was as to the share and benefits which Henry would receive that he proposed to make the change; and all that Henry under the original will received was the income of an eighth share, or one-eighth of the income of the whole estate. Such being the plain intention of the testator, Henry Corse took no interest in any portion of the principal of the estate, was only a trustee of income, and has no interest in the controversy in question, except perhaps that as a beneficiary he might call his trustees to account for the maladministration of the trust. We are of opinion, therefore, that the complaint was properly dismissed, and that the judgment should be affirmed.

Follett and Parker, JJ., concur.


author: Per Curiam.

text:
    Lucia Cohen, Resp’t, v. Abraham Cohen, App’lt.

      (Supreme Court, General Term,, First Department,

      Filed October 13, 1893.)

    Divorce—Costs.
    Where there is neither answer, demurrer nor reply in an action for divorce, the plaintiff is not entitled to tax a trial fee nor costs after notice of trial.
    Appeal from order reversing a taxation of costs by the clerk and allowing thirty dollars for a trial fee and fifteen dollars for costs after notice of trial, which .had been disallowed by the clerk.

      Nathan Lewis (Samuel G Adams, of counsel), for app’lt; Howe & Hummel, for resp’t.
   Per Curiam.

By § 3251 of the Code a trial fee is allowed for the trial of an issue either of law or fact By § 964 an issue of law or fact can only arise where an answer, demurrer or reply has been served. There being no answer, demurrer or reply, no issue of law or fact was joined in this case. The application to the court was a mere application for judgment, and the court simply took proof to determine whether the plaintiff was entitled to judgment.

The plaintiff is not entitled to tax a trial fee or costs after notice of trial, no such notice being necessary or proper in the progress of the action. The order appealed from should be reversed, and the clerk’s taxation affirmed, without costs.

Yak Brunt, P. J., Follett and Parker, JJ., concur.


author: Follett, J.

text:
    Charles A. Clegg, Resp’t, v. The New York Newspaper Union et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Contract—Condition precedent—Pleading.
    Plaintiff, an advertising agent, entered into a contract with defendants for a certain amount of advertising space in their newspapers for a gross sum. The contract provided that as there was a dispute between the parties as -to previous contracts, the plaintiff should retain the amount claimed to be due by defendants until such contracts were fully performed by them, when the matter should be adjusted; it also provided that plaintiff should pay defendants “monthly on the balance of such contracts until they are completed.” Held, that such payments were not a condition precedent to performance by defendants of the new contract, but were collateral moneys, and a breach thereof must be specially pleaded as a defense to an action by plaintiff for a breach of the later contract.
    2. Same—Advertising.
    When the publisher of a newspaper refuses to complete publication of certain advertisements under a space* contract, the right of action of the advertiser for breach as to such advertisements accrues at once, although the publisher might then have been engaged in publishing other advertisements under the same contract.
    3. Same—Assignment of claim under.
    The oral sale and assignment, accompanied with payment of the purchase price, of claims arising on contract is valid, and thereafter the assignor cannot set them up as counterclaims in an action by the debtor on the contract.
    4. Same—Interest.
    In an action by an advertising agent against a newspaper publisher for breach of contract for space in the newspaper, and which had been paid for, it appeared that an agent of the publisher had assisted plaintiff in settling his contracts with his customers and knew what he charged them, but it did not appear whether he knew how they were to pay, and whether he had received pro rata payment for the time their advertisements had been published. Held, that plaintiff’s damages were capable of being ascertained by computation, and could have been determined by ■reasonable inquiry, and, therefore, that he was entitled to interest on the amount of his damages.
    Appeal from judgment in favor of plaintiff entered upon verdict, and from order denying motion to set aside the verdict and for a new trial.

      Horace Russell, for app’lts ; William B. Hornblower and W. Ford Upson, for resp’t
   Follett, J.

For some years prior to 1876 the plaintiff was ■engaged in the city of New York in securing from persons, firms and corporations, advertisements to be published in various newspapers, He is described in the case as an “ advertising agent,” but he is neither an agent of the advertisers nor of the publishers. He makes agreements with those wishing to secure the publication ■of their advertisements to procure their publication in certain newspapers for certain sums, and contracts with the papers, or those representing them, to publish the advertisements at rates agreed on. The difference between the rate paid to the newspapers, and the rate which he receives from the advertisers, is his profit. The defendants are corporations, except the individual defendants, who are partners under the firm name of Cramer, Aikens & Cramer, and control a list of newspapers called the “ Milwaukee Newspaper Union.” Each of these corporations and this firm controlled a number of newspapers, called a “ list,” published in various places, using what is known as patent outsides.” These outsides, and many of ■the advertisements printed by these local newspapers,were furnished by the American Newspaper Union, an organization formed and ■controlled by the defendants, which organization had a president who was authorized to make contracts for advertising, binding on the defendants. Before May 3,1876, the defendants, under contracts entered into with the plaintiff, had procured tobe published in the various local newspapers controlled by them advertisements at rates agreed upon. May 3, 1876, the parties entered into the following contract:

“ New York Office of the List of Co-operative Newspapers, E. W. Foster, Special Agent, 148 & 150 Worth Street.
Office of the New York Newspaper Union.
■ “New York, May 3, 1876.
“Charles A. Clegg, New York—Dear Sir: I will execute your orders, to amount of $50,000 gross, in the American Newspaper Union lists, subject to usual rules and regulations, on demand, for $14,000, payable $1,000 down, $2,000 July 1st next, and $1,000 monthly thereafter till paid, or at least as fast as the advertising ■expires. Orders in excess of $50,000, previous to April 1, 1877, will be taken at 25 per cent, of gross rates.
“A. J. Aikens, President.”

Under this contract the plaintiff was entitled to occupy a definite space, which is known as a “ space contract.” Pursuant to this agreement, the defendants caused to be published in the newspapers under their control various advertisements furnished by the plaintiff, which he secured from his advertisers. Controversies arose between the parties over their respective obligations and liabilities, and August 1, 1876, a new space contract was entered into, of which the following is a copy:

“ Charles A. Clegg, Advertising Agent, Tribune Building.
“ Address : P. O. Box 519.
“New York, August 1,1876.
“A. J. Aikens, President American Newspaper Union, 148 and 150 Worth Street, City—Dear Sir: I hereby agree to carry out the contract for $50,000 (gross) worth of space made with you in the American Newspaper Union lists May 3, 1876, by paying $1,000 cash, and giving my seven notes for the balance, payable, $2,000 October 3, $1,000 November 2, and $1,000 December 2, in 1876, also $2,000 January 1, $1,000 February 3, $2,000-March 2, and $3,000 April 1, in 1877, on your agreeing to carry out the following conditions, viz.: 1st. It is understood that you have given me as low rates as you have to any New York advertiser, agent or agency; and, should you give any one a lower rate during the continuance of this contract, you are to make this-equally low. 2nd. If I have not used up all of said space prior to April 1, 1877, then I am to be allowed to continue inserting advertisements until the space is all used; and, should I require-any additional space on orders taken before 1st April next, I ami to have said extra space at twenty-five per cent of gross rates, by paying cash with each order. 3rd. All of this $50,000 worth of space is to be charged at gross rates. 4th. You are not to receive-any more advertisements from George W. Niles or his agents, or sell him any space. 5th. As there is a disagreement between us-as to the contracts made in your and A. N. Kellogg’s lists prior to May 3rd last, I am to retain the amount of $6,766.04 (for which you have rendered me bills) until the completion of the balance of said contracts, when Mr. Foster and myself are to write out a full statement of our respective claims, and you agree to pass upon the same impartially. Should your decision not prove satisfactory to me, then it is mutually agreed to have the same adjusted by the courts. Hereafter, I am to pay you monthly on the balance of said contracts until they are completed.
“ Respectfully yours, Charles A. Clegg.”

The first paragraph of this 'contract, not numbered, relates to-carrying out the stipulations of the contract of May 3d. Subdivision No. 5 relates to the performance of the then outstanding, contracts entered into before May 3, 1876. Between June 10,. 1876, and December 27, 1876, the plaintiff secured fourteen contracts from different firms and corporations for advertising in said newspapers, for which he was to receive from the advertisers-$25,048.31. Twelve of the fourteen advertisements were to be continued during a year, and two of them for one year and six months. These advertisements so contracted for were furnished by the plaintiff to the defendants, and the stipulated price for their publication was paid to them, they undertaking to procure-them to be published for the times specified in their local newspapers. Before the completion of the publication of these advertisements, difficulties arose between the plaintiff and defendants, and April 11, 1877, the defendants refused to compíete the publication of the fourteen advertisements furnished by said fourteen firms to the plaintiff, and by him to the defendants. The plaintiff had before this paid to the defendants the full sum to which they were entitled for publishing these fourteen advertisements, and after their publication was discontinued the advertisers paid the plaintiff for the time during which the advertisements had run; and, had they been published for the full time stipulated,the plaintiff would have been entitled to receive from them the further sum of $14,926.70, which sum he lost by the refusal of the defendants to continue longer to publish the advertisements. July 27, 1879, this action was brought to compel a specific performance of the contract; and afterwards, by amendment, on terms, it was changed into an action for the recovery of damages for the failure to publish said fourteen advertisements. The defendants, by their answers, admitted that they undertook to publish advertisements for the plaintiff under a contract, but denied that they were published on the terms set out in the complaint, and denied that they had broken the contract, and also denied that the plaintiff had kept and performed it on his part. The defendants also set out, as counterclaims, (1) that plaintiff was indebted to them for $1,421.42 for advertising, with interest thereon from August 1, 1876; and (2) that before this action was begun the defendants furnished advertising space for the plaintiff, for which he agreed to pay $2,473.40, for which sum he was indebted to them, with interest from April 1, 1877. The plaintiff replied to the counterclaims, denying any liability, and alleging that, before the action was begun, defendants assigned said alleged counterclaims to George P. Bowell, and that the claims were being litigated in a former action pending between the parties.

The jury found a verdict for the plaintiff, and assessed his damages at $14,926.70, with $13,765.09 interest. No exception was taken to the rule for the assessment of damages laid down by the court, except to the instruction that, if certain facts were found, interest might be allowed. On the trial the defendants contended that the plaintiff had violated the clause in the contract which provides that the plaintiff’s orders were to be executed “ subject to the usual rules and regulations.” It was insisted that one of these rules provided that the plaintiff and all others engaged in the same business should not give their customers less rates than those prescribed in a schedule furnished by the defendants. The plaintiff insisted that there was no such rule, and also that if one existed it was not applicable to space contracts, but only to advertisements published on commission, and, further, that the defendants’ agent, Foster, saw the fourteen contracts made by the plaintiff with his customers, assisted in settling their terms, and approved of the prices agreed on. We must assume that the jury determined in favor of the plaintiff some or all of the subissues, which together make up the issue whether plaintiff had violated any of the usual rules and regulations.

The learned counsel for the appellants insists that the court erred in excluding evidence that the plaintiff did not make monthly payments on the contracts outstanding May 3, 1876. The plaintiff objected to the evidence on the grounds (1) that the making of monthly payments was not a condition precedent; (2) that it was not a defense to the plaintiff’s action; (3) that it was not pleaded as a defense. The objections were sustained. The court correctly ruled that making monthly payments, under the fifth subdivision of the contract, was not a condition precedent, necessary to be performed by the plaintiff before he could maintain an action for damages arising out of the breach of the other provisions of the contract. When a condition precedent exists in a contract, which is to be performed by the plaintiff, he must aver and prove performance on his part before he can recover for a breach of the same contract by the defendant. Code Civ. Pro., § 588; Bogardus v. N. Y. Life Ins. Co., 101 N. Y., 328. But if the provision is a collateral or independent covenant or promise, and the defendant wishes to avail himself of its breach as a partial defense, the burden is on him to plead" and prove nonperformance on the part of the plaintiff. The rule as to which party has the burden of pleading and proving a breach of a stipulation affords a very good test as to whether or not it is a condition precedent, These monthly payments did not in anywise relate to the advertisements which were furnished by the plaintiff to the defendants subsequent to May 3, 1876, but related wholly to independent contracts made prior to that date;. and we do not think this stipulation was a condition or promise which the plaintiff was bound to plead and prove performance of as a prerequisite to his right of recovery for defendants’ refusal to complete the publication of advertisements undertaken under the other provisions of the contract. The order of time in which covenants or promises are to be performed is an important, though not a controlling, factor in determining whether they are conditions precedent; but, in addition, it must appear that the promises alleged to be conditions precedent relate to the particular promise which the plaintiff alleges had been broken. • We think the first and second objections to the evidence were well taken.

Was the action prematurely brought ? The counsel for the appellants asserts in his brief, under the head of point second, that when the action was begun the defendants were engaged in publishing about 100 advertisements for the plaintiff under the contract, and refers us to page 56 of the case for the evidence. The evidence is that about 100 advertisements were being published April 11, 1877, and were continued for some time thereafter; but whether they ymre being published when the action was begun does not, so far as we find, appear. The advertisements were published under independent orders given by the plaintiff to the defendants, the execution of which they undertook, and when they absolutely refused to complete the publication a right of action accrued, although the defendants might then have been engaged in publishing other advertisements for the plaintiff under the contract, pursuant to other orders.

The court did not err in rejecting the evidence as to the existence of the two counterclaims. It is alleged in the reply that the defendants had assigned these claims to George P.- Rowell. Rowell was sworn as a witness for the defendants, and testified that he purchased these claims from Mr. Aikens, paying $3,000 for them, on the 22d of May, 1877. He had previously testified that he agreed with Aikens, the president of the American Newspaper Union, to purchase the claims against the plaintiff, and give $3,000 for them. Aikens, the president, testified that Bowell, in May, 1877, purchased the claims of him, and gave his check for $3,000 at the time. The oral sale and assignment, accompanied with payment of the purchase price, was valid. Risley v. Phenix Bank, 83 N. Y., 318 ; Truax v. Slater, 86 id., 630. This action was not begun until July 27, 1877.

Upon the question of interest, the court instructed the jury as follows: “ If you believe, on the evidence, that these defendants had at hand the ready means, by ordinary computation, of determining just what their breach of contract, if they were guilty of one, had cost the plaintiff in dollars and cents, then they had it in their power to compensate the plaintiff without awaiting the judicial liquidation of his damages.”

The evidence is that the defendants’ agent knew what the customers had contracted to pay plaintiff for the publication of the fourteen advertisements. . The defendants knew what sum the plaintiff had contracted to pay them for the publication of those advertisements. The only fact unknown—if it was unknown—to the defendants, which bore upon the question of damages, was whether the plaintiff’s customers would pay him such a proportion of the sums they had agreed to pay for full performance as the time during which the advertisements were actually published bore to the whole time for which the plaintiff agreed to procure them to be published. The circumstance that this fact may have been unknown to the defendant we do not think rendered the damages incapable of being ascertained by computation. It was a fact not in dispute on the trial, and was, like weight, measurement, or market value, one which could have been determined by reasonable inquiry. If the plaintiff was entitled to recover $14,926.70, as of April 11, 1877, for defendants’ failure to perform their contract, no injustice is done in allowing the interest on that amount.

These are the only questions argued by the plaintiff on his brief, or at the bar of this court, and we find no error sufficient to call for a reversal of the judgment. The judgment and order should be affirmed, with costs.

"Van Brunt, P. J., concurs.