text:
    Helen C. Beardslee et al., App’lts, v. Henry A. Dolge Resp’t.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Cebtiobabi—Rettjen—False—Commissioners oe highway.
    A commissioner of highways is not a judicial officer in the sense that he is entitled to the common law protection against a civil action for his misconduct in office.
    2. Same.
    An action lies against a public officer for an injury occasioned by Ms misfeasance or non-feasance.
    3. Same.
    The official determination of a highway commissioner as to the fact, upon which his power to act depends, is not conclusive.
    4. Same.
    In making a return to writ of certiora/ri by such commissioner, a mistake as to his duty and honest intentions on his part will still leave him liable.
    5. Same.
    His declaration in the return that the highway did not pass through the barnyard, was material and made in obedience to the jrat, f°r which he is liable if false and owners damaged thereby.
    6. Same—Evidence.
    Rejection of an offer on part of owners to prove the falsity of such statement and their damage is error.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an orderj which affirmed a judgment in favor of plaintiff entered upon an order dismissing the complaint on trial at circuit.

      Charles M Snyder, for app’lts ; JEldward A. Brown, for resp’t.

      Reversing, 52 St. Rep. 935.

   Bartlett, J.

This is an appeal from the general term, fourth department, affirming a nonsuit at circuit.

This action is brought to recover damages for a false return to a writ of certiorari made by the defendant when acting as highway commissioner of the town of Manheim, Heríamer county. The plaintiffs claim that the defendant, as such highway commissioner, made an order, without jurisdiction, locating a highway, as altered, through their barnyard, the center line being twenty-five feet from the barn. The plaintiffs applied for a writ of certiorari on the ground that it appeared “ upon the face of said proceedings ” that the highway was located through their barnyard. The writ issued commanding the defendant to return the proceedings with all things appertaining thereto. The defendant, as such highway commissioner, made return to the writ, attaching thereto all the proceedings in altering and locating the highway, and stating “that n.one of said alteration and highway proposed passes through the buildings or barnyard of Helen C. Beardslee and Guy R. Beardslee, nor do they pass through any yards ■ of the- said Beardslees. ”

The general term affirmed the proceedings (45 Hun, 310) and this court affirmed without an opinion (110 N. Y. 680). This disposition of the proceeding was due to the fact that the language of the return, already quoted, was held an answer to plaintiffs’ contention that the highway ran through their barnyard. The hearing was upon the writ and the return, the appellate courts holding the latter conclusive. The plaintiffs subsequently obtained a perpetual injunction against defendant’s successor in office prohibiting'the opening of the highway. Later this action to recover damages for the false return was brought and two trials have been had. At the first trial the plaintiffs recovered a verdict, but the general term reversed the judgment. At the second trial plaintiffs were nonsuited ; the general term affirmed the judgment .and the present appeal was taken.

At the last trial the plaintiffs offered to prove that the statement in the return that the highway did not pass through their barnyard was not true, and that they were damaged in the amount stated in the complaint. The court refused to receive the evidence, and, for.the purposes of this appeal, the facts stated in the offer of proof must be taken as true, Rehberg v. The Mayor, 91 N. Y. 137-141; McNally v. Phœnix Ins. Co., 137 N. Y. 389.

The learned general term seems to have proceeded upon the theory that the certiorari proceeding was final, determined the rights of all parties, and that the adjudication cannot be attacked collaterally in this action. This court, having heard the certiorari proceeding on the writ and return, and having no authority • to look into the facts, made a proper disposition of the matter upon the record as it then stood, but there is nothing in the decision of that appeal which prevents the plaintiffs from showing that the defendant, as a highway commissioner, acted without jurisdiction and made a false return when he stated that the proposed highway did not run through the barnyard of the plaintiffs. Highway commissioners, in laying out a highway, exercise a special and limited jurisdiction, and although it may be presumed, until the contrary appears, that they have acted legally, it is quite clear their acts may be impeached by showing that they exceeded their powers. Ex parte Clapper, 3 Hill, 461; Cagwin v. Town of Hancock, 84 N. Y. 532. Without the consent of the owner no road can be laid out “through any buildings, or any fixtures or erection for the purposes of trade or manufactures, or any yards or enclosures necessary for the use and enjoyment thereof.” 1 R. S. 514, § 57; 1 R. S. (8th ed.) p. 1372, § 57. The statute expressly deprives the commissioners of jurisdiction where the road passes through a yard, and provides for a proceeding before the county judge to be confirmed by the general term of the supreme court.

It has been held that commissioners laying out a highway through a yard, etc., were liable to the owner in trespass. Clark v. Phelps, 4 Cow. 190. This case proceeds upon the theory that commissioners acted wholly without jurisdiction. The People v. Goodwin, 5 N. Y. 571. A commissioner of highways is not a judicial officer in the sense that he is entitled to the common-law protection against a civil action for his misconduct in office. People v. Wheeler, 21 N. Y. 82. When called upon to make his return to the writ of certiorari he acts as a ministerial officer. It is an established rule in this state that where an individual sustains an injury by misfeasance or non-feasance of a public officer, who acts contrary to, or omits to act in accordance with, his duty, an action lies against such officer by the party injured. Bryant v. Town of Randolph, 133 N. Y. 75; Adsit v. Brady, 4 Hill, 630; Houghton v. Swarthout, 1 Den. 589; Hover v. Barkhoff, 44 N. Y. 113; Clark v. Miller, 54 id. 528; Wilson v. The Mayor, 1 Den. 595, 599; Rex v. Lyme Regis, 1 Doug. 149; Rector v. Clark, 78 N. Y. 21.

The official determination of the defendant as to the fact upon which his power to act depended is not conclusive, and if the fact does not exist his decision that it did does-not establish jurisdiction. Matter of N. Y. Catholic Protectory, 77 N. Y. 342 ; Born v. Backer, 61 id. 261. Where there is a, want of authority to hear and determine the subject-matter of the controversy an adjudication upon the merits is a nullity, and does not estop oven an assenting party. Matter Will of Walker, 136 N. Y. 20—29.

The present action is in the nature of a collateral attack upon the proceedings of the defendant as highway commissioner for want of jurisdiction. Such an attack can be made upon any judgment where there is no jurisdiction. Ferguson v. Crawford, 70 N. Y. 253: Chemung Canal Bank v. Judson, 8 id. 254; Freeman on Judgments, § 120.

If the plaintiffs shall succeed in proving their case the proceedings must be held void and the return to the writ of certiorari not true.

It is not necessai-y to impute corrupt motives to defendant; a mistake as to his duty and honest intentions on his part would still leave him liable. Houghton v. Swarthout, 1 Den. 589; Amy v. The Supervisors, 11 Wall. 136.

It is argued by the appellants here that the decision in the certiorari proceeding would have been the .other way if the defendant had not stated in his return that the highway did not pass through the barnyard of plaintiffs, as the return showed that the center line of the highway three rods wide was twenty-five feet from plaintiffs’ barn and would carry the outer line to within three inches of it. On the other hand, the general term suggested that the statement of defendant in his return, that the highway did not run through the barnyard of plaintiffs, might be regarded as nothing more than a declaration that in the proceeding before him, as commissioner, he held that the contemplated highway did not run through the barnyard ; or, if it could not bear this construction, it was irrelevant and should be disregarded.

We do not think this statement in the return can be treated as irrelevant as it appears to have exercised a controlling effect in the determination • of the certiorari proceeding. The general term, writing in that proceeding, say : “ The relators further claim that the action of the commissioner should be reversed, because the proposed road runs through the barnyard of the relators. The language of the return is an answer to such claim. It says, ‘ That none of such alteration and highway passes through the buildings or barnyard of the relators, nor do they pass through any yard of the said Beardslees.’ ” 45 Hun, 312.

The respondent has referred us to cases holding that a common-law certiorari to an inferior tribunal removes only the record, and if the return contains anything more it will be disregarded pro tanto.

This rule of the common law which treated the writ of certiorari as analogous to a writ of error, has no application to our present statutory proceeding where the writ of certiorari cannot issue to review a determination in a civil action or special proceeding by a court of record, or a judge of a court of record. Code, § 2121. The office of the writ is to compel the body or officer whose proceedings are under review to make a return of the proceedings, and a statement of the other, matters specified in and required by the writ. Code, § 2134. The Code of Civil Procedure, in providing what questions are to be determined upon the return of the writ, names first, jurisdiction of the subject-matter. § 2140.

In the matter at bar the writ in the certiorari proceeding commanded the defendant to certify and return his proceedings “with all things appertaining thereto,” and we are of opinion’ that his declaration in the return, that the highway did not pass through the barnyard, was material and made in obedience to the writ, exercised a controlling influence in that proceeding, and he is liable in this action, if, after due trial of the issues, it proves to have been false and the plaintiffs damaged thereby.

The judgment should be reversed, with costs to abide the event. All concur, except Andrews, Ch. J., not sitting.

Judgment reversed.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    William H. Walker, Resp’t, v. American Central Insurance Company of St. Louis, App’lt.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Pleadings—Counterclaim.
    To constitute a counterclaim, the facts must amount to an independent cause of action.
    2. Same.
    A defense, which, simply amounts to a depial of the making of an alleged contract, is not a counterclaim.
    3. Same.
    Such defense cannot he turned into an equitable counterclaim by demanding a information of such contract.
    4. Same—Reply.
    In such case, no reply in needed.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order which affirmed a judgment in favor of defendants entered upon a verdict.
    This was an action upon a policy of fire insurance issued by defendant.

      Edward A. Washburn, for app’lt; E. A. Nash, for resp’t.

       Affirming, 50 St. Rep. 245.

   Finch, J.

What is pleaded in the defendant’s answer as a counterclaim, and asserted to have become conclusive because no reply was served, is, in our judgment, simply and only a defense. Facts pleaded which controvert the plaintiff’s claim and serve to defeat it as a cause of action are inconsistent with the legal idea of a counterclaim, which is a separate and distinct cause of action, balancing in whole or in part that asserted by the plaintiff. Prouty v. Eaton, 41 Barb. 409. It meets the latter, not by a denial of it, or an attack upon its existence, but by opposing to it an equal or balancing demand on the part of the defendant. In this case what is averred to be an equitable counterclaim is in its legal effect an allegation that plaintiff’s cause of action never in fact existed; that the seeming evidence of it was the product of a mistake and not the true record of the contract; and that the risk of a second insurance for one thousand dollars for which the action was brought was never in fact taken or assumed by the defendant company. In brief, the answer denied the making of the contract alleged, or any liability upon it. Of. course, if true, that was a complete defense, and nothing but a defense, and could not be turned into an equitable counterclaim by asking a reformation of the writing. Any such relief was needless and of no possible consequence. When the facts pleaded should be proved their inevitable first effect would be to disprove and defeat the plaintiff’s claim, and that result would furnish a remedy complete and perfect, and leave the defendant in a position of entire safety and needing for the protection of its rights no further or other judgment or relief. For the reformation sought would turn the policy sued upon only info an agreed renewal of a policy already matured and settled. There was nothing left upon which such a renewal could operate. The property had been burned; the loss had been paid; and the policy which covered it was dead. It could not be effectively renewed, and if renewed in form would be lifeless and worthless in fact. So that, beyond defeating the plaintiff’s claim, the defendant had no right which at all needed a further affirmative judgment, and no such judgment could be ever a practical possibility.

That fact is an insuperable difficulty in the way of regarding this plea as a counterclaim, To be such it must amount to an independent cause of action which the defendant company, if it had not been sued, might have enforced as plaintiff. Assume, therefore, that this suit had not been brought, but that the company had sued in equity upon the pleaded facts to reform the policy. There would have been no equitable cause of action, because the remedy at law would be adequate and no necessity or ground for equitable interference would be disclosed. The company could show no right dependent upon an affirmative renewal of the old policy, for that was already paid and canceled and could not be renewed, and would be wholly nugatory and worthless if its formal existence should be prolonged. The only possible relief would be to cancel and extinguish the second policy issued by mistake. But a defense against that at law as never having been a contract made, as having no legal existence, would be always available against any possible claimant, and no ground for the intervention of equity would appear. The case would be like Geer v. Kissam, 3 Bdw. Ch. 129, in which the equitable relief sought was the cancellation of an over due note, and in which it was held that the action could not be maintained. The defense at law was perfect and fully adequate. Equally so it would be perfect in the case I am supposing, and not only so but the equitable remedy of a reformation would be both superfluous and impossible ; superfluous because needless for any purpose, and impossible since the contract as reformed had already been finally executed. The policy existing by mistake could not be valid in any hands : bj the fire it had matured and ceased to be a continuing liability under which new rights could accrue: it represented only an existing right of action at law: and was altogether open to the defense that the policy was a mistake and not a contract for the added insurance claimed.

The defense, therefore, was not a counterclaim and no reply was needed, but the objection to the plea in the aspect asserted could be taken at the trial. . It was so taken, and' the court ruled in accordance with the contention. Nevertheless, the facts pleaded constituted a legal defense, and put in issue the very existence of the contract sued upon. Whether or not there was an actual agreement for the new and added insurance became a question for. the jury, which was fought out at the trial and submitted for decision. There was no error in the ruling made.

The judgment should be affirmed, with costs.

All concur, except Andrews, Ch. J., not sitting.

Judgment affirmed.


author: Peckham, J.

text:
    Mary Fiske Paget et al., Resp’ts, v. Charles G. Stevens, as Trustee, etc., App’lt, et al., Resp’ts.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Process— Service—Publication.
    The cause of action, which is sufficient under §§ 438, 439 of Code, is one against the defendant, of which the court can take cognizance.
    2. Same.
    Neither the first, nor the second subdivision, of § 263 of Code, includes an action to remove testamentary trustees, who hold title to real estate under the trust.
    3. Same.
    Subdivision 6 of said section does not give jurisdiction, where one of two or more plaintiffs, who is not merely a formal but an interested party, is a non-resident.
    Appeal from order of the general term of the court of common pleas for the city and county of New York, which affirmed an order of special term denying a motion -by the defendant Charles Gk Stevens to vacate and set aside an order of publication.

      George Zabrishie, for app’lt; Frederick P. Delafield, for resp’ts.

      Reversing 59 St. Rep. 222.

   Peckham, J.

The plaintiff Mary Fiske Paget is one of three children which the late Paran Stevens left him surviving at his death in 1872. The plaintiff Marietta R. Stevens is his widow, The defendants Charles Gr. Stevens and John L. Melcher are two of the three trustees appointed by the deceased in the twelfth clause of his will, the plaintiff Mrs. Stevens being the third.

The trust created in that clause was in favor of the plaintiff Mrs. Paget, and consisted of one-third of the remainder of the estate of the deceased, after the payment of all debts, specific bequests and legacies, and payments to trustees of trusts otherwise created. The income from this oné-third is by the terms of the will to be paid by the trustees to the plaintiff Mrs. Paget during her lifetime, and upon her decease the principal is to be paid to her children.

Similar trusts in favor of his two other children were created by the eleventh and thirteenth clauses of the will. One of the other children married the defendant John L. Melcher, and the third child, a son, died unmarried and without issue, and by the terms of the will such share went in equal parts to the plaintiff Mrs. Paget, and the defendant Mrs. Melcher.

The plaintiffs have commenced this action to remove the two defendants Charles Gk Stevens and John L. Melcher from their positions as trustees of Mrs. Paget under the twelfth clause of the will of the deceased Stevens.

Mrs. Marietta R. Stevens resides in the' state of New York, and the plaintiff Mrs. Paget is a married woman, residing with her husband in the city of London, England. The defendant John L. Melcher is a resident of this state, and the defendant Charles Gk Stevens is, and was at the time of the commencement of this action, a resident of Massachusetts.

There has been conveyed to the trustees of the three respective trusts above mentioned, certain real estate in Massachusetts, while the real estate in New York, other than such as has been conveyed to the trustees for Mrs. Stevens, the widow, is in the actual, possession of the executors and executrix of the will of the deceased Stevens, and has not been sold or divided between those entitled thereto', among whom are the two children of the deceased.

The grounds for seeking the removal of the two defendant trustees of the plaintiff Mrs. Paget are set forth in the complaint, which -alleges that they have practically ousted the third trustee (the plaintiff Mrs. Stevens) from the exercise of any authority created by the trust, and have failed to co-operate with or consult her in the management of such trust, and have received the income of the Boston property, kept the accounts thereof and disposed of the same without her knowledge or consent. It is also stated that the trustees under the eleventh clause of the will (in favor of the daughter of Mrs. Melcher), who are the defendant Charles G. Stevens and one George P. Richardson, have commenced an action somewhat in the nature of partition, and have made the trustees under the twelfth clause defendants therein, and as Charles G. Stevens is one of the plaintiffs in that action of partition, and is also one of the trustees of Mrs. Paget under the twelfth clause, and the defendant John L. Melcher is also such trustee under the latter clause, and is also the husband of Mrs. Melcher, the cestui que trust in such eleventh clause, it is alleged that the plaintiff Mrs. Paget is in danger of not being properly represented in that action.

This in substa'nce is the cause of action as set up in the complaint. Some of the parties defendant have appeared in the action, but among those who have not appeared is the non-resident defendant Charles G. Stevens.

The plaintiffs procured an order for the publication of the summons as against him and some other non-residents, and he has appeared specially for the sole purpose of making a motion to set aside the order of publication so far as he was concerned, and upon the ground that the action was not one which, upon the facts set forth, was within the jurisdiction of the court of common pleas of New York. The motion has been denied by the courts below and the defendant Stevens has appealed to this court.

The Code of Civil Procedure provides in section 438 for the granting of an order directing the service of a summons upon a defendant without the state by publication. Section 439 of the Code provides that the order must be founded upon a verified complaint showing a sufficient cause of action against the defendant to be served, etc. This language does not mean simply a complaint which would withstand a demurrer based upon the ground that it did not state facts sufficient to constitute a cause of action. The cause of action which is sufficient is one against the defendant of which the court can take cognizance. In this case it must be one of which the court has jurisdiction (as to defendant Charles Gh Stevens) upon the assumption that he is a nonresident. This meaning has been adjudged to be the correct one in Bryan v. University Pub. Co., 112 N.Y. 382, 386; 21 St. Rep. 21.

We are, therefore, remitted to the question whether the cause of action as against defendant Charles Gr. Stevens which is set forth in the complaint is one over which the court of common pleas of New York has jurisdiction, assuming that he was a resident of the state of Massachusetts at the time the action was commenced. The court named is one of the superior city courts mentioned in the Code. Code of Civil Procedure, § 3343. The jurisdiction of such a court is stated in § 263. There are several subdivisions to that section, and the plaintiffs contend this cause of action is provided for in the first, the second and the sixth subdivisions thereof. The material portion of the first subdivision referred to grants jurisdiction to the court “ in every other action to recover or to procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property or a chattel real. But jurisdiction attaches under this subdivision only where the real property to which the action relates is situated within the city where the court is located.” Jurisdiction is extended by the second subdivision “to an-action for any other cause, where the cause of action arose within'” the city where the court is located, and by the sixth subdivision “ to an action for any cause brought by a resident of the city wherein the court is located, against a natural person who is not a resident of the state.”

We think that not one of the subdivisions embraces such an action as this.

The first subdivision does not touch it for the reason that the action does not in any manner affect or determine the title to or any interest in real property or a chattel real. The judgment in the action could not adjudge anything in regard to the title within the meaning of the statute. The object and purpose of the action are to remove trustees of a trust created under the will of Mr. Stevens. It is a purely personal action, having no connection whatever with the title to the real property held under the trust. It is true that the judgment might remove the trustees and so divest them of the title to the real property. But they hold it simply as representatives, and not in their own right, and precisely the same title which they held would remain in the survivor (Mrs. Stevens) or pass to successors appointed by the court and wholly unaffected by its decree. The judgment would simply determine the person who ought or ought not to hold the title as a trustee, without any individual or personal interest therein, and its extent and quality would remain without any adjudication regarding it, and precisely the same in the successors as it was in the trustees who might be removed by the judgment of the court. It is not even a case of rival claimants to the trusteeship under the same clause of the will, each claiming to be, and appealing to the court for a decision as to which was such trustee and the holder of the title. Nothing whatever in regard to the title as such could or is sought to be adjudged in this action.

The only question arising herein is as to who shall held, as a mere representative, the title to real property which is undisputed and not the subject of litigation. Whatever judgment may be entered, the title to the property remains the same that it is in the trustees of the trust created by Mr. Stevens’ will, and to determine whether one trustee shall be removed and another appointed in his place with precisely the same rights, powers and duties and holding exactly the same title as his predecessor, cannot in any legal sense be said, within the proper meaning of the statute, to establish, determine, define, forfeit, annul or otherwise affect an estate, right, title, lien or other interest in real property or a chattel real. It only affects the person who shall, without any personal or individual interest therein hold a title which is not disputed and for the purpose of a trust, the meaning and extent of which are not involved and in regard to which no judgment could be given. To remove a trustee under such facts does not in any legal sense of this statute forfeit or annul an estate.

This construction of the statute is neither metaphysical nor subtle. On the contrary, it seems to us a very plain and natural one.. The preceding portion of the first subdivision of § 263 indicates quite plainly what the nature of the various actions contemplated in the section was to be. .The action was in some manner to recover of to affect, to foreclose or to forfeit the title claimed by another, so that when the judgment was pronounced such title would be defined or adjudged either good or bad, forfeited to one claiming adversely or forfeited or cut off by some' superior claim. Adverse or conflicting interests in the real property'would be determined or adjudged by an action of the nature contemplated in the section. It would be a most strained and unnatural construction to hold that such an action as this would come under the terms of the statute when the 'only matter really determined would be whether a mere stakeholder, so to speak, was a proper depository of the title which was undisputed, or whether he had been guilty of such acts as would render his removal proper, the title to the property in such case vesting in his successor and no judgment given in regard to its extent, quality or character. We pan not believe it was ever the intention of the legislature to include such an action within the meaning of the section, and we believe it did not in fact so include it.

In this view it is not necessary to determine or further to notice the other objection raised by defendant Stevens, that as part of the real property embraced in the trust lies in the state of Massachusetts, the New York court of common pleas can have no jurisdiction because of the provision in the Code that the real property to which the action relates must be situated within the city where the court is located. The action does not, within this section, relate to real estate.

Nor do we think that the provision of the second subdivision of § 263 covers this case.

The “cause of action” did not arise in the city of New York so far as regards defendant Stevens. During all the time mentioned in the complaint he has been a resident of the state of Massachusetts, and the cause of action is his alleged misconduct as trustee. There is no pretense that he has done an act in New York. His alleged misconduct it is claimed might as a consequence possibly harm the trust estate. If this were true, that estate is in no sense the subject of the action, nor is it the cause of action. That cause is, as I have said, the alleged misconduct of Mr. Stevens, his breach of or failure to perform his duty as a trustee, and that arose in the place where he resided and assumed to act as trustee and where such alleged breach accurred. Assuming the correctness'of the plaintiffs’ claim that it is in New York that Mrs. Paget is exposed to the danger of being represented by improper and .unfriendly attorneys, it does not on that account appear that the cause of action against Mr. Stevens arose in that city. This alleged danger is but a consequence of the alleged misconduct; it is not, and in and of itself it cannot form or constitute a cause of action. The subject of the action is in no sense the trust property. It is the alleged breach of duty of the trustee, as a consequence of which it is claimed that harm may result to such property. The preservation of the trust property may be one of the results which plaintiffs’ claim would flow from the removal of the trustee, but the preservation of such property is in no legal sense the cause of action. To call an action brought to remove a trustee from his trust because of his personal conduct or misconduct as such trustee, one in which the cause of action is the preservation and management of the trust property, seems to us a subversion of the meaning of language. The judgment cannot control the management of the trust. estate, for in any event it is to be managed by trustees who are to carry out the purpose and end of such trust, and no person who might be appointed would have any other or different powers of management than his predecessor, and no relief is sought or could be granted which would be in the least inconsistent with this fact.

Finally, the court takes no jurisdiction by virtue of the sixth subdivision of the section. The action is not brought by a resident of the city w'herein the court is located, against a natural person who is not a resident of thé state. This subdivision includes the case where the sole plaintiff or all the plaintiffs are residents of the city. In this -case one of the plaintiffs (Mrs. Paget) is-a citizen of London in the kingdom of Great Britain. Mrs. Paget is not a merely formal party to the action,'assuming such fact to constitute an exception to the rule. She is the cestui que trust and of the two plaintiffs she is the person alone who is substantially interested in the performance of the trust. By the joining of the third trustee (her mother) with her as plaintiff, the court does not thereby acquire a jurisdiction by reason of the residence of the trustee in the city of New York, which otherwise it would not possess. One of the plaintiffs has not the necessary jurisdictional residence in that city, and the objection is not rendered without force by proof that another of the plaintiffs has. Where citizenship or residence is requisite on the part of plaintiffs, it lias always been held that the fact must exist in regard to all the plaintiffs. This has been so held m the United States courts in reference to citizenship, and we think it is the plain meaning of the statute.

We agree with the able and satisfactory dissenting opinion delivered by the learned judge at the general term of the common pleas, and we might well have rested our judgment upon it, but as the case here was necessarily argued somewhat briefly, we have felt that although in our judgment it was quite a plain one, yet it would be well, considering the importance of the question involved, not only to give it most mature consideration, but also to elaborate somewhat the reasons for the conclusion at which we have arrived.

The order appealed from must be reversed, with costs in all courts, and the motion to set' the order of publication aside, so far as defendant Charles G. Stevens is concerned, must be granted, with costs.

All concur, except Andrews, Ch. J., not sitting, and Gray, J., not voting. Ordered accordingly.


author: Rumsey, J.

text:
    William Sandham, as Administrator, etc., Pl’ff, v. George H. Nye et al., Def’ts.

      (Supreme. Court, Cayuga Circuit,

      Filed August, 1894.)

    1. Railroads—Consolidation—Constitutional law.
    Chap. 163 of 1886, which authorizes the consolidation of the East Genesee and Seward Avenue Railway and the Auburn and Owasco Lake Railway, is not unconstitutional.
    2. Same—Negligence.
    The corporation, organized in pursuance of such act, is alone liable for the negligence of its employes.
    Action to recover damages on the ground of negligence.

      Frank Q. Cushing, for pl’ff; Underwood & Storke, for defts.
   Rumsey, J.

The plaintiff’s intestate was run over by a car upon a street railroad upon Owasco street, in the city of Auburn, and was killed. The track of the railroad was laid and the road was operated by the defendants, under the name of the Auburn City Railway Company. It is alleged in the complaint that the defendants assumed and pretended to act as the officers of this corporation, and as such constructed the railway and laid down a track on Owasco street, and operated the said railroad, by running its cars thereon. The complaint further alleges that the acts of the defendants in constructing and maintaining the road were done without any authority of law and wrongfully and unlawfully, because the” Auburn City Railway Company, of which they claim to be directors, and whose franchise to operate a road they pretend to control, was never in fact organized as a corporation, and for that reason there was no right or franchise under which the defendants might lawfully maintain and operate a street railway company. For these reasons it is claimed by the plaintiff that the defendants, and not the corporation known as the Auburn City Railway Company, are liable for the negligent killing of his intestate. It will be seen that the serious question in the case is whether the Auburn City Railway' Company was organized under such circumstances that -it became a legal corportion with a franchise to operate a street railroad. If it did, then, irndoubtedly, it, and not the defendants, who are its directors, is liable for the killing of the plaintiff’s intestate.

The facts connected with the organization of this company are fully set out in the complaint. It appears that in the year 1871 there was organized by acts of the legislature a corporation known as the Bast Genesee Street & Seward Avenue Railway Company, to which corporation was given the right, upon certain conditions, to lay tracks and operate a street railway in the.city of Auburn and adjoining towns upon streets named in the act, one of which was Owasco street. It appears further that the common council of the city of Auburn, by resolution, authorized the East Genesee Street & Seward Avenue Railway Company to ■construct a railway through certain of the streets in the city, including Owasco street, and that pursuant to that permission a railway was constructed upon some of these streets but not upon Owasco street. That company afterwards mortgaged its franchise and property, which mortgage was foreclosed in the year 1880, and the franchise and property were sold to certain persons who organized a new company under the name of the East Genesee' Street & Seward Avenue Railway. By virtue of that subsequent, organization the new corporation became the owner of all the franchises of the old East Genesee Street & Seward Avenue Railway Company, and operated its roads under these franchises until some time in the year 1886.

It appears further, by the complaint, that in the year 1886 there was existing in the city of Auburn another street railway •company, known as the Auburn & Owasco Lake Railway, which company owned and operated a street railroad in certain of the streets of Auburn which were not within the franchises of tbe East Genesee & Seward Avenue Railway.

On the 21st day of April, 1886, the legislature passed chapter 168 of the Laws of that year, which was entitled “ An act to authorize the consolidation of the East Genesee Street & Seward Avenue Railway and the Auburn & Owasco Lake Railway, and to regulate the motor power on the consolidated railroad.” This act provided substantially that it should be lawful for the East Genesee Street & Seward Avenue Railway to merge and consolidate its capital stock, franchises and property with the capital stock, franchises and property of the Auburn & Owasco Lake Railway, and it provided specifically the manner in which said consolidation might be made. In pursuance of tbe power granted by that act the two corporations therein named entered into an agreement for their consolidation and the organization of a new company under the name of the Auburn City Railway Company, and, after that corporation was organized, it took possession of the property of the old companies and proceeded to operate the railroads which those companies had operated. It also extended the tracks of those companies upon Owasco street, and operated á street railway upon that street to Owasco lake.

It is claimed by the plaintiff that the act, chapter 163 of the Laws of 1886, is unconstitutional; that for that reason there was no legal agreement for consolidation, and consequently no legal and valid organization of the new railway company, and as a result that the defendants, claiming to act as officers qf a railway company which-had no existence, are personally liable for whatever was done in that behalf.

It must be conceded that if there were no legal authority for the consolidation of these two companies, that the Auburn Citv Railway Company never acquired a legal existence. Latham v. B., H. T. & W. R. Co., 30 Hun, 265. It must also be conceded, of course, that two railway corporations cannot consolidate without the authority of the legislature. Boone Corp, § 186. The only authority under which this consolidation is asserted to have been made is that contained in the law of 1886, above referred to.

_ It was suggested by the defendants’ counsel that the consolidation might be deemed taken under the general act, but it is quite evident that it was not so taken, because the notice required by that act was not published and the capital stock of the new company exceeded in a very large proportion the aggregate capital of the constituent companies. This last was in direct conflict with the provisions of the general act. The articles of agreement and consolidation which were filed for the purpose of the organization of the new corporation recite that it was done in pursuance of the authority contained in chapter 163 of the Laws of 1886. It must be assumed,- therefore, that the consolidation 'was taken in pursuance of that act, and it necessarily follows, I think, that if that act was not operative to permit such a consolidation, the Auburn City Railway Company was never legally organized.

The objection which is made by theplaintiff to the validity of that organization is based upon his claim that the law itself under which the organization purports to have been made is unconstitutional, because it violates that provision of § 18 of article 3 of the Constitution which forbids the legislature to pass a private or local bill granting to any corporation the right to lay down railroad tracks. That this is a local bill of course cannot be denied. The only question, therefore, is, can it be said to grant to the Auburn City Railway Company the right to lay down railroad tracks ?

It is conceded that at the time of the passing of chapter 163 of the Laws of 1886 there were in existence in the city of Auburn two corporations actually engaged in operating street railroads, which were legally organized and had legally acquired the right to do the things which they were doing. Can it be said that this law, which authorized the consolidation of these two corporations, 'was in any sense the granting to the Auburn City Railway Company of the right to lay down railroad tracks ? It must be remembered that the power of the legislature to create - corporations by private and local act bas never been limited by the Constitution. That power exists as fully now as it ever did exist. Whatever limitations to legislative power are contained in the Constitution must be strictly construed, and the exercise of any legislative power is presumed to be constitutional unless it is brought clearly within some of the restrictions. Matter of Gilbert Elevated Railroad Co., 70 N. Y. 361, 368. This act of the legislature, therefore, cannot be said to be beyond its power unless there is clearly implied in it a grant of power to the new corporation to lay down railroad tracks, because the constitutional clause was designed only to prohibit an original and independant grant of that right. Matter of Gilbert Elevated Co., 10 N. Y. 369. It cannot be denied that when the legislature gave the power to these two companies to consolidate and they did enter into the consolidation agreement the existence of the two companies which made the agreement was merged in the Auburn City Railway Company, and that company came into existence by virtue of the agreement for consolidation authorized by the law of 1886. People v. N. Y., Chicago & S. L. R. R. Co., 129 N. Y. 474; 42 St. Rep. 90. But the granting of the right to consolidate was not one of the things which is forbidden by the Constitution. It may be conceded that, as the effect of this act and the agreement made pursuant to it, the Auburn City Railway Company acquired a legal capacity to operate a street railroad, but it does not follow from that that it acquired the right to operate such a railroad. There is a clear distinction between that franchise which creates a corporation that has the power to own property, and the franchise which authorizes the corporation thus organized to construct and operate a railroad. The first is the personal franchise, so called, by virtue of which the corporation becomes a legal entity and obtains the capacity to acquire property and other rights; the other franchise is purely and only a property-franchise. Jones Oorp., § 672. It existed before this corporation, because then it was owned by the two contracting corporations which created the Auburn City Railway Company. If the Auburn City Railway Company should be dissolved and the property be sold at auction for the benefit of its creditors and stockholders, the right to maintain and operate these railroads would still be a valuable right which might be sold independent of the life of the original corporation. Such a franchise is attached, not to the right of the corporation to exist, but it is attached to and inseparable from the tracks of1 the railroad company. People v. O'Brien, 111 N. Y. 2; 19 St. Rep. 173. The fact that a street railroad company is organized under the general act does not give a franchise or a right to lay down and operate a railroad track. That right can be created only by conforming to the requirements of the latter part of § 18 of article 3 of the Constitution.

The legislature found at the time of the passage of the law of 1886 the franchise to operate this railroad and to lay down a railroad track upon Owasco street in full existence. It found also existing within the same city another franchise to operate railroad tracks upon other streets. These two franchises were complete and perfect and beyond the power of the legislature to destroy. People v. O'Brien, 111 N. Y. 2; 19 St. Rep. 173. It was expedient, apparently, that the operation of these franchises should be put under one single head.. That might be done by authorizing one of the railroads to become the owner of both franchises, or by permitting one corporation to merge in the other, or by making one corporation out of the two. Whichever way it was done it would not operate to bring into existence a new right'to lay down and operate a railroad track, but would be only a manner of regulating tlie exercise of the rights already existing. The case is clearly, I think, within the following cases: Matter of New York Elevated Railroad Company, 70 N. Y. 327; Matter of Gilbert Elevated Railroad Company, 70 N. Y. 361; Matter of New York Cable Railroad Company, 109 N. Y. 32; 14 St. Rep. 51.

For these reasons I think that chapter 163 of the Laws of 1886 was not unconstitutional. It follows that the Auburn City Railway Company is legally organized, and that it alone is responsible for the negligence of its employees. The necessary result of that conclusion is that this complaint does not state a cause of action against the defendants.

Judgment for defendants.


author: Ward, J.

text:
    In the Matter of the Application of John H. Murphy for a Writ of Certiorari to William M. Jewell et al., as Assessors, etc.

      (Supreme Court, Erie Special Term,

      Filed October 17, 1894.)

    Taxes—Assessments—Pension.
    The proper mode of assessing property, a portion of which is, and a portion is not, exempt from taxation, is to assess the value of that portion which is not exempt, after deducting that which is exempt.
    Certiorari to correct the assessment roll of the town of New Albion, Cattaraugus county, by striking out an assessment to John H. Murphy, of fifty acres of land because the same was purchased by pension money and was exempt from taxation.

      E. A. Nash, for relator; D. E. Powell, for assessors.
   Ward, J.

The assessors of the town of New Albion in Cattaraugus county, in making tlieir annual assessment for the year 1894, assessed to the relator, John H.' Murphy, a farm of fifty acres situate in that town at $950 valuation. Murphy had been a Union soldier in the war of the Rebellion, and in 1890 or 1891 received pension money from the government to the amount of $2,400, and immediately thereafter he purchased a house and lot at an agreed price of $1,500 and paid for the same out of said pension money. In the year 1894 and prior to the assessment sought to be corrected in this proceeding, Murphy purchased the farm in question, and in part payment of the same, conveyed to the person of whom he purchased the farm the said house and lot. The purchase price of the farm was $2,500; the house and lot was conveyed for $1,500, leaving a balance due upon the purchase'of one thousand dollars, which was secured by a mortgage upon the farm executed by the relator. The relator was a resident of the town at the time of the assessment, is a married man and had a family consisting of a wife and five children who resided with him and were dependent upon him for support, and all the property Murphy had had been put into the farm. At the time of the assessment the mortgage was still upon the farm to the amount thereof and the certiorari was obtained by the relator to correct the said assessment by striking it from the roll upon the ground that it was exempt from taxation, as it was purchased by the pension money.

On the review day authorized by the statute, the relator appeared before the assessors and asked to have the assessment stricken from the roll for the reason above given, filing an affidavit to that effect, and also being sworn and examined before the assessors. The assessors declined to strike the assessment from the roll, and the question here is whether they were justified in such action. The assessors returned, in answer to the writ of certiorari, that they made the said assessment and assessed the interest of the relator in the farm subject to taxation in the premises at $950. They say that they assessed the land in question at the full value, and in effect returned that the value of the farm over and above the pension money applied in payment of the farm, was a thousand dollars, which was not exempt from assessment and for which the relator was liable to be assessed, and they therefore refused to change the assessment or strike it from the roll.

The statute, Laws of 1851, chapter 176, requires the assessors to estimate and assess the land “at the full and true value as they would appraise the same in payment of a just debt due to a solvent debtor.” No reduction could be made from the value of the land on account of the mortgage of a thousand dollars imposed upon it. So that, to that extent, the relator must be regarded the owner of the land the same as if it was unincumbered. Reduction of valuation for debts only applies to personal property. The proper mode of assessing property, a portion of which is exempt from taxation, and a portion not, is to assess the value of that portion which is not exempt after deducting that which is exempt. People ex rel. Hutchinson v. O'Brien, 53 Hun, 580; 25 St. Rep. 176. The only complaint which the relator makes in his petition for certiorari is that the tax is unjust and illegal because all the property is exempt from taxation. We are to assume that the assessors did their duty and assesséd the property at full value. The evidence before the assessors justified them in assuming that the value of the property was $2,500, and therefore when they assessed it at $950, the presumption is that they assessed only that which was not exempt. The learned counsel for the relator claimed that real estate in the town of New Albion was not assessed at its full value and that the assessors intended to assess the whole of the farm at $950, their rule of assessment being as to all the lands in the town at about a third of their value. This contention is without evidence to support it, and from all the facts before me, I am of the opinion that it is not well founded.

The cases of the Yates County National Bank v. Carpenter, 119 N. Y. 550; 30 St. Rep. 121, and Buffum v. Forster, 77 Hun, 27; 59 St. Rep. 833, cited by the learned counsel for the relator, do not aid us and are readily distinguished from the one before us.

The action of the assessors must, therefore, be sustained and the writ of certiorari dismissed with costs against the relator, which, under § 6 of chapter 269 of the Laws of 1890, must be imposed npon him.


text:
      Juan F. Pastor, Pl’ff, v. Michael Regan, Def't.

      (Supreme Court, Monroe Circuit,

      Filed August, 1894.)

    1. False imprisonment—Trespass.
    Failure to take a prisoner before a court without unnecessary delay makes the officer a trespasser from the beginning, and liable for false imprisonment.
    2. Same—Damages.
    Where an officer, in the absence of a request or complaint, arrests a reputable citizen and confines him for a considerable time without process, the amount of damages is largely in the discretion of the jury.
    Motion for a new trial.

      F. C. Laughlin, for deft; Louis H. Jack, for pl’ff.
   Rumsey, J.

This was an action for false imprisonment. The defendant, a police captain in the city of Buffalo, was called by telephone on the night of the 13th of • April, 1893, to go to the Iroquois Hotel in the city of Buffalo. On his arrival at that place he had conversation with a couple of men who had caused him to be sent for, as the result of which he arrested the plaintiff without warrant, upon the charge of obtaining money* by false pretenses. The arrest was made late at night of Thursday, or early in the morning of Friday. It appears from the testimony that after making the arrest the defendant took the plaintiff to the station house and caused him to be confined. On Friday the plaintiff was taken by the defendant into the court room, but the attention of the police magistrate was not called to the plaintiff’s case, it appearing that nobody was there to make a complaint. After keeping the plaintiff in the court room for an hour or so, the defendant, learning that the person who had made the complaint the night before was not to be found, took the plaintiff back and again placed him in confinement. The defendant-'did not call the matter to the atten lion of the police magistrate, nor was the plaintiff arraigned before the police magistrate, nor was ’any order made in regard to his case by the magistrate. He was simply taken from the court to his place of confinement by the defendant, without any direction of anybody, and there held without waTrant or process from Friday until Monday afternoon, when, without being arraigned, he was discharged.

Upon the trial the question was submitted to the jury, whether the defendant, being an officer, had reasonable ground to believe, at the time he arrested the plaintiff, that a felony had- been committed, and they were told that if he had such grounds and made the arrest, believing that the plaintiff was guilty of a felony, the arrest was justifiable. They were then told that, if the arrest was justifiable, it was the duty of the officer to take the person arrested, without unnecessary delay, before a magistrate that he might be arraigned, or put upon his examination. They were tdld that if the person who makes the arrest did not take the party arrested before an officer, without unnecessary delay,' but held him without warrant from a magistrate for an unnecessarily long time, and then let him go without any direction, the law would say, not only that he went beyond the powers which the law gave him by way of holding the man at the time he made the arrest, but that he was a trespasser from the beginning, and the illegal act which he did by holding him longer than he had the right to hold him was deemed to revert back to the time of making the arrest and the whole thing was illegal from the beginning. The jury were then told that although they might come to the conclusion that the officer was justified in arresting the plaintiff, that they must go further in the examination of the case and satisfy themselves' whether it appeared that, after the arrest was made and the man in custody, the officer did other things which the law required him. to do by way of enabling the person whom he had arrested to be put upon his examination and to show whether or not it was proper to detain him further. The jury were told that it was the duty of the defendant to take the plaintiff before a magistrate without unnecessary delay, and that there was no legal right on the part of the defendant to detain the plaintiff, without taking him before a magistrate, from Friday until Monday, and it was submitted to them whether they would infer from the fact that the defendant illegally detained the plaintiff, without warrant, from Friday until Monday, and without arraigning him before a magistrate for all that time, that the arrest was illegal from the beginning, and that the defendant acted as a trespasser from the beginning of the arrest, and if they did so find they might give the plaintiff damages. The defendant’s counsel excepted to so much of the charge as said that if the jury find the arrest was illegal and the detention unreasonable, they might infer from that that the whole thing was illegal from the beginning.

That exception raises the only question of law sought to be presented upón this motion.

That it was the duty of the defendant, having arrested this man, to take him without unnecessary delay before a magistrate, cannot be denied. Code Crim. Proc. § 165. That no such thing was done, but that the plaintiff was held in custody without warrant, without arraignment or without any direction of a magistrate, from Friday until Monday, not only clearly appears but is conceded. The only question is, then, whether, because of that illegal detention, the defendant became a .trespasser from the beginning, so that the fact that the arrest might have been originally legal was no protection to him in this action. The rule laid down in the Six Carpenters Case, 6 Coke, 146, that if a man abuse an authority given him by the law he becomes a trespasser ab initio, has never been questioned. Indeed, the rule is not questioned in this motion, but" the suggestion is made by the counsel for the defendant that this rule does not apply to the case of au arrest, but only to eases of unlawful or other seizures of property. That does not seem to be the case here. In the case of Tubbs v. Tukey, 3 Cush. 438, the precise question presented here was presented to the court, and it was held that the rule laid down in the Six Carpenters Case applied to cases in which the arrest was legal but the subsequent detention was illegal and unreasonable. The case of Brock v. Stimson, 108 Mass. 520, presented almost the precise question presented in this case. In that case the defendant, who was the chief of police for the city of Cambridge, had arrested the plaintiff upon the street for being drunk and disorderly and disturbing the peace. By the statute it was the duty of the defendant, having made the arrest for drunkenness, to detain the plaintiff until he was so far recovered that it was proper to take him before a court of justice, and then take him before a justice of the peace or police court and make a complaint against him. The chief of police in that case, having arrested' the plaintiff, did not take him before a court, but detained him for a space of time and then released him. The court instructed the jury that the failure of the defendant to take the plaintiff before the court as the law required made him a trespasser ab initio. The plaintiff had a verdict, and upon the hearing of the exceptions before the supreme court the judgment was affirmed, the court laying down the rule that an officer who, after having arrested a person on criminal process, omits to perform the duty required by law of taking him before a court, is a trespasser ab initio. Within the rule laid down in these cases the court, upon the trial in this action, would have been justified in charging the jury, as matter of law, that the defendant, because of his failure to take the plaintiff before a court without unnecessary delay, was liable as a trespasser from the beginning. Instead of that it was submitted to the jury whether they would infer the malicious intent from the beginning. This was more favorable to the defendant than he had any right to ask, and he certainly cannot complain of it.

The defendant insists that although there may have been no error which would warrant the granting of a new trial, yet that the damages are excessive and for that reason a new trial should be granted.

It is undisputed that the plaintiff was arrested in a public place in the city of Buffalo, late in the evening of Thursday; that he was taken to the police .station and there confined, without any ■warrant and without any process, until the following Monday, when he was permitted to depart. There was no proof of any indignity offered to the plaintiff, and nothing from which it can bo inferred that any humiliation was put upon him, except such as would necessarily follow the arrest of a reputable man upon such a charge, and the loug detention. Nor can it be said that there were any circumstances of especial pecuniary damage shown. The jury may have found from the evidence, and it must be assumed upon this branch of the motion that they did find, that the arrest was totally unjustifiable, because there was evidence to contradict seriously the testimony of the defendant that he was requested to make any arrest or that any complaint was made to him that the plaintiff had been guilty of any crime. If they took that view of the case, as they well might, there was good reason why they should give a verdict for considerable damages. The evidence warranted them in saying that the act of the defendant was high handed'and unjustifiable. Where an officer of the law under those circumstances arrests a reputable citizen and confines him for a considerable time without process, it must rest largely in the discretion of the jury how large a sum they will assess as damages for such an injury. The amount fixed by the jury in this case was probably larger than would have been given by the court, but the jury are the tribunal especially,charged with the decision of. questions involving the amount of damages, and no court is at liberty to interfere with their decision unless there is a plain abuse of their discretion.

The liberty of a citizen is a matter of pretty considerable importance, and it is not easy to say that such a sum -as was given here is too great an amount to compensate a man for the arrest and detention to which this plaintiff was subjected.

For these reasons I do not feel at liberty to interfere with the decision of the jury as to the amount of damages, and the motion for a new trial must be dismissed.

Motion dismissed.


author: Patterson, J.

text:
    National Park Bank of New York, Pl’ff, v. Warren N. Goddard et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed September 24, 1894.)

    1. Equity—Conflicting claims.
    A party, who rescinds a sale for fraud after tlie goods have been seized under warrant of attachment against the vendee, cannot sue in replevin but may assert his original title in equity.
    2. Confusion of goods—Rule—Application.
    The rule as to confusion of goods does not apply.where the interests of third persons intervene, and full protection can otherwise be given to the innocent person whose goods were wrongfully used.
    3. Replevin—Act of 1894.
    Chap. 305 of 1894 is not retroactive.

      Francis M. Barlow, for pl’ff; Louis Marshall, for def’ts.
   Patterson, J.

By the agreed statement, setting forth all the facts to be considered by the court in deciding this cause, it appears that the plaintiff sues to procure an adjudication of the rights of various claimants to a fund now in the hands of a receiver of this court, and which fund consists of the proceeds of certain manufactured garments, which were sold by the receiver under au order of the court. Various claims to the goods were urged by many parties, among them the plaintiff and such of the defendants as are now before the court, and whose names appear in the statement referred to. The plaintiff claims under an attachment, judgment, and execution against the property of Levy Bros. The defendants now before the court claim by title revested in them to goods sold and delivered by them to Levy Bros., the sale having been procured to be made by fraudulent representations of Levy Bros., and the defendants having rescinded the sales, and elected to treat them as null. It also appears that the sheriff of the city of New York levied upon the property which the defendants had sold to Levy Bros., such levy being under the attachment in the plaintiff’s action against that firm. This levy under the attachment was made before the defendants elected to rescind the sales. While the goods were in the sheriff’s possession under the attachment, the defendants brought actions of replevin, and issued process to the coroner, who seized the manufactured goods, for the making of which, in part, the defendants’ merchandise had been used. There were altogether some fifty actions of replevin brought, and thereupon ' this suit was instituted for the express purpose of having an adjudication .by this court as to the rights of the parties to all those actions in and to the goods. Interlocutory proceedings were had in this action, by which the receiver of the merchandise was appointed, and he was instructed to sell the property and to hold the proceeds subject to the order of the court. The actions in replevin were enjoined, and the various defendants have come into court with their answers, setting up their claims, and insisting upon their rights to the fund, the subject of the litigation. It further appears by the agreed statement of facts that the goods sold by the defendants to Levy Bros, were made up, with other goods, into garments, and the defendants now urge that, by reason of the changed form into which their merchandise has been put, and the impossibility of separating that merchandise from the garments without destroying its value, they are entitled to the proceeds of the sale of all the goods, on the principle which applies to cases of accretion and confusion of property. In passing upon these claims it is apparent at the outset that when the attachment issued in the plaintiff’s action against Levy Bros, the defendants in that action had an interest in all the merchandise which could be levied upon and held by the sheriff, and also that, as the property was situated at the time the defendants’ replevin actions were begun, it then being in the custody of the sheriff, and lienee in the custody of the law, those actions of replevin were not maintainable, and possession of the goods could not be lawfully obtained by the defendants under the replevin suits. Wise v. Grant, 140 N. Y. 598. As the matter stood, therefore, when the actions in replevin were begun, which was subsequent to the levy under the attachment, the sheriff had a lien upon the merchandise, and the plaintiffs in the replevin actions could not recover the goods. But, noth withstanding that condition of things, when the defendants now before the court elected to rescind the sales, as they did by their demands on the sheriff and the institution of replevin actions, Moller v. Tuska, 87 N. Y. 166; Powers v. Benedict, 88 N. Y. 605, the lien of the sheriff was displaced in favor of the original title of the sellers of the goods; so that, when thé present action was begun, this plaintiff and the defendants now claiming were standing before the court, the former on an' alleged right as a lien creditor, the latter with a title revested in them to the merchandise, but’ prohibited from taking -possession by reason of the statute, which, in consequence only of the particular situation of the property, deprived them of the substantial right to reduce it to actual possession.

These are the claims, and that is the condition in which they come before the court, and they must be regarded with reference to the equitable rights of the parties, for it is exactly the aspect in which the plaintiff by bringing this suit has chosen to put the matter, and in which it asks the judgment of the court. It seems to me, therefore, that the question of legal right to possession, as predicated only upon the defendants’ claims under the actions of replevin, is not to control in the disposition of the cause, and that, although the actions of replevin were not maintainable, and the property could not be taken from the possession of the sheriff in actions of replevin, yet, as the lien of the sheriff was displaced by the rescission, and the title was revested by the act of rescission, the defendants have shown an equitable title, which can be protected and enforced in'this action, for that would seem , to be the necessary effect of the extinction of whatever lien existed in favor of the plaintiff by reason of the sheriff’s possession; so that, although these actions of replevin were futile as remedies, they nevertheless were effectual as evidences of the intent and deterrnition on the part of the defendants to rescind the contracts of sale, and for the purpose of the restoration of title oí the goods to themselves. It seems to me they therefore stand as having paramount claims in a court of equity to their particular goods, and consequently, to their proceeds, now in the custody of the officer of the court. This -follows from their being the real owners of the goods; and while, under ordinary circumstances, the sheriff would not be enjoined from proceeding under an execution, yet the plaintiff having brought the whole controversy into court, it may be disposed of as justice and equity dictate. It is claimed, however, by the learned counsel for the plaintiff that the only remedy open to the defendants, upon the state of facts disclosed by the submitted record, was in trover against the sheriff. That such action would lie, 1 think, is clear, and I also concur in the argument that nothing in the pleadings in this cause, or in any of the papers now before the court, can turn the defendants’ claims into technical actions of conversion against the sheriff or the plaintiff. But I apprehend that the subject-matter of this action does not come before the court upon a question of pleading, nor are these claims to be disposed of otherwise than according to the equities as they appear by the concession of all of the respective parties. They have been brought before the court by the act of the plaintiff in instituting the suit, and in so doing it has shown that the lien of its process upon the goods has been superseded, and it has also shown that the clear title of the defendants to their goods has been restored; and it would be unjust for the plaintiff to insist that the defendants should be deprived of their equitable rights when the plaintiff itself has no superior equitable claim to have the proceeds of the goods applied to the payment of its debt. A court of equity will not aid in applying the property of a third party to the payment of the debt of a stranger; and, while the defendants gain nothing by their replevin suits, they may stand here on their ownership.

But while I am of the opinion upon all the facts that the defendants are entitled to protection, it can only be granted to the extent of the value of their merchandise which entered into the manufacture of the garments sold. It is true that the general rule of law respecting the accretion and confusion of property, is that as between an innocent party and a wrongdoer, where the property of the former has-been mingled with and cannot be separated from that of the latter, the whole bulk should be adjudged to the former, and that is a rule of strict application between the parties to the transaction. But where the interests of other persons intervene, and full protection can otherwise be given to the innocent person whose goods are thus wrongfully used, the rule should not be applied. The other parties in this case are. the creditors of Levy Bros. It is sufficient for the indemnity and protection of the defendants in this cause that so much of the proceeds of the goods be adjudged to them as is equal to the price at which they sold the goods to Levy Bros., and interest, and to that extent a' decree will’be directed in their favor.

Before dismissing the subject, it is proper to consider a contention made by the defendants — that, notwithstanding the general rule concerning the right to maintain replevin as laid down in the Wise Case, a particular rule of decision has been made in this case, recognizing the validity of the actions brought by these defendants against the sheriff, and that, therefore, the defendants have a legal as well as equitable claim to relief. This contention is based upon certain interlocutory or .collateral proceedings which were had in this case concerning a title to piece or unmanufactured goods which, by the consent of the plaintiff, were restored to the defendants. I do not think any of these proceedings, should be regarded as a final adjudication of the question as to the defendants’ right to the possession of all the goods, manufactured as well as unmanufactured. It is quite apparent from an inspection of these papers that it was the intention of the parties, and of the court in making its orders upon the subject, to separate the two classes of goods ; and, while the right to possession of the goods released from the suit was recognized, it is expressly provided that the proceeds of other goods, (and that refers to the manufacfactured articles,) should be brought into court to await its final order. The clear inference from this is that neither of the parties contemplated that any estoppel should arise by reason of this merely interlocutory proceeding. This question was raised as one of evidence, and is disposed of on the record by the rejection of the documentary evidence which was offered to sustain this claim of an estoppel by adjudication.

One other question was discussed, to which reference should be made, and that is the claim of the learned counsel for the defendants that by the amendment of the Code of Civil Procedure, chapter 305 of the Laws of 1894, modifying the provisions of §1690, the decision in the case of Wise v. Grant has become nullified, and that this amendment has a retroactive operation, and consequently affects this case; so that the actions of replevin, although untenable when brought, have become established by virtue of this subsequent legislation. I do not consider this amendment as having any retrospective effect, nor do I think the intention is to be attributed to the legislature of • enacting a new rule of law to control a pending cause, for such a construction would be to confer a right of possession, which is a substantial legal right, as contradistinguished from a mere remedy, and which right had ño existence at the time the replevin suits were brought The defendants’ rights are purely equitable, and they are considered and recognized only in that light

A decree in accordance with these views may be entered, to be prepared by the attorney for the defendants, and to be settled on two days’ notice.


author: B.UMSEY, J.

text:
    Caroline L. Boehm, Pl’ff, v. The Commercial Alliance Life Insurance Company, Def't.

      (Supreme Court, Steuben Special Term,

      Filed August, 1894.)
    1. Trial—Duty of counsel.
    It is the duty of counsel not only to present to the court all the points upon which they rely, but to call attention of the court fairly and openly to the facts which are relied upon as establishing their propositions.
    2. Insurance—Life—Warranty.
    No statement made to a company as the basis of a contract can be regarded as a warranty, unless the paper in which it is made is, by necessary inference, made a part of the contract.
    8. Same—Construction.
    All the provisions, which are sought to be relied upon to produce a for feiture, ?ire to be construed strictly against the company.
    4. Same.
    The meaning of the word “application” cannot be enlarged for the purpose of introducing into the policy something which is not contained in the application, so that the company may insist upon a forfeiture.
    5. Same—Representations.
    The materiality of the representations made to the medical adviser is properly submitted to the jury.
    6. Same—Question 'for jury.
    The question whether an ordinary cold or a slight indigestion was an illness, within the meaning of a representation that the insured had not been seriously ill, is one for the jury.
    7. Appeal—Charge—Exceptions.
    A single exception to several distinct' propositions in the charge is of no avail, if any of them is good.
    Motion for a new trial on a case.

      Charles F. Miller, for def’t; H. G. Danforth, for pl’ff. ¡¡

   B.UMSEY, J.

Upon this motion tbe defendant raises but one question, although tliat is raised in several .different ways. The point made by it is that certain statements made by the insured, •which will be more particularly referred to hereafter, were warranties, and that, as some of them were not true, there should have been a verdict for the defendant instead of for the plaintiff. It is very doubtful whether the question sought to be presented was raised upon the trial. At the close of the testimony, the defendant moved lor the direction of a verdict upon the ground that Dr. Henckell had attended the deceased during the mouth of Februaiy, 1892, as a'physician. That bn the 4th of March, 1892, the deceased made false answers to certain questions which were stated. That those statements being false by him were material to the company and to their information at the time, and, being falsely represented to the company, the contract did not bind the company thereafter.

Also, upon the ground.that, “subsequent to the issuing of the. policy and' entering into this contract with the company, the deceased was attended by a physician throughout the year; .since the making of the contract he had been attended by Dr. Henckell through the summer. That the application for the 'reinstatement amounts to a representation that the conditions are the same as when first issued.” Also, that no cause of action is made out upon the proofs. \

It will be noticed that this does not raise the question that the statements referred to were warranties, but asks the court to hold that there shall be a nonsuit for the reason that the statements were false and were material, and for that reason did not bind the company. It was not suggested by the counsel in that motion that the statements made were or could be called warranties. As a matter of fact, that particular part of the policy which is now relied upon as making them warranties was not referred to, and the attention of the court was not called to it. It is said by the counsel upon this motion that it was not necessary to call the attention of the court to that part of the policy which raises the material question in this case, because it is claimed to constitute a warranty. This claim, if seriously made, cannot for an instant be sustained. It is the duty of the counsel, not only to present to the court all the points upon which they rely, but to call the attention of the court fairly and openly to the facts which are relied upon as establishing their propositions. Any other course would be a failure of that good faith which counsel, by virtue of their office, are expected to exercise towards the court in which they practice. It is not suggested here that there was any bad faith on the part of counsel for the defendant in the trial of this action. It is quite probable that the clause in question was not brought to his notice. It certainly was not in that part of the policy where anybody would have been likely to look for it, and it would not be brought to his notice, or to the notice of any one else, unless attention was particularly called to it. The p'oint that these answers were warranties was not made upon the motion for a nonsuit, neither was it made at the close of the charge. The jury were particularly told by the court that these answers were not made warranties by the company. That they might have been made warranties, bad the company seen fit to do so, but the company had not done it. To this portion of the charge no exception was taken by counsel. The only exception upon that point of the case was that the counsel objected to the submission to the jury of the question of the materiality of the representations. There was no suggestion at that time in the case that it was claimed that the answers were warranties. On the contrary, the point made was, that they were material as a question of law, and that it was error to submit to the jury the question whether or not they were material.

For these reasons the point which is sought to be made here cannot now be raised in this way.

But if the defendant were in a position to raise the question, I am quite clear that he is entirely wrong in his construction of this contract, and that the statements which are sought to be incorporated into this policy were not incorporated into it by the contract between the parties, and, therefore, they are not warranties, but only representations.

The form of the contract is quite remarkable. The policy upon its face does not incorporate the application into it, nor does it say that the application is a part of the policy. It contaius, however, the following clause: That the Commercial Alliance Life Insurance Company, in consideration of, etc., does hereby promise to pay a certain sum to Caroline L. Boehm, or such other person as the insured may from time - to time designate, with the written consent of the company “ upon the provisions, conditions and agreements on the back hereof, which are made a part of this contract.” Turning now to the provisions, conditions and agreements referred to, we find under the head of “Incontestibility” this provision: “Any other breach of warranty or untrue or incomplete statement in the application for this policy, will render this contract null and,void,” etc. Under the head of “Payment of Premiums ” we find this provision : “ The contract of insurance is contained only in this policy and the application therefor (which is part hereof) taken together.” It will be noticed in these provisions that the thing which is a part of the policy is the application, and that any breach of warranty or incomplete or untrue statement which will render the policy null and void, according to the agreement, is that made in the application and not any other one. Beferring to what is produced here as the application, we find that it is contained on the first page of a certain paper. It commences with the words : “ I hereby apply to the Commercial Alliance Life Insurance Companv, of Ne\y York, for a policy,” etc. It is signed by the insured, Ferdinand J. Boehm, and dated on the 4th day of March, 1892. It contains, above his signature, this statement: “That the entire contract is contained in said policy and in this application.” This paper is form L, as appears in the abstract. The next paper, which is on the back of the application, and is entitled form B in the medical service, is called by the company, “ Declarations to be made to the medical examiner,” etc. It is signed by the insured, as is the application, and he states, above his signature, that he is the person upon whose life the insurance is proposed and who has signed “the foregoing application.” Those are the only places in which the application is referred to. The paper signed by the insured, and called the application, is complete and perfect in itself. It does not contain any of the answers which are complained of by the defendant here. Those answers are contained in another paper with a different title, which does not purport to be a part of the first paper, and which refers to the application as a “ foregoing ’’ paper, from which it is fairly to be inferred that the application is something different from the answers made to the medical examiner.

There is no doubt about the rule that no statement made to an insurance company as the basis of a contract of insurance can be regarded as a warranty, unless the paper in which it is made is by necessary inference made a part of the contract. Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Owens v. Holland Purchase Ins. Co., 56 N. Y. 565. It was held in that case, that unless the paper in which the statements were made was referred to and adopted as a part of the contract, such statements did not become warranties, but were simply representations.

It is also thoroughly settled that all the provisions of a policy of insurance, which are sought to be relied upon to produce a forfeiture, are to be construed strictly against the Company. The rule is so thoroughly settled that no citation of authority is necessary to establish it. It is founded upon a wise policy, because the insurance companies make their own contracts ; they insert in them just what provisions and conditions they see fit, and for that reason it is' assumed that they have made their contracts as strongly in their own favor as it is possible for them to do. As is said by Judge Peckham : In these cases a strict construction must be insisted upon, and the contract resulting in a forfeiture cannot be extended beyond the strict and literal meaning of the words used. In cases where the meaning is not entirely plain, and where it is capable of two constructions, one involving a forfeiture and the other being fair and reasonable and supporting the obligation of the policy against the insurer, that construction is preferred by the courts which does not involve the forfeiture, not only because it is not so harsh, but also because if the language is doubtful it is that employed by the insurer, and should be taken most strongly against him. Holly v. Metropolitan Life Ins. Co., 105 N. Y. 437, 441, 442; 7 St. Rep. 204. It is said by Judge Cowen, in the case of Jefferson Ins. Co. v. Cotheal, 7 Wend. 72, that the doctrine of warranty in the law of insurance is one of great rigor, and for that reason it is never created by construction, and it must appear in express terms or must necessarily result from the nature of the contract.

The first thing £o be noticed in this case is, that the application is not made a part of the policy by anything contained in the policy itself, strictly speaking. It only can be said to be incorporated in the policy as part of it by holding that because the provisions, conditions and agreements on the back of it are made a part of the policy, that the things which in those conditions, provisions and agreements are made a part of the policy are equally incorporated in it as if it had been done by express words on the face of the policy itself. In other words, if the insured wished to learn what constituted his policy, he cannot do so by reading the policy, but he must goto the conditions and provisions on the back of it, and from them he must go to another paper which is referred to in those conditions. When a company has made its policy in that way it is not too hard a construction of such a policy to apply the rule which Judge- Beckham applied in the case above cited, and confine it to the strict and natural meaning of the words used. After running down the several references, we find that the thing which is made a part of this policy is the application, and not only that, but we find that the contract is contained only in the policy and application, and that those two papers contain the whole of it, so we are brought to inquire, what is the application. We find that the company itself has stated what the application is. It has presented to the insured a paper which it has named the application. It has required him to sign and date it, and it has made him state in it that the entire contract is contained in the policy and in “this application.” It is quite true that it has also'required him to answer'certain questions, but there is nothing in the application which incorporates those answers into it, and at the bottom of those very questions we find that the company has referred to the application as another paper, and not included, or a part of the declarations which they have caused to be made. It is quite clear to my mind that the only paper which can be said to be referred to in this policy is that which the company itself has called the application, which is signed by the insured, and which it has made him agree shall be part of the contract. To hold that, when it has expressly made one paper a part of the contract, it shall be permitted to incorporate into that paper a set of answers and questions not referred to in it, some of which are material and some of which are not, would be to perpetrate a great fraud upon any person who made an application for insurance.

These questions which are sought to be put into the application are required to be written by the medical examiner. There are nearly forty different answers, some of which are necessarily not within the personal knowledge of the applicant, many of which, as every applicant for insurance knows, it is utterly impossible to answer with entire accuracy. Yet, if they are made a part of this policy, they are all warranties, and every one of them becomes as material to the contract as the most important piece of information which is given to the company, and the falsity of any one, even the least important, will enable the company to avoid the contract. Le Roy v. Market Fire Ins. Co., 39 N. Y. 90; Dwight v. Germania Life Ins. Co., 103 Id. 341; 3 St. Rep. 115. For this reason it has been held that all statements made in the paper upon which the contract is sought by the insured are to be construed as representations rather than warranties in all cases where such construction is possible. Daniels v. Hudson River Fire Ins. Co., 12 Cush. 416. If the company desired these declarations to the medical examiner to be incorporated in the contract, it would have been very easy to say so. ' Where that is sought to be done in some policies they are especially referred to. It would have been easy in this case for the company to require Boehm to say that the entire contract was contained in -the policy and in the application and in the declarations to the medical examiner, if it wanted them to be made a part of the policy. As it has not done so, it would violate one of the first canons of construction to enlarge the meaning of the word application for the purpose of introducing into the policy something which was not contained in the application so that the company might insist upon a forfeiture.

There is no question, therefore, that the application which by this agreement is made a part of the contract is that paper, and that paper only, which is called ,an application and which is signed as such by the insured. It is not claimed tl^at any of the answers in the application are false, The false answers are those which are made in the declarations to the medial examiner, and, as we have seen, are no part of the application. It is quite true that in the application the insured is made to say that the answers to be made to the medical examiner shall be made the basis to the contract and he warrants the same to be fully complete and true. That provision, however, does not make them part of the application, nor does it give them any further weight than they would have had without it. If the insured had stipulated that any falsity of those statements would avoid the contract a different question might perhaps be presented, but the only untrue or incomplete statements which will avoid the contract are those made in the application.

The question, the false answers of which are relied upon as a defense, are as follows : “Have you ever been seriously ill ? ” To which the answer is, “No.” “Name and residence of your usual medical attendant? ” To which the answer was, “Has none.” “Have you consulted any other physician; if so, when and for what?-” To which the answer was “No,”

These statements were made on the áth da}^ of March, 1892. It appeared by the testimony, and was not disputed, that at fourv different times before the fourth of March the insured was at the office of Dr. Henckell, who examined him and prescribed for him. These four dates were’ on the fourth of February, thirteenth of February, twenty-fourth of February and the second of March. It does not appear accurately either with what disease Boehm suffered, or what the doctor told him about it. It did appear, however, that during all the time previous to the application for insurance the man was at work driving his hack every day, and that at the times he visited the doctor before the application was made he drove to the doctor’s office, upon his hack, or went there on foot. It did not appear anywhere in the testimony that he had, or ever had had, the attendance of any physician except Dr. Henckell, who prescribed for him on the four occasions mentioned above. No other physician had ever been called by him or consulted bv him, so far as appears. Upon this state of the teetimonv the question was submitted to the jury whether, the defendant had satisfied them that Boehm had ever been seriously ill, or whether he had any usual medical attendant,' or whether the representation that he had never consulted a physician was material. The defendant excepted to the submission of the question to the jury of the materiality of the representations. If the court was correct in holding that these answers were representations and not warranties, then there can be no question that their materiality must be submitted to the jury. Mutual Fire Ins. Co. v. Deale, 18 Md. 26; 79 Am. Dec. 673; Clark v. Union Mut. Fire Ins. Co., 40 N. H. 333; 77 Am. Dec. 721. The counsel also1 excepted to the charge of the court as to what usually constituted regular medical attendance, and to the charge of the court as to what constitutes serious illness. Nothing was said in the brief as to these exceptions, and it is not supposed that there was any valid objection to that part of the charge.

It appeared in the case that in the month of November, 1892, this policy was permitted to lapse, and that an application was made on the 18th of .November, 1892, for a reinstatement. In this application it was stated that Boehm was then in sound physical and mental condition; that he had not been sick, and the parties agreed that that application should form part of the contract of insurance, together with the original application. It may be conceded, for the purpose of this motion, that from the time the policy was reinstated the application for reinstatement became a part of it, and that a statement that Boehm had not been sick from the time of the first making of the policy down to the eighteenth day of November was a warranty. That being so, the question then arose whether there was a breach of that warranty. The testimony showed that after the policy had been granted, and on the 15th and 21st of August, 1892, Boehm was at the office of Dr. Henckell, who then prescribed for him. What was the nature of the indisposition from which he suffered, if any, does not appear. Dr. Henckell made this statement: “I did not at any time, before this 26th of November, 1892, attend him at his house; always at my office, 116 Sophia street; during this time he was ill.” Precisely what time was referred to by that answer does not appear. It was claimed upon the motion for a nonsuit that the application for a reinstatement amounted to a representation that the conditions were the same as when the policy was first issued. The precise meaning of this claim is not perceived, and it is quite doubtful just what point was intended to be made by it. It was not suggested to the court at that time that the statement for the application of reinstatement was a warranty, nor that the statements made in that application were in themselves false. No such point .was made, nor was any such reason suggested, arising out of the application for reinstatement, why a verdict should be ordered. The court submitted to the jury the question whether that statement of Boehm, in the application for a reinstatement, that he had not been sick, was false, and also the question whether, if false, it was a representation as to a material fact. To this act of the court no exception was taken, and no request was made to the court to submit any question to the jury based upon this reinstatement. For that reason the defendant is not now in a situation to raise any question upon the charge of the court in that behalf.

It is quite true that the case states that the defendant’s counsel objected to the submission to the jury of the question of the materiality of the representations which are mentioned in the charge of the court, but if that objection was intended for an ex-ceptipn to the charge of the court in any respect, it was entirely too broad. As we have seen, the materiality of the representations contained in the declarations to the medical examiner was properly submitted to the jury. This objection included the materiality of those representations, as well as the representations stated in the application for reinstatement. It is well settled that a single exception to several distinct propositions in the charge is of no avail if any of them is good. Haggart v. Morgan, 5 N. Y. 422. Within this rule the sweeping objection of counsel to submission to the jury of the. materiality of any of the representations is of no avail, although the submission of one of them might not have been proper.

There was certainly no error in that portion of the charge of the court which submitted to the jury the question whether Boehm had been sick before the 18th of November. It was undisputed upon the testimony that up to that time and for some time after-wards he had been continually attending to his business, which was that of a hackman, and none of .his neighbors knew or had any information that he was in any way out of health. The most that could be said was, that while he was engaged in his daily occupation he consulted Dr. Henckell either for a cold or for an indigestion, or for something of that kind. There is not one particle of evidence in this case that his illness, whatever it was, was anything more than an ordinary cold or a slight indigestion, which might have been the effect of a cold. Whether such an ailment of that kind was an illness within the meaning of this statement was clearly a question for the jury. It surely cannot be that a man who takes out a policy of life insurance must, at his peril, recollect accurately every occasion upon which he has suffered from a cold or a slight attack of indigestion, and it is equally clear that the question whether such an ailment can be said to make a man sick is to be decided by the jury, and cannot be passed upon as a question of law by the court. Indeed, there is not one particle of evidence in this case which would warrant the defendant in interposing this defense.'

But with regard to the submission to the jury of the question whether he had been sick before the 18th day of November, it is sufficient to say that no exception was taken and no question based upon that ruling is raised in this case.

The motiog for a new trial must be denied, with costs.

Motion denied, with costs.