author: MERWIN, J.

text:
    The People, App’lt, v. Industrial Benefit Association, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Insurance—Life—Co-operative—Infants.
    It was the intention of the legislature by article 6 of chapter 690 of 189$ to limit the business of any corporation, engaged in life insurance -upon the co operative or assessment plan, to that business as defined by 201 of said act.
    2. Same.
    A co-operative association has no right to issue yearly renewable term policies of insurance upon the lives of infants.
    3. Statutes—Instruction.
    When a general intention is expressed, and also a particular intention, - incompatible with the general intention, the particular intention is to be considered in the nature of an exception.
    Appeal from an interlocutory judgment, sustaining a demurrer to the complaint.
    T. E. Hancock, Atty. Gen., and John W. Hogan, for the People ; Walter S. MacGregor, for resp’t.
   MERWIN, J.

—By the complaint it appears that the defendant is a domestic corporation, organized under and pursuant to chapter 175 of the Laws of 1883, and the several acts supplemental thereto and amendatory thereof, and the business carried on by it has been and is life insurance upon the co-operative or assessment plan, under and pursuant to its articles of incorporation and bylaws ; that in its by-laws provision is made for the issuing of policies of insurance, in one branch to persons between seventeen and sixty years of age, in another to persons between one and seventy years of age, and in another to persons between the ages of seventeen and eighty years, and it is provided that no other than renewable term policies of insurance will be issued on the lives of persons under eighteen years of age, and then only upon application of the parent or guardian; that since the 12th day of September, 1891, the defendant has been, and still is, issuing yearly renewable term policies of insurance upon the lives of infants of the age of one year and upward and under the age of eighteen years, upon application made on behalf of said infants by persons liable for their support, the application being in the following forms

“ I, the undersigned, being liable for the support of--, an infant, and for the purpose of protecting myself against such lia* u bility, do, on behalf of said infant, hereby apply for a yearly renewable term policy of insurance in the above association upon its life, and for the purpose of securing such a policy is said association, for said infant, make the following statement, to wit.”

Then came divers questions to be answered, and then a final statement, in which was the following clause:

“ And in consideration of the issuance of the policy hereby applied for I guaranty that said infant shall abide by all the condi» 'tions and agreements contained therein, and in the by-laws of said association as they now exist or may be hereafter enacted; provided, that the failure to pay the premiums required by any policy issued hereon shall create no debt against said infant or its estate, but shall only operate to forfeit the policy.”

A form of the policies issued was annexed to the complaint.

The plaintiff alleges that the defendant, under its charter and the insurance law of the state, has no right to issue yearly renewable term policies on the lives of infants. The defendant claims it has a right to doso, under section 55 of the insurance law (Laws 1892, c. 690). Whether it has such right is the question involved in this appeal. Under the act of 1883 the defendant had a right to carry on the business of insurance upon the co-operative or assessment plan, and section 5 of that act defined what should be deemed to be insurance upon that plan. An essential element of it was a certificateor policy to, or an agreement with, its members for the pay ment of money or the rendering of a benefit “upon the decease of a member.” So that apparently the lives only of members were to be insured, and members only could be policy holders. In Re Globe Mut. Ben. Ass’n, 135 N. Y. 289; 48 St. Rep. 396, it was held that a corporation organized under the act of 1883 had no power to receive infants as members, and an order was affirmed which restrained such a corporation from continuing to transact business as far as the insurance of minors was concerned. That order proceeded, as the court said, “ on the ground that the insurance of infants is not within the powers of corporations organized under this statute, and is inconsistent with the statutory scheme and the legislative intention.” “ Adult persons were contemplated as entitled to membership.” The act of 1883 was repealed by the insurance law, but it was provided by section 206 of that law, which was a part of article 6, relating to “life or casualty corporations upon the co-operative or assessment plan,” that any existing domestic corporation transacting insurance business on that plan “ may continue to exercise all the rights, powers and privileges not inconsistent with this article, pursuant to its articles of association or incorporation, the same as if re-incorporated under this article.” And it was provided by section 292 that the “ provisions of this chapter, so Ear as they are substantially the same as those of laws existing on September 30, 1892, shall be construed as a continuation of such laws, modified or amended, .according to the language employed in this chapter and not as new enactments, and shall be applicable to all corporations formed under laws repealed by this chapter.” So that the life of the defendant was continued, subject, however", to the insurance law, so far as applicable. By the first section of article 6, above referred to, being section 200 of the insurance law, provision is made for the organization of corporations for • the purpose of transacting the business of life or casualty insurance upon the co-operative or assessment plan. By section 201 it is provided as follows:

“Any corporation, association or society which issues any certificate, policy or other evidence of interest to, or makes any promises or agreement with its members, whereby, upon the decease of a member any money or other benefit, charity, relief or aid is to be paid, provided or rendered by such corporation, association or society to his legal representatives, or to the beneficiary designated by him, which money, benefit, charity, rfilief or aid is derived from voluntary donations or from admission fees, dues or assessments, or any of them, collected or so be collected from the members thereof, or members of a class therein, or interest, or accretions thereon, or accumulation thereof, or rebates from amounts payable to beneficiaries or heirs ; and wherein the money or other benefit, charity,’relief or aid, so realized, is applied to or accumulated for the uses and purposes herein specified, or of such corporation, association or society, and the expenses of the management and prosecution of its business, shall be deemed to be engaged in the business of life insurance upon the co-operative or assessment plan, and shall be subject to the provisions of this article.”

It will be observed by this section, like section 5 of the act of 1883, the business of' life insurance upon the co-operative or assessment plan was confined to cases where policies or certificates were issued to, or agreements made with, “ members ” of the corporation, for the rendering of money or other benefit “ upon the decease of a member.” By section 209 in the same article it is provided that every corporation or organization of this or arty other state or country transacting the business of life insurance upon the co-operative or assessment plan as defined in the article shall be subject to all the provisions of the article, and not to the provisions of the article, and not to the provisions of article 2. That article relates generally to life, health, and casulty insurance corporations. In section 209 it is also provided that:

- “ All associations, societies, companies, corporations or organizations, now transacting or hereafter desiring to transact the business of life or casualty insurance in this state upon any other plan than that defined in and by this article, thall comply with all the provisions of the general life and health insurance laws.”

By section 205 of the same article it is provided that any foreign corporation which is authorized by the law under which it is incorporated'to issue contracts of insurance not authorized by this article, shall not be authorized to transact any business authorized by this article within this state until it files with the superintendent of insurance an agreement duly executed by it that “ it will not enter into or issue within thé state of Hew York any contract of insurance, policy or agreement not authorized by this article.” It seems to be reasonably clear that, taking article 6 by itself, it must be deemed to have been the intention of the legislature to limit the business of any corporation engaged in life insurance upon the co-operative or assessment plan to that business as defined by section 201. It is practically conceded that under article 6, standing alone, the business here in controversy could not be done. Section 201 is, so far as this question is concerned, substantially like section 5 of the act of 1883, and the case cited from the court of appeals would apply. Does section 55 of the insurance law operate to enlarge the scope of the business of such corporation? Section 55 is part of article 1 of the insurance law. That article is headed “ General Provisions,” That section, so far as it is important here, is as follows :

“ Ho policy of insurance shall be issued upon any property except upon the application and in the name of some person having an interest in the property. Ho policy or agreement for insurance shall be issued upon the life or health of another or against loss of disablement by accident, except upon the application of the person insured; but a wife may take a policy of insurance upon the life or health of her husband or against loss by his disablement by accident; an employer may take out a policy of accident insurance covering his employes collectively for the benefit of such as may be injured, and a person liable for the support of a child of the age of one year and upward may take a yearly renewable term policy of insurance thereon, the amount payable under which may be made to increase with advancing age, and which shall not exceed the sums specified in the following table, the ages wherein specified being the age at time of death, and which, after the age of thirteen, may become an ordinary life policy for an amount not exceeding the sum specified in the table.”

The defendant claims the benefit of the general provision that a person liable for • the support of a child may take a yeurly renewable term policy of insurance thereon. This is stated in the section as one of the exceptions to the general rule that no policy or agreement shall be issued except upon the application of the person insured. The whole section, taken together, applies more naturally tocases within the general life, health, and accident insurance laws, and this may be said specially of the last clause, inasmuch as the yearly renewable policy there mentioned may, in a contingency there specified, become an ordinary life policy, such as corporations upon the co-operative or assessment plan have no right to issue. Assuming, as I think we must, that by article 6 there was a manifest intention to limit that business to a particular method and scope, the general provisions of section 55, if applied to such corporations, would extend their scope, and so far would be inconsistent with and override the particular provisions of article 6, A case is therefore presented for the application of the general rule in the construction of statutes that when a general intention is expressed, and also a particular intention, incompatible with the general intention, the particular intention is to be considered in the nature of an exception. Hoey v. Gilroy, 129 N. Y. 132, 138; 41 St. Rep. 181; Dwar. St. 273; Sedg. St. Const. (2 ed.) 361; 23 Am. & Eng. Enc. Law, 426; Pretty v. Solly, 26 Beav. 610. In the case last cited it is said :

“ The rule is that, wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to effect only the other parts of the statute to which it may properly apply.” '

Applying this doctrine, the general provision in section 55 would not be deemed to extend the scope of article 6. Besides, it would seem that the issuing of yearly renewable term policies was outside of any power given by article 6. The provision in section 55 does not confer power to issue such policies; it simply provides that a person in a certain situation “ may take ” such a policy. The right to issue must be given by some other statutory provision. Undoubtedly corporations engaged in the general life insurance business have such authority. 3 Kent, Comm. 356; 1 Bac. Ben. Soc. § 167. We are of the opinion that under the allegations of the complaint and the law applicable thereto the defendant is not entitled to the benefit of the general provision in section 55, and that-it has not the right to issue yearly renewable .term policies of insurance upon the lives of infants. The judgment must therefore be reversed.

Interlocutory judgment reversed, with costs, and the demurrer overruled, with costs, with leave to defendant to answer in the usual time upon payment of the costs of the demurrer and of the appeal.

All concur,


source: Caselaw Access Project

author: ADAMS, J.

license: Public Domain

text:
    George H. Humphrey, as Executor, etc., App’lt, v. M. Leonora Sweeting et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895 )
    1. Trial—Motion for new trial.
    The omission of plaintiff to move for a new trial indicates that he is not only content with the conclusion reached by the jury, but that lie places no reliance upon any exceptions taken during the stage of the trial.
    3. Payment—Proof—Sufficiency.
    Where, in an action to foreclose a mortgage, it appears that endorsements thereon show payment in full, that there were considerations for them, and that the assignee of the mortgage has stated to the husband of the mortgagor and to the town assessors that the mortgage was paid, the evidence is sufficient"to prove payment.
    8. Witness—Competency—Section 829 of the Code.
    Section 829 of the Code does not exclude the testimony of the husband of a mortgagor in an action of foreclosure, though a party defendant to the action.
    Appeal from a judgment dismissing the complaint.
    F. E. Drake, for app’lt ; W. W. Armstrong, for resp’ts.
   ADAMS, J.

—This action was brought to foreclose a mortgage executed by the defendant, who was then unmarried, to one Holmes, ana subsequently assigned to the testatrix. The defense was payment, to sustain which the defendant introduced in evidence the written assignment of the mortgage in suit, and the bond accompanying the same, to the testatrix, who was, the defendant’s mother, upon which assignment appear five indorsements, viz.: One of $300, of the date of May 31, 1886; one of “$200, for building a barn ” ; one of $260; one of “ $100 in bank ”; and the last indorsement reads, “ Paid in full,” after which appears the testatrix’s name, “ Martha R Cowley.” Upon the trial, it would seem from the record that an issue was raised as to the genuineness of the testatrix’s signature, and also of the handwriting of the several indorsements; but the case has been settled in such a manner as to indicate that, for the purposes of this appeal, that issue has been abandoned, and the only evidence retained which bears upon this question sufficiently establishes the fact that all the indorsements mentioned are in the handwrittxng of Mrs. Cowley. This being the situation, the principal question presented for our consideration is whether or not the evidence in the case will sustain the vei’dict of the jury and the finding of the court that the bond and mortgage in suit have been paid. It is to be noted in this connection that after the verdict of the jury had been rendei’ed, by which they find that the bond and mortgage have been paid, in full, no motion for new trial was made by the plaintiff. This omission only indicates that counsel was not only content with the conclusion reached by the jury, but that he placed no reliance upon any exceptions taken during that stage of the trial. At all events, the verdict of the jury and the charge which pi’eceded it ai-e of little importance, provided the fact subsequently found by the court is sustained by the evidence. First Nat Bank of Chicago v. Dean, 137 N. Y. 110-116 ; 50 St. Rep. 194. Right here it becomes important to bear in mind' that this fact is not necessarily that the debt or any part of it has been released, but that it has been in some manner liquidated or extinguished; and in this aspect of the case it is a matter of minor consideration whether or not the learned trial judge was correct in his instructions to the jury of the law of the case, so far as the question of an executed or completed gift is concerned.

Upon a careful reading of the evidence, which appears to be practically ex parte, I am of the opinion that it is sufficient to raise the presumption of payment,which, in the absence of any evidence to repel such presumption, is, in turn, sufficient to uphold the judgment. It appears by the record, that the first payment of $300, and the last one, of $100, stand unchallenged, and they must be regarded as conceded facts. The indorsement of $260 represents the amount of a note made by the testatrix’s husband, which was held by Leonora, and which she destroyed at about the time the indorsement was made. Surely, there is nothing extreme in the presumption that some consideration passed to the mortgagee from her husband which induced her to apply the amount of this note in part payment of her mortgage, and that' it was the knowledge of the existence of some such arrangement between her father and mother which induced the defendant to destroy the only evidence she possessed of the'former’s indebtedness to her. As to the remaining indorsements, the evidence is even more satisfactory. It appears that Leonora had built a barn upon her mother’s premises, at a cost of $220, and had made some repairs to the “brick house” belonging to her, at an expenditure of $123; and this last-named sum was a few dollars more than sufficient to pay what remained of the principal sum secured by the mortgage after applying the payments represented by the preceding indorsements. Thus is established direct proof of actual and adequate consideration for these two indorsements; and this evidence is materially strengthened by other facts in the case, namely, the statement made by Mrs. Cowley to the defendant’s husband that the mortgage was paid and discharged, and a like statement to the town assessors, in consequence of which the assessment therefor was stricken from the roll. To these must be added, and considered in connection therewith, the indorsements themselves, to which, inasmuch as they are in the mortgagee’s own hand, some weight ought certainly to attach.

The only other point discussed upon the argument arises upon the admission of the evidence of the defendant’s husband, the contention being that it was incompetent under section 829 of the Code of Civil Procedure. Of this it is sufficient to say that John B. Sweeting, although a party defendant, was not necessarily so, and his interest in the event of the action was not such as to preclude his giving testimony in the defendant’s behalf. Fogal v. Page, 37 St. Rep. 280; Iri re Clark, 40 Hun, 233; Whitman v. Foley, 125 N. Y. 651; 36 St. Rep. 133.

The result of the views here expressed is that the judgment appealed from should be affirmed.

All concur


author: LEWIS, J.

text:
    Hosea Shipman, App’lt, v. Herbert A. Learn et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Malicious prosecution—Probable cause—Burden of proof.
    In an action for malicious prosecution, the burden is upon the plaintiff to prove, by circumstances or otherwise, that the defendants had no probable ground for instigating the prosecution.
    2. Same.
    Where the facts and circumstances of the case are undisputed, the question whether they amounted to a probable cause for the prosecution is one of law for the decision of the court.
    3. Same.
    Where the facts and circumstances are such as to justify the defendants in believing that the plaintiff has been guilty of the crime charged against him, and they institute the prosecution believing that he has committed the crime of larceny, they are not liable in an action for malicious prosecution, even though one of the defendants may have been actuated by motives of revenge in instituting the prosecution.
    Appeal from a judgment entered upon a nonsuit, on the ground that the evidence was insufficient to show want of probable cause for plaintiff’s arrest.
    Henry Donnelly, for app’lt ; J. R. Jewell, for resp’ts.
   LEWIS, J.

—This action was brought by the plaintiff to recover damages for an alleged malicious prosecution of the plaintiff by the defendants. One Jesse Slocum was the owner of a chestnut orchard in the county of Cattaraugus. He had made an arrangement with the defendant Learn to gather the chestnuts in the orchard upon shares. Learn had employed the defendant Booth, who resided in the vicinity of the orchard, to look after the chestnuts and protect them from the depredation of others. The plaintiff, in company with some of his friends, had occasion to pass the orchard in question, on his way to another chestnut orchard" in the vicinity, where he and his friends were intending to gather some chestnuts. As they came to the Jesse Slocum orchard, plaintiff and his party stopped to get some chestnuts. The son-in-law of the plaintiff, Mr. Porter, climbed into one of the trees for the purpose of shaking off some chestnuts. The defendant Booth at this time appeared upon the scene, and inquired of the plaintiff and .his party if they had permission of the owner to gather chestnuts. On receiving a negative reply he directed them all to leave the orchard. Porter at once came down from the tree. Booth went away. He returned in about five minutes, and found the plaintiff and his party still near the orchard. Booth thereupon again directed them to leave the premises, and threatened to make trouble for the plaintiff and his party.' Plaintiff, upon being informed by Booth of Learn’s interest in the chestnuts, told Booth that he knew Mr. Learn, and would pay him for what chestnuts they had taken. The plaintiff’s party had with them a small pail and a grape basket. The defendants thereafter appeavecL before a justice of the peace of the county, and preferred a charge of larceny against the plaintiff and his son-in-law. The justice issued a warrant against plaintiff. The plaintiff was arrested, and tried and acquitted of the charge, ánd thereupon brought this action. Upon the 'motion of defendants’ attorney, the plaintiff was nonsuited at the close of his evidence; upon the ground that he had failed to establish a want of probable cause for the prosecution, on the part of the defendants.

The burden was upon the plaintiff to prove,' by circumstances or otherwise, that the defendants had no probable ground for instituting the prosecution. Kline v. Hibbard, 80 Hun, 50; 61 St. Rep. 341. The facts and circumstances of the case being undisputed, whether they amounted to a probable cause for the prosecution was a question of law for the decision of the court. Hazzard v. Flury, 120 N. Y. 223; 30 St. Rep. 906. Booth found the plaintiff and his party in the act of appropriating to their own use property which did not belong to them, without the consent of the owner. They had with them a basket and a pail, convenient articles with which to take away any chestnuts which they might obtain. The evidence thus presented to Booth was quite sufficient to justify his conclusion that they were engaged in committing the crime of larceny. Without expressing any opinion as to the good taste and propriety of the defendants’ preferring the serious charge of larceny against the plaintiff under the circumstances, it cannot be doubted that there was sufficient evidence to justify the defendants in the believe that the plaintiff had been guilty at least of the technical crime of petit larceny. Plaintiff had appropriated to his own use the property of another, under circumstances which, so far as they presented themselves to the defendants, amounted to the crime of larceny. Pen. Code, § 528.

It is urged by the appellant’s counsel, that the prosecution was instituted by the defendants for the purpose of revenge, and our attention is called to the declaration of the defendant Booth that he would report the facts to Learn, and, if he could have his way, he would prosecute the plaintiff, with a view of having revenge. If, as we have suggested, the facts and circumstances were such as to justify the defendants in believing that the plaintiff had been guilty of the crime charged against him, and they instituted the prosecution believing that he had committed the crime- of larceny, they are not liable in an action of malicious prosecution, even though the defendant Booth may have been actuated by motives of revenge in instituting the prosecution. The plaintiff, we think, failed to make a case entitling him to a verdict.

The judgment appealed from should be affirmed.

All concur.


author: BARTLETT, J.

text:
    In the matter of a Proceeding by General Guardian of Peter Metzger, v. Matthias Schneider, as Executor, etc., to Compel an Accounting.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 21, 1896.)

    1. Reference—Accounts of guardian.
    Upon a reference on a judicial settlement, the referee may allow the executors of a deceased guardian, to whose account objections are filed, to file a supplementary account showing payments made since the first account was filed,
    2. Guardian and ward—Accounting—Costs.
    In such case, where an objection to the accounts of the executor, filed on account of the infant, is justified, rendering a reference necessary, the executor’s disbursements in the proceeding will not be allowed from the ward’s estate.
    Appeal from a decree entered upon the findings of the referee.
    William F. Randel, for app’lt ; John A. Taylor, for resp’t executors.
   BARTLETT, J.

—This proceeding was instituted by the present general guardian of Peter Metzger, an infant, to compel an accounting by the executors of a former general guardian. The executors filed an account, to which objections were interposed in behalf of the infant; and the surrogate thereupon referred the matter to a referee, to hear and determine all questions arising upon the settlement of the account which the surrogate had power to determine, and to make a report thereon, subject to confirmation or modification by the surrogate. Code Civ. Proc. § 2546. Among the items which the accounting executors sought to be allowed was the sum of $500, being the amount of a bill of Messrs. Fisher & Yoltz, their attorneys, for sendees in advising the executors in reference to the estate, and in preparing the final account of the deceased guardian. Early in the proceedings before the referee" it appeared that this bill had not then been paid. Subsequently, and after its payment by the executors, they asked and obtained leave from the referee to file a supplemental account, in which this item of $500 was set forth again, together with a statement that the bill was paid. Some other items, which do not seem to be of any importance on this appeal, are included in the supplemental account.

The learned counsel for the appellant insists that the referee had . no power to permit the executors to file any supplemental account at all, in the absence of the consent of all parties, unless a new citation was first issued and served. The powers of a referee in the surrogate’s court under section 2546 of the Code of Civil Procedure were discussed to some extent, but not to determined, by the court of appeals in Re Clark, 119 N. Y. 430; 29 St. Rep. 682. The Code provides that “that provisions of this act, applicable to a reference by the supreme court, apply to a reference made as prescribed in this section, so far as they can be applied in substance without regard to the form of the proceeding.” Judge Mnch declared that this very general language seemed to. open everything, and settle nothing, but found it possible to decide the case without any interpretation of the clause thus criticised. In the case of Eldred v. Eames, 115 N. Y. 401; 26 St. Rep. 277, it was held that a referee to whom a claim against the estate of a deceased person was referred, under the Revised Statutes had no authority to allow an amendment of such claim. This decision was placed on the ground that it is only the claim which has been rejected by the executor which can be referred in a proceeding of that sort, while a claim amended on the reference would be one which the defendant had never consented to refer. No such reasoning can be urged against the amendment allowed in the present case. In Re Hart, 60 Hun, 516; 39 St. Rep. 521, the referee, upon an accounting in the surrogate’s court, was substained in his refusal to consider claims' which the creditors sought to establish against the accounting administrators without having mentioned such claims in any way in their objections. The general term declined to permit an amendment of the objectors nunc pro tunc upon the argument of the appeal, saying that the court never amended pleadings nunc pro tunc for the purpose of reversing a judgment; but there is nothing in the opinion relative to the referee’s power to permit amendments.

Without attempting to define with exactitude the powers of a referee in the surrogate’s court under section 2546 of the Code of Civil Procedure, we are satisfied that the referee in the case at bar possessed authority to allow the accounting executors to file the supplemental account which appears in this record. The accounting was not a voluntary proceeding on their part, but they were brought into court upon a petition filed in behalf of the infant, praying that an order be granted requiring them to show cause why there should not be a judicial settlement of the account of the guardian of whose estate they were the executors. They answered the demand thus made against them by filing one account showing what had been done in reference to the estate of the infant up to that time. A little later, having paid the item for legal services already mentioned, the referee gave them leave to file the supplemental account, which adds little t'o the original,except by showing the actual payment of that item. No new citation was necessary, because the parties to whom it would have issued, the executors of the deceased guardian, had already been cited, and were before the court, Nor is it perceived how the action of the referee in permitting the supplemental account to, be filed can have harmed the appellant. Objecting, as he did, to the icem for legal services, he would, doubtless, have litigated its propriety upon a subsequent accounting if not in this proceeding, and as the expense had been incurred by the executors (a fact which appeared in the original account), it seems to us that the referee exercised a wise' discretion, after payment had been made, to allow such payment to be set up in a supplemental account, as all questions concerning it could thus be disposed of with the least delay to all parties interested.

We agree with the referee, also, that the services rendered by Messrs. Fisher & Voltz were fairly worth the sum paid to them, and were so useful to the estate of the infant as to be properly chargeable, against it.

The only other question of fact which requires consideration grows out of the finding that the account filed by the executors poes not give any explanation of an apparent shortage of $800 of principal. It is evident from the proofs, however, that this apparent shortage arose from an erroneous computation of the value of the securities constituting 'the original principal of $17,600, when their aggregate value was really only $16,800.

Notwithstanding that the conclusions of the referee were thus adverse to the appellant, he expressly finds that the contestant was justified in filing his objections to the account under examination. If this view is correct,—and we think it is,—the estate of the infant ought not to be burdened with so heavy a bill of costs as is imposed upon it by the decree appealed from. In addition to the fees of the referee and stenographer, amounting to $754.80, costs and counsel fee, aggregating $1,025.50, are awarded to the ace mnting executors, to be paid out of the infant’s estate. There was an unexplained discrepancy in the account of $800, which this infant was entitled to have explained, and-which alone constituted a sufficient reason for filing objections in his behalf; yet the result of allowing so large a bill of costs against the estate is to make him pay more than $800 for the explanation which was due to him as a matter of right. In view of all the circumstances, we think the sum awarded to the executors for costs, counsel fee, etc., ought to be stricken out of the decree.

Decree modified by striking out the award of $1,025.50, costs, etc., to the executors, and as thus modified, affirmed, without costs of this appeal.


author: PRATT, J.

text:
    Arthur W. Caziarc, Resp’t v. Abram French Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 27, 1895.)

    Pleading—Bill op particulars.
    Where, in an action for services, the defendant, in addition to a general denial, has set up in what way he claims the plaintiff has broken the contract of employment, the plaintiff should be apprised of the time and place, when and where the occasion took place upon which the defendant intends to offer proof. ...... ^
    Appeal from an order requiring defendant to furnish a bill of particulars. _ ___
    Butler, Stillman & Hubbard, for app’lt ; Peck & Field, for resp’t.
   PRATT, J.

—This is an appeal from an order requiring the defendant to serve a verified bill of particulars of the matter set up in the answer. In addition to a general denial, the defendant has set up in what way he claims the plaintiff has broken the contract of employment, and it is only fair the plaintiff should be apprised of the time and place when and where the occasions took place upon which he intends to offer proof. He will not be required to disclose his evidence, or the names of his witnesses. The order went too far in requiring the defendant to state the names of the persons in whose presence the plaintiff was intoxicated. With the modification of striking out that part of the order, the order appealed from is affirmed, without costs to either party.

All concur.


text:
    The People, Pl’ff, v. Life and Reserve Association of Buffalo, Def't, Frank Spooner et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Insurance—Co-operative—Reserve and death fund.
    Where a certain sum is taken from the reserve fund and becomes a part of the death fund, it ceases to have any of the qualities'or attributes of a reserve fund and becomes a common fund for the payment of death claims, and under the Constitution and the certificates issued by the association, all ' - the member's of the association are entitled to share equally in the death fund, whether holders of life certificates or live reserve certificates.
    2. Same.
    One transfer of a maximun claim from a reserve fund to the death fund can be made at a time, and when no transfer has in fact been made before the commencement of the .action, only one is made by construction, and the operation cannot be repeated after the action is commenced, to meet the balance of the death claims then unpaid or such as might arise after that time.
    3. Same.
    The court, in winding up a corporation and distributing its property, does so upon the basis and consideration that exist when the action is commenced, and the rights of all the parties interested are adjusted as of that dale. ’
    4. Same.
    The holders of life reserve certificates, and the representatives of such holders as have died, have an equitable lien upon all the reserve funds of the association in the proportion which the amounts contributed by the holders thereof respectively bear to the amount of such fund left in the hands of the receiver for distribution.
    Proceeding by the attorney general of the state of New York to dissolve the Life & Reserve Association of Buffalo, N. Y, and to distribute its assets. A receiver was appointed, and questions in controversy between certain claimants were tried by a referee. From an order on referee’s findings, claimants Frank Spooner, Ella Royce, and John P. Riley appeal. The receiver was also directed to appeal.

      This action was commenced by the attorney general on the 23d of September, 1892, to dissolve the defendant, a co-operative insurance company, and to distribute its assets. A receiver was appointed in the action, who took possession of the assets. Controversies having arisen among the different claimants to the fund and property of the corporation, the court appointed the Honorable Henry F. Allen a referee, who took proof concerning the same, and made a report to this court under date of April 2,1895. The particular claims upon which the report was made were those of Frank Spooner and Ella Royce, who were beneficiaries under certificates known as “life reserve certificates,” held be members of the association. The two cases are exactly similar as to the questions involved, and were considered together by the referee, by the special term, and by this court. As before said, the company is a co-operative insurance company. It issued certificates to its members entitling them to certain rights and privileges in the corporation, the certificates being available in part during the life of the certificate holder, and, in case of partial or total disability, entirely available to the beneficiary named therein upon the death of the holder of the certificate. The constitution of the association provided for the issuing of two kinds of certificates or policies, one of which was known as a “life reserve certificate” and the other as a “life certificate.” The life reserve certificate provided, in effect, that in consideration of warranties and statements made in the application therefor, and the annual dues and all assessments, to be paid at the office of the association within thirty days from notice of assessment, the holder became a member of the Life & Reserve Association; and that the death fund of the association was set apart from assessments for the exclusive and sole purpose of paying claims by death or total disability. The certificate -was for $1,000, and provided that some reserve fund should be created, to be securely invested in United States bonds and other securities, and that after four years of continuous membership a bond would be issued to the holder of the certificate for the reserve fund set apart for it; the interest to be paid semiannually, and applicable to future assessments, principal to be paid in six years; and that the certificate was issued and accepted subject to the provisions and constitution and by-laws of the association. The life certificates were in the same form, excepting the provisions as to the reserve fund and bonds that might be given therefor. The constitution of the association created three funds, lcnow.n as the “death fund,” the “reserve fund,” and the “safety fund." The reserve fund was created by assessments made exclusively upon the holders of reserve certificates. The death fund was created by equal assessments upon all the members of the association, whether holding life and reserve certificates or life certificates,—that is to say, eighty-two per cent, thereof; the balance, eighteen per cent., constituted the safety fund. And the constitution further provided, in providing for the creation of the death fund, and for its continuance to pay death .losses, that: “There shall be accumulated in the death fund a permanent sum from surplus of death assessments after the payment of claims assessed for or from transferring from the reserve fund of not less than the proceeds of one death assessment of the maximum death claim [$10,000], which shall be invested in such securities as the laws of the state permit insurance companies to invest their capital in, or deposited to the credit of the association in a bank or trust company, and which, together with all interest and accretions thereto, shall be held in trust, unimpaired, for the benefit of policy or certificate holders, for the purpose of paying death or disability claims only.”
    At the commencement of this action there had accrued a num-i ber of death claims, duly proved, under reserve certificates amount-^ ing to about $23,000. There had also accrued death claims under life certificates to an amount exceeding $25,000. There had been no actual transfer by the officers of the association, at the time of the commencement of this action from the reserve fund of one maximum death claim of $10,000, as authorized by the constitution of the association. The great bulk of the property of the association consisted of bonds, mortgages, and other securities, embracing the reserve fund of the association. As matter of fact, the corporation was insolvent, unable to pay the various claims upon it and fully protect its certificate holders living and the beneficiaries of those dead ; and there was no money or funds in the death fund, unless the said sum of $10,000 should be regarded and treated as a part of such death fund. The claimants Spooner'and Royce demanded payment in full of their respective claims, as being death claims due at the time the action was commenced, and as entitled to be first paid out of the reserve fund. The referee reported against this claim, and held that “the reserve fund should be distributed to the living members of the association of the life and reserve class in good standing, and representatives of the deceased members of such class of like standing dying before or after the commencement of this action, in the proportion which the amounts contributed by such members thereto respectively bear to the amount of said fund left in the hands of the receiver for distribution.” He further reported that the death claims under the life certificates were not entitled to share in the reserve fund, and based • that conclusion upon the provisions of the constitution, which provided as follows (article 2, § 3); “No person holding a life certificate shall be entitled to, or shall in any manner derive any benefit from, the reserve fund, but such fund shall be and is for persons holding life reserve certificates only.” A motion was made at the Erie special term of the supreme court to confirm this report. Opposition was made to the confirmation by the counsel for Royce and Spooner. Opposition also was made by those holding death claims growing out of life certificates on account of the exclusion of these certificates by the referee from payment out of the reserve fund. The special term made an order sustaining the referee and excluding the death claim under the life certificates, but refused to confirm that portion of the report with relation to the claims of Royce and Spooner, and held that Royce and Spooner were entitled to “an equitable lien upon the reserve fund, for there was a promise and agreement that the fund might be resorted to in certain contingencies. In this case that contingency arose. The policy provision of the constitution that its officers should transfer to the death fund from the reserve fund sufficient to meet such claim was disregarded by the officers of that association. It was their duty to make such transfer. They have neglected to do so. Under the provisions of the contract and in equity the officers of that association should have transferred sufficient moneys from the reserve fund to meet this death claim, and the fact that the transfer was not made during the life of this association gives to the beneficiary an equitable lien upon the reserve fund now on hand to pay the death claims." And the court ordered these claims paid in full.
    The reserve fund that passed into the hands of the receiver exceeded $175,000; moré than sufficient to pay all the death claims that had matured before the commencement of this action. From the order of the special term, Royce and Spooner, respectively, appealed. One of the death claimants under the life certificates (John P. Riley) also appealed. The receiver was directed to appeal from the said order by the court at special term.
    John Cunneen, for receiver; William E. Prentice and George Barker, for claimants Royce and Spooner; Hamilton Ward, Jr., for John P. Riley and others.
   LEWIS, J.

—We concur with the special term that at the commencement of this action there should be regarded as in the death fund as taken from the reserve fund the amount of the maximum death assessment, being $10,000 ; but we do not concur with the conclusion that the claimants Royce and Sponner should be paid in full from the said fund, to the exclusion of other death claimants, whether of the life reserve or the life class. When the $10,-000 is taken from the reserve fund, and becomes part of the death fund, it ceases to have any of the qualities or attributes of a reserve fund, and becomes a common fund for the payment of death claims, and under the constitution and the certificates issued by the association all the members of the association are entitled to share equally in the death fund, whether holders of life certificates or life reserve certificates. The corporation was dissolved by proceedings taken in this 'action, and the effect of that dissolution reached back to the commencement of the action, so that the functions of the corporation ceased at that time; the $10,000 should be distributed pro rata upon all the proved and accrued death claims existing at that time But one transfer of a maximum claim from the reserve fund to the death can be made at a time, and when no. transfer has in fact been made before the commencement of the action, only one is made by construction, upon the equity doctrine that what should be done has been done. The operation cannot be repeated after the action is commenced, to meet the balance of the death claims then unpaid, or such as might arise after that time. The court, in finding up a corporation and distributing its property, does so upon the basis and consideration that exist when the action is commenced8 and the rights of all the parties interested are adjusted as of that date. The holders of life reserve certificates, and the representatives of such holders as had died, have an equitable lien upon all the reserve funds of the association in the proportion which the amounts contributed by the holders thereof respectively bear to the amount of such fund left in the hands of the receiver for distribution. This statement applies to the balance due upon the death claims arising out of the reserve certificates after deducting the amount received by them respectively on the distribution of the said $10,-000, as well as those life reserve claims upon which nothing has been paid. Those holding life certificates only, or death claims arising from life certificates, do not share in the reserve fund aside from the said $10,000, and this statement applies to the balance-due on such death claims as have received a pro rata distribution of the said $10,000.

■The order of the .special term should be modified to conform to the foregoing views, and, as so modified, affirmed. Costs and disbursements of the appeal should be. allowed to each of the parties represented by counsel, as heretofore stated, but no more than three bills of costs and disbursements in all, which should be paid out of the funds of the association in the hands of the receiver.

All concur.


text:
    The People ex rel. Groton Bridge Manufacturing Company, App’lt, v. Town Board of Town of Campbell, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Towns—Bmdges.
    The consent of the town board is a necessary prerequisite to the right of the commissioners of highways to construct a bridge, and the duties of such board, so far as the construction of the bridge is concerned, end when such consent is given.
    2. Same.
    The work of constructing the bridge then devolves upon the highway-commissioner.
    3. Same.
    The town board, after consenting that the commissioner of highways should cause a certain bridge to be built, cannot afterwards refuse to pay therefor on the ground that the bridge was unnecessary, or that the contract was not awarded to the lowest bidder.
    4. Same.
    When the town board refuses to audit the claim for building such bridge at its full amount, and assumes conditionally to audit the claim for a less amount than was the relator’s just due, the court has the power to amend or modify the determination of the town board, and like power is possessed by the court when the determination is against the preponderance of proof to such an extent, that the verdict of a jury would be set aside as against the weight of evidence.
    Certiorari to review an action of the town board of the town of Campbell, Steuben county, New York, in refusing to audit and allow to the full amount a bill and claim of relator for the construction of a bridge, pursuant to a contract with the highway-commissioner of said town.

      S. D. Halliday, for relator ; Frank H. Robinson, for resp’ts.
   LEWIS, J.

—The town board of the town of Campbell, at a special meeting thereof, held on the 10th day of November, 1894, passed the following resolution ;

“ County of Steuben, Town of Campbell—ss.: Whereas, the highway bridge, known as the ‘ Cohocton Eiver Bridge,’ in the village of Campbell, has become damaged and unsafe for travel, and there not being sufficient moneys in the hands of commissioner of highways to rebuild the same: Therefore, be it resolved, that we do hereby consent that the commissioner of highways of the town of Campbell cause said bridge to be immediately rebuilt ; and we do hereby empower the highway commissioner to employ an engineer to receive proposals from responsible contractors, for the superstructure and substructure of said bridge, and to let the same to the lowest bidder, at a cost not to exceed $8,000, for the completed bridge and approaches. Said bridge to be built of iron or steel.”

The resolution was signed by the members of the town board.

John King, the commissioner of highways of the town thereafter entered into a written contract with the relator to construct the bridge, according to-plans and specifications annexed to and forming part of the contract, for the price of $5,400, to be paid upon the completion and acceptance of the bridge; the payment to be made in certificates issued by the town board of said town, pursuant to sections 10 and 11 of chapter 568 of the Laws of 1890, known as the “ Highway Law.” The relator constructed the bridge in accordance with the terms of the contract. The bridge was duly accepted by the highway'commissioner, and thereafter, at a special meeting of the board, held in the month of J une, 1895, the relator presented to said board a bill for the price mentioned for constructing the bridge. The bill was properly verified and certified, as required by section 12 of said highway law. The board refused to audit the bill for the full amount, but did conditionally audit it at the sum of $4,475; the condition being that the relator should accept that amount in full payment for the bridge.

Upon the petition of the relator, a writ of certiorari was issued, to the board, commanding them ' to certify and return to the su preme court all the proceedings had concerning the audit of said bill and claim of the relator. By their return to the writ, the respondents stated, as reasons for not auditing and allowing the claim, that there was really no need for the bridge; that the old one had not become unsafe or impassable ; and, as an additional reason, that the highway commissioner did not let the contract for constructing the bridge to the lowést bidder; that another responsible bridge company put in a bid for the construction of a bridge like the ono constructed by the relator for the sum of $4,— 475, "being for the sum of $925 less'than the .contract price for which the relator agreed to construct it; and that the price agreed to be paid the relator was excessive, and more than the bridge was worth; and denied that the town of Campbell was justly indebted to the relator in the sum of f>5,400, or any sum whatever. It was further stated in said return that the respondents, so far as they had the right and power to act, audited the relator’s claim at $4,— 475, on condition that it would accept that sum in full payment for the bridge.

Section 10 of the highway law reads as follows:

“ Extraordinary Eepairs of Highways or Bridges. If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise, the commissioner of highways of the town in which such highway or bridge may be situated, may, with the consent of the board, cause the same to be immediately repaired or re-built, although the expenditure of money required may exceed the sum raised or authorized to be raised for such purpose, as hereinbefore provided; and the commissioners for highways shall present the proper vouchers for the expense thereof to the town board at their next annual meeting, and the same shall be audited by them and collected in the same manner as amount voted at town meetings.”

Section 11 provides for the convening of the town board in special sessions by the supervisor, upon the request of the commissioners of highways; and the bills and expenses incurred in the erection or repairs of bridges may then be presented to and audited by the town board.

.The consent of the board was a necessary prerequisite to the right of the commissioners to construct the bridge. The duties of the board, so far as the construction of the bridge was concerned, ended when such consent was given. The work of constructing the bridge then devolved upon the highway commissioner, the official who had been selected by the electors of the town to take charge of such mattters. The resolution of the board was unquestionably sufficient to authorize the commissioner to construct a new bridge. People ex rel. Slater v. Smith, 83 Hun, 432 ; 64 St. Rep. 419. It was too late to raise the question as to the necessity of building the bridge after such consent had been given, and the contract made, and the bridge constructed. The town board assumed, in their resolution, "to direct the highway commissioner as to the course he should pursue in constructing the bridge. They incorporated in their resolution a direction that the commissioner should employ an engineer to receiye proposals from responsible contractors for the superstructure and substructure, and to let the same to the lowest bidder. All this whs surplusage, for the manner of constructing the bridge was entirely within the jurisdiction of the highway commissioner. Whether he would build it by contract or employ his own men, or whether he would invite competitive bids, and whether he would let the contract to the lowest or highest bidder, were questions for his decision. It might well be that the best interests of the town would be subserved by not letting the contract to the lowest bidder.. The conduct of the commissioner in letting the contract to the relator is impugned by-the respondents. They charge him with having acted corruptly and collusively with the relator in accepting the highest bid, when there was a lower one, from an equally responsible concern. We fail to find in the record any evidence to sustain these allegations.

We fail to find any competent proof that the contract made with the relator was not a proper and judicious one. The relator having fully performed its contract, there does not seem to have been any good reason for the refusal of the board to audit the claim for its full amount; and when-the board refused so to do, and assumed conditionally to audit the claim for a less amount than was the relator’s just due, a rule of law was violated to the prejudice of the relator. In such a case, the court has the power to amend or modify the determination of the body reviewed, and like power is possessed by the court when the determination is against the preponderance of proof to such an extent that the verdict of a jury would be set aside as against the weight of evidence. Section 2140 of the Code of Civil Procedure. This, we think, is such a case.

The determination of the board should be so modified as to allow the claim of the relator at the sum of $5,400, with interest thereon from the 5th day of June, 1895, with $50 costs and dis-Id ii rs 0 men ts«

• WARD and ADAMS, JJ., concur; BRADLEY, not voting.


text:
    Ellen S. Luce, Resp’t, v. Arthur S. Gray et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)
    Gift—Inter vivos.
    A provision in a contract for the conveyance of land that the grantee should pay to testator's daughter a certain sum by the execution by the grantee to the grantor, of a mortgage on the land securing such sum, was held to be a present gift to such daughter, and not a gift of a testamentary character.
    Appeal from a judgment in favor of plaintiff.
    James C. Leggett, for app’lt ; C. D. Davie, for resp’t,
   LEWIS, J.

—This action was brought to foreclose a mortgage made by the defendant Sylvester Gray to his parents, Zebina and Zoar Gray, deceased, upon certain premises in Allegany county, and to have vacated and canceled of record a discharge of said mortgage, which had been executed by the mortgagee, Zebina Gray, and recorded in the clerk’s office of ‘said county. The action was tried before a referee. It was found by the referee, upon evidence sustaining the findings, that Zahina Gruy was, in the year 1855, the owner of a farm situated in the county of Allegany, containing 125 acres, upon which he had resided with his family for many years. He had three children, the defendant Sylvester Gray, Lucy J. Gray (now Lucy J. Swift), and the plaintiff, Ellen S. Gray (now Ellen S. Luce). The son and the daughter Lucy were then of full age, and were married. The plaintiff was a minor, of about the age of 14 years. Sylvester and his family, at the time of the conveyance, were living in a house upon the farm with his parents. He had a desire to move to the West, and so informed his parents. They were anxious that he should remain at home. Sylvester made it a condition of his remaining that he should have a deed of the farm, and it was arranged between the parents and Sylvester that the parents should convey the farm to him upon condition that he should remain at home, and that they should be permitted to live upon the farm, and Sylvester to pay them §120 a year so long as they both lived, and, in case of the death of one of them, "he should thereafter pay to the survivor $98 a year, and that he should pay to the daughters the sum of §900 a year. The agreement, so far as it appears from the case, does not seem to have been committed to writing. The farm was accordingly deeded to Sylvester, and he remained in possession; and in the year 1861 he executed and delivered to his father the mortgage in question upon the farm deeded as aforesaid, and,' in addition thereto, a lot owned by Sylvester,.containing some twenty-five acres of land, was included. The deed to Sylvester was subject to a mortgage of §500 upon the farm.

The mortgage given by Sylvester to his father contained the following condition:

“This grant is intended'as a security(for the payment of $120 annually, during the natural lifetime of the said Zebina and Zoar Gray; and in case of the decease of either the said Zebina or Zoar Gray, thereafter such decease, the said Sylvester Gray is to pay $98 annually; and, at the decease of the said Zebina and Zoar, the said Sylvester Gray is to pay Ellen S. Gray, the sum of $700."

Sylvester, prior to the execution of the mortgage, by an arrangement with his sister Lucy, had compromised and satisfied her claim of $900, and $200 of the $900 had been paid to the plaintiff, leaving unpaid to her the sum of §700, the amount mentioned in the mortgage. The mortgage was duly recorded in the clerk’s office, and was returned to Zebina Gray, who retained possession thereof until the 23d day of August, 1871. It was understood and agreed between the parties to the mortgage that the same was in full settlement and payment for the purchase price of the land conveyed to Sylvester. The plaintiff and her sister, Lucy, were-aware, at the time the contract was made, of the provision for their benefit, and assented thereto. On the 17th day of December, 1870, Sylvester Gray incumbered ninety acres of the premises mentioned by a mortgage to one Spencer Lyon, of $1,700, which was duly recorded. On the 23d day of August, 1871, Sylvester Gray and his wife, by a warranty deed, containing full covenants, conveyed the home farm covered by the first-mentioned mortgage to his father, Zebina Gray. The consideration expressed therein was $2,700. The deed was duly recorded, and Zebina Gray, by a paper dated the same day and acknowledged on the 15th day of September thereafter, certified that the mortgage first described was redeemed, paid off, and discharged, which paper was recorded in the proper clerk’s office. Ellen at this time Was of full, age, and was married. The discharge of the mortgage Was without her knowledge or consent. Ho part of the $700 has ever been paid. Zebina Gray, and Zoar, his wife, thereafter, and on the 20th day of December, 1872, executed and delivered to Maria 0. Bull a mortgage upon said premises, for the consideration expressed of $1,200, which was duly recorded. The defend-' ants appealing derived title to their portions of the premises under the foreclosure and sale of the two mortgages mentioned, as given by Sylvester to Lyon, and by Zebina Grayv to Bull. Zoar Gray died in the year 1884, and Zebina in the year 1888. There was an absence of any direct evidence showing the actual value of the farm at the time it was conveyed to Sylvester.

The referee found, as a conclusion of law from the foregoing facts, that the plaintiff had a vested interest in the mortgage to the amount of the sum mentioned, $700, and that her father had no power or authority to discharge the lien of said mortgage so far as plaintiff’s interests were concerned; and he directed judgment for the sale of the premises, for the satisfaction of the plaintiff’s claim, with costs of the action, from which judgment defendants Arthur S. Gray and Charles Laferty, grantees of the premises, appealed.

The question is presented, was the transaction described designed and intended by the parties thereto to vest in the plaintiff a present right,to the $700, or was the transaction in its nature testamentary, and therefore revocable at the pleasure of the mortgagee ? An examination of the case has led our minds to the same conclusion as that reached by the referee. The parents owned the farm. It- was probably of the value of from $3,000 to $4,000, incumbered, as stated, to the amount of $500. Their son. upon whom they relied to work and manage the farm, presented the alternative to them of giving him title to the farm, or his leaving them and moving to the West. So far as appears from the case, the farm, with the tools and stock thereon, constituted the entire property of the parents. They had two daughters. One had arrived at age, was married, and was living in a home of her own. The other was but fourteen years of age. She was living with her parents, and was dependent upon them for her support and education. The parents very naturally wished and intended, in making a disposition of their property, that the daughters should have an equitable portion thereof. At the time , of the giving of the mortgage in question, Lucy bad already received her portion, and provision was made in the mortgage for the payment to the plaintiff of the balance of the $900 which had been set apart for her. It is altogether improbable that the father, under the circumstances, had in mind to make the payment of the $700 to the plaintiff dependent upon any other condition than the one mentioned in the mortgage — the death of the father and mother. The father did, in fact, subsequently satisfy the mortgage of record, and that is urged as evidenee that he originally intended the provision for the plaintiff to be of a testamentary character. The circumstance does not impress us as being very significant. He was a farmer, and probably unacquainted with the rules of law governing such a transaction. He being the mortgagee, and having possession of the mortgage, he very naturally concluded that he had the power to satisfy it of record, without having given any thought or attention to the question of his power so to do. Living, as he did. in the same house with Sylvester, he presumably was aware, at the time the mortgage was executed, that Lucy’s claim had been satisfied. It is quite improbable that he, at that time, had in mind to retain to himself the right and power to thereafter cut off the provision he had secured for the plaintiff. The situation of. the plaintiff had somewhat changed at the time the mortgage was discharged of record. She was then an adult. She had married, had left her former home, and her father probably thought her husband could care for her. The son, Sylvester, was a party to all these transactions. He was living in the same house with his father when the mortgage was executed, and presumably was entirely familiar with his father’s wishes and intentions at that time. His subsequent conduct shows that he must have understood that it was a gift in prassenti, for it appears from the evidence, and is so found by the referee, that after the execution of the mortgage in question, and before the same was satisfied of record, he offered to pay the $700 to the plaintiff. The plaintiff and her husband declined to receive the money, for the reason, as stated by them, that they had no means of investing it, and that they considered it perfectly safe, and preferred to have it remain as it was. It is very improbable that this offer would have been made by Sylvester had he not understood that the provision made for the plaintiff in the mortgage was intended as a present gift to her, and not dependent upon any action which might thereafter be taken by her father.

Very little assistance is afforded us in the decision of the questions here presented by other adjudications, the decision of each case depending so largely upon its own facts. • The respondent’s counsel relies upon Townsend v. Rackman, 143 N. Y. 516; 62 St. Rep. 851, as an authority for his contention. The trial court in that case found that the mortgages involved in that action were executed upon the understanding and belief that the whole arrangement was testamentary in its character, and in the nature of a will. Here, the exact reverse of that is found. "' The plaintiff being, at the time of the? giving of the mortgage, an infant, her father was required to support and provide for her. This obligation furnished a sufficient consideration for "the provision contained in the mortgage for her benefit.

We fail to find any reason for disturbing the judgment appealed from. It should be affirmed, but without costs of this appeal.

All concur.


author: BRADLEY, J.

text:
    The People ex rel. Louis Johnson, Resp’t, v. Charles A. Webster, as Superintendent, etc., App’lt.

      (Supreme Court, General Term,, Fifth Department,

      Filed December 28, 1895.)

    1. Criminal law—Sentence.
    The term of imprisonment, upon a conviction in a court of special sessions, must he definitely fixed and declared by the judgment.
    S. Same—Indeeintb sentence.
    A sentence of imprisonment for a period not exceeding 180 days does not definitely fix and declare.tlie term of imprisonment and is ineffectual te continue a prisoner in custody any length of time.
    8. Same—Habeas corpus.
    In case of such error, it is not within the legitimate purpose of a writ of habeas corpus to relieve the relator from his imprisonment.
    4. Same—Special sessions—Resentence.
    The court of special sessions ceases to exist for the purposes of a case when the judgment is pronounced and the certificate of conviction is made, and it cannot afterwards he reorganized for the purpose of resentencing the defendant in order to correct a defect in the original sentence. In such case, the relator is entitled to his discharge from custody.
    Appeal from’ an order made on the return of a writ of habeas corpus discharging relator from custody.
    Howard H. Widener, for app’lt; W. H. Sullivan, for resp’t.
   BRADLEY, J.

—The relator was imprisoned in the Monroe County Penitentiary by virtue of a certificate of conviction made by a justice of the peace of that county on the charge of assault in third degree upon one William Pffarr, by which certificate it appears that it was adjudged that he be imprisoned in the Monroe County Pe’nitentary for a period not exceeding 180 days. To the return of the defendant to the writ of habeas corpus that the relator was in custody by virtue of the .warrant of commitment or certificate before mentioned, the relator answered and demurred to the effect that the return furnished no support to his custody by the defendant. It must be assumed that the relator was properly before the court of special sessions, and was tried and convicted for the offense charged. Therupon it was within the power of that court to render judgment imposing a fine not exceeding $50 or mprisonment for a term not exceeding six months, or both such fine and imprisonment. Code Cr. Proc. § 717. The term of imprisonment, however, must be definitely fixed and declared by the judgment. It cannot lawfully be left to the management of the jail or penitentiary to determine the length of time which, within a certain period, the imprisonment shall continue. In that respect the judgment of conviction and the certificate thereof, constituting the warrant of commitment, were ineffectual to continue the relator in custody for any length of time. But it is said ■ on the part of the defendant in the proceeding that this, at most, was merely error, available only on review, and therefore it is not within the legitimate purpose of a habeas corpus to relieve the relator from his imprison rnent. While it is true that upon the return of such a writ the inquiry cannot be made into the legality or justice of the mandate or judgment of a competent tribunal of civil or criminal jurisdiction when the time for which the prisoner may be legally detained has not expired (Code Civ. Proc. §§ 2032, 2034), the proceeding is founded not upon any want of jurisdiction to render a judgment of conviction against.the relator, or upon any error of the court in the trial leading to the judgment, but it rests upon the alleged fact that there was no power in the court to render the judgment which pronounced, and that the certificate of conviction, by virtue of which he was imprisoned, gave no support for his detention.

The question to be considered here is one of power of the court of special sessions, and that is not necessarily included within the meaning of the words “legality” and “justice,” as used in the statute. Although it was within the power of the court to render a judgment, unless the court had power to render the judgment pronounced, it was not the judgment of a competent tribunal, within the meaning of that term, and was void. People v. Liscomb, 60 N. Y. 559. It is urged by the leaaned counsel for the respondent' that the sentence of the court was for imprisonment for 180 days. YVhile such effect might be given to the excution of the judgment, it is the nature of it, not the consequences of its execution which may follow, that determines the character of the judgment. The term of imprisonment it not so pronounced that its termination before the expiration of the 180 days would violate the direction expressed in the sentence of the court. How, then, can it be said to have' been definite or certain in that respect ? And, if not so, how can the judgment be treated as one which it was in the power of the court to render ? It would seem, at the most, that the sentence was one imprisonment for no specific time, and therefore the relator was entitled to his discharge from custody in the penitentiary at any moment after he had been confined there pursuant to the judgment, for the reason that the time for which he might legally have been detained had expired. Code Civ. Proc. § 2032. There is no opportunity to remand the- relator for further action óf the court and for resentence, because the court of. special sessions, by which he was tried and convicted, ceased to exist for the purposes of that case when the judgment was pronounced and the certificate of conviction was made; and it cannot be reorganized to take further proceedings in the matter of that prosecution of the relator. People ex rel. Cook v. Smith, 28 St. Rep. 306; People ex rel. Lotz v. Norton, 76 Hun, 7; 58 St. Rep. 736. It is otherwise when a judgment of conviction of a court record is void by reason of a want of power to impose the punishment pronounced by it. Then the prisoner may be remanded for resentence, and the record may be corrected accordingly. People v. Kelly, 32 Hun, 536; 97 N. Y. 212.

These views lead to the conclusion that the.order appealed from should be affirmed.

All concur.


author: WARD, J.

text:
    Thomas P. Van Allen, Rәsp’t, v. Alexander F. Gordon, as Executor, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Appeal—Pleading—Amendment.
    No appeal will lie from a condition merely of allowing service of an amended complaint, stating the reason therefor.
    2. Pleading—Amendment—Disbursements.
    An order, allowing an amendment on payment of ‘ ‘ disbursements ” of the other party since a former trial, means taxable disbursements.
    8. Same—Condition.
    It is not an abuse of discretion to impose the payment of a specified amount of costs as a condition to the amendment of a pleading, where such amount is less than the costs already accrued.
    Appeal from a portion of an order,'requiring the defendant to pay a certain amount of costs and disbursements to plaintiff, as a condition to the amendment of his answer.
    James S. Havens, for app’lt ; Fred H. Baker, for resp’t.
   WARD, J.

—This action was commenced in the municipal court of the ci.ty of Rochester in February, 1893, and the complaint alleged that the plaintiff was a practicing physician and surgeon, regularly authorized to practice as such under the laws of this state, and that he had rendered professional services as such and furnished medicine to the then defendant, John H. Gordon, for which he claimed judgment for §625. The defendant answered, admitting that the plaintiff was such physician and surgeon, but denied the rendition of the services rendered *as claimed, and for a further answer alleged that the services of the plaintiff were unskillfully and negligently performed, and demanded damages therefor. Defendant further served an amended and supplemental answer, which alleged that the plaintiff had, since the commencement of the action, disposed of the cause of action to his father, Thomas P. Van Allen. The plaintiff recovered judgment in the municipal court for $350 and costs, from which judgment the defendant appealed to the county court of Monroe county for a new trial, where the action was referred to a referee to hear, try, and determine. Upon the trial before the referee, the referee reported in plaintiff’s favor. The judgment was entered thereon for §350 and costs. From that judgment defendant appealed to the general term of this court, where the judgment was reversed, and a new trial ordered before another, referee. The trial was commenced before such referee, and the plaintiff was sworn, and he gave such evidence as induced the defendant to ask that the trial be suspended that he might move to amend the answer in important particulars. In the meantime John H. Gordon, the original defendant, had died, and the present defendant, his executor, was substituted as defendant. Upon the motion to amend, the county court of Monroe county made an order that the defendant’s proposed amended answer, that accompanied the motion papers, should stand, provided that the defendant, before the adjourn day of the trial before the referee, should pay the amount of the plaintiff’s disbursements incurred in the action since the trial thereof in the municipal court of the city of Rochester, and $50 costs in addition thereto; and it was further ordered that if the defendant admitted the regularity of the plaintiff’s license to practice medicine and surgery in this state, and of his registry of such license, then that the proposed answer should stand as the defendant’s answer in- this case, on the payment of $10 costs of the motion; and it was further ordered that no amendment should be allowed to the answer unless the defendant admitted the transfer of the claim in suit from the plaintiff to the said Thomas P. Yan Allen. The amended answer contained the denial that the plaintiff was a competent physician and regularly authorized to practice his profession under the laws of this state. It also, as a second defense, set up as a counterclaim that the plaintiff had so improperly, unskillfully, and negligently performed his services, and treated the said John H. Gordon, that he was guilty of malpractice, and that John II. Gordon had suffered damage in excess of the value of any services that had been rendered, and which were recouped.

The appeal from the order permitting the service of this answer is an appeal only from that portion of the order which imposed upon the defendant, as a condition for the granting of the motion to amend his answer, the payment by the defendant of the plaintiff’s disbursements incurred since the trial in the municipal court, and the $50 costs in addition thereto. The attitude of the appellant, .therefore, is that he proposes to avail himself of the benefits of that order, to wit, the right to serve his amended answer, and inject a new and important defense into the action, and escape the burden imposed upon him as a condition for the privilege granted. There is difficulty upon the threshold in disposing of this appeal upon the merits, for only a portion of the order is before us ; and we are unable to see how we can dispose of the whole question intelligently with only a fragment of the order here. This difficulty arose in Re Rockwell’s Will, 31 St. Rep. 22, where a motion by the contestant of a will for a struck jury was denied, provided proponent stipulated that jurors might sit at the trial though they had read newspaper accounts of the controversy, and had formed opinions thereon, or conversed on the subject-matter of the litigation upon the merits; but in case the stipulation was not given, then the motion was granted. The general term of this department held that an appeal by the proponent from so much of the order as imposed the conditions, in case the application should be denied, and from granting the application in case the stipulation was not given, brought up nothing which thé general term could intelligently review. In Havemeyer v. Havemeyer, 44 Supr. Ct. 170, there was an appeal, like the case before us, from so much of an order as imposed the condition of the payment of the costs of the trial already had, and of an appeal to the general term, as a condition for leave to serve an amended answer; and the court held that no appeal will lie from a condition merely of allowing service of an amended answer, stating the reasson therefor. To the same effect is Tribune Ass’n v. Smith, 40 Supr. Ct. 81.

But, assuming that the whole order is before us, we do not think the discretion of the county court was abused in this instance. By section 723 of the Code, the court may, “ on such terms as it deems just,” permit an amendment of a pleading “by inserting an allegation material to the case.” This grant of power to the court is a liberal one, and intended to vest a wide discretion in the court that will adapt itself to varying circumstances and conditions of the different cases in which this discretion is invoked; and it has generally been held that this discretion could not be reviewed by the appellate court. The appellate court has, however, entertained appeals in such cases, where the discretion of the court below has been carried to an unreasonable extent, amounting to oppression. The appellant complains that the order should provide that the .taxable disbursements should be paid as a condition. We think that is the fair import of the condition. It means the taxable disbursements, and nothing more.

The appellant further complains that the order should not have fixed a specific amount of costs to be paid, but should have provided that the taxable costs be paid, simply; if anything, and claims that an examination of the case fails to disclose an instance where a specific amount of costs have been imposed as a condition for the relief granted. However this may be, the court exercised a proper discretion in the case at bar, having before it the fact that in the progress of the litigation in the different courts through which the case has passed a large amount of costs had accrued, which would ultimately go to the successful party in the litigation, and would exceed the amount of fifty dollars imposed in this instance, and which was not unreasonable under the circumstances of this case.

The order should be so modified as to apply the fifty dollars on the plaintiff’s costs in the action, in the event he recover therein, and, as so modified, order affirmed,, without costs of this appeal to either party,,

All concur,,


author: PER CURIAM.

text:
    The People, Pl’ff, v. Merchants’ Bank of Binghamton, Def’t. In the Matter of Petition of E. & G. Friend & Company.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Banks—Collecting agents.
    The relation between the former owner of a note and the collecting bank is that of bailor and bailee or trustee and cestui que trust, and the fund received by the receiver of such bank is the property of the owner of the note, or is so far impressed with a trust in his favor as to give him an equitable title thereto; and the owner of the note is entitled to collect it from the receiver of the bank to the extent of the funds he received from the bank that were in its possession when it failed.

      Appeal from an order, directing payment of petitioner’s claim in full.
    George F. Lyon, for app’lt ; Mandelbaum Bros., for resp'ts.
   PER CURIAM.

—The petitioners, E. & G. Friend & Co., are merchants in the city of New York. On December 29,1894, they sent to the Merchants’ Bank of Binghamton three promissory notes, payable at that bank, made by Reynolds, Rogers & Lay, who resided in Binghamton, and were depositors in the Merchants’ Bank. Accompanying the notes was a letter to the cashier of the bank, which was as follows: “We beg to inclose for collection, Reynolds, Rogers & Lay, $1,073.25; do. Am. Exch., $1,000; do. ‘Paid/ $1,364.43, for proceeds of which please send New York exchange, and oblige.” Each of these notes was indorsed upon.the back: “Pay to the order of Merchants’ Bk. for collection account of E. & G. Friend & Co.” Friend & Co. had no account with the Merchants’ Bank. The first of these notes was paid at maturity, and the bank remitted the proceeds less their charges. The second matured January 17,1895. On that day the account of Reynolds, Rogers & Lay was not good for the amount of the notes, but they deposited $634.40 to make their account sufficient to meet it. The bank thereupon stamped and canceled the note as paid, returned it to Reynolds, Rogers & Lay, and charged the same to their account. It then sent to Fiiend & Co. its draft upon the American Exchange Bank of New York City for the amount collected, less one dollar, collection fees. Before it was presented, the Merchants’ Bank went into the hands of a receiver, and the American Exchange Bank declined to honor the draft. The amount deposited and standing to the credit of Reynolds, Rogers & Lay in the Merchants’ Bank has neve» been drawn out, and there has been in'that bank at all times since such deposit was made more than riioney enough to pay the petitioners’ claim. The third note had not matured when the receiver was appointed, and it was returned to Friend & Co. On April 3d a motion was made for an order directing the receiver to pay to the petitioners the sum of $999, that being the amount of the note less the commission for collecting it. This motion was based upon the verified petition of Friend & Co., and an affidavit of Frank B. Reynolds. Upon the hearing, the affidavit of George W. Ostrander was read in opposition to such motion; and, upon the hearing, the court granted the order appealed from.

Practically the same question as is presented upon this appeal was before us in the case of Arnot v. Bingham, 55 Hun, 553 ; 29 St. Rep. 878. In that case all the essential facts were substantially like those in the case at bar. We there held that the owners of the note were entitled to collect it from the receiver of the-bank to the extent of the funds he received from the bank that were in its possession when it failed. We also held that the relation between the former owner of the note and the bank was that of bailor and bailee, or trustee and cestui que trust, and that the fund' received bv the receiver was the property of the owners of the note, or so far impressed- with a trust in their favor as to give them an equitable title thereto. If that ease was correctly decided, it follows that the order in this casé should be affirmed. While it must be admitted in that case we were not free from doubt, and that the general term of the Fifth department has held an opposite doctrine, still, upon a re-examination of the question, we are disposed to adhere to our former decision, and affirm the order appealed from.

Order affirmed, with $10 costs and disbursements.


text:
    In the Matter of an Application by the Depew and Southwestern Railroad Company.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Bailroad—Commissioners—Certificate.
    There is no vested legal right of any one of two or more companies making applications, concurrently heard and considered by the .board of railroad commissioners, to have the benefit of a certificate upon its determination that public convenience and necessity for the proposed railroad exist.
    2. Same—Propriety.
    In reaching the conclusion essential to the issuing of a certificate, the board acts judicially, and when, after refusal to grant it, the matter is brought to the general term, the action of the court is in the nature of a review of the determination of the board.
    3. Same—Burdbn.
    In such case, the burden is with the moving company to make it affirmatively appear that the hoard erred in its conclusion and in its refusal of the certificate, upon the facts as presented to it.
    4. Same—Judgment.
    A judgment of the board is entitled to support so far as it is fairly justified by the facts, the same as is that of any othpr tribunal subjected to review.
    5. Same—Beview.
    The only power of the general term to reconsider the action of the hoard is that given by the Statute, and it can be sought and exercised only when the certificate is refused.
    6. Same—Simultaneous applications.
    The statute does not contemplate that one company, applying to the hoard for a certificate, shall have priority over another company because it was first incorporated.
    Application for direction to the board of railroad commissioners to issue a certificate that public convenience and-necessity require the construction of the railroad as proposed in the articles of association of said company.
    Wilson S. Bissell, for motion ; Daniel H. McMillen, opposed.
   BRADLEY, J.

—The Depew & Southwestern Railroad Com- ° pany was duly incorporated, and the termini of its proposed line of railroad were Depew and Blasdell, in the county of Erie. The Terminal Railway of Buffalo was also duly incorporated, and the proposed termini were the same. ■ Bach company made application to the board of railroad commissioners for a certificate under the statute which provides that “no railroad corporation hereafter formed under the laws of this state shall exercise the powers conferred by law upon such corporations or begin the construction of its road until the board of railroad commissioners shall certify,” among other things, “that the public convenience and necessity require the construction of said railroad as proposed in said articles of association.” Laws 1892, c. 676, § 59. The two applications were heard together, and the board of railroad commissioners granted the application of the Terminal Railway, and issued a certificate to the effect that, the public convenience and necessity required the construction of the railroad proposed by the articles of association of that company. The board denied the application of thé Depew & Southwestern Railroad Company. The case was brought here pursuant to the statute which provides t{iat, “after a refusal to grant such certificate, the board shall certify a copy of all maps and papers on file in its office and of findings of the board when so requested by the directors,” who “may thereupon present the same to the gereral term of the supreme court of the department within which said road is proposed in whole or in part to be constructed, and said general term shall have power,-in its discretion, to order said board for reasons stated, to issue said certificate, and it shall be issued accordingly.” Laws 1892, c. 676, § 59.

The convenience and necessity of a railroad from Depew to Blasdell are not questioned, and, for the purpose of facilitating transportation of freight both east and west between Hew York and Chicago, its importance is apparent. It will shorten the distance about six miles, and the time about that number of hours, and will obviate the necessity and inconvenience of taking freight cars through the city of Buffalo to interchange with connecting roads. There are five railroads passing through Blasdell, to be brought into more immediate or direct connection with four at Depew by the proposed line between those two places. Both companies, in their organization, complied in all respects with the statute, and did all that was essential preliminarily to the applications to the board, proceeded in good faith, and had the purpose and ability to construct the road proposed by their articles of association. But the public convenience and necessity required the construction of only one line of railroad having those termini. The question, as treated by the board, was one of preference between them. In this it is insisted on the part of the Depew & Southwestern Railroad Company that the board misapprehended its powers given by the statute, and, in violation of it issued the certificate in behalf of the Terminal Company; that it was within the province of the board to determine whether or not the public convenience and necessity required a railroad having the proposed termini; and that when that was determined in the affirmative the Depew & Southwestern Company was, by reason of the priority of its corporate creation, entitled to the benefit of the certificate, which the board was thereupon required to issue. The directors of both companies proceeded concurrently in process of organization. While the articles of association of the Terminal Company were executed two days prior to those of the Depew & Southwestern Company, the latter was, by the filing of them, incorporated two days earlier than was the other company. The application of each of the companies for hearing was filed with the board the same day, the publication of the articles of association of both companies occupied the same time, the notices for hearing were given at and for the same time, and the applications were heard together. It may be that the situation presented in this ease was not contemplated by the statute. And, in case of competing companies in applications made to the board, there may be some reason, in the matter of fairness and propriety, for granting the certificate to the one first incorporated, other things being equal as between- them. But it is not seen that there is any vested legal right of any one of two or more companies making applications, concurrently a heard and considered by the board, to have the benefit of a certificate upon its determination that public convenience and necessity for the proposed railroad exist.

Without the aid of some statute to that effect, the priority in such case of corporate existence does not necessarily furnish priority of legal right, as against a competing application to the board. There is no statute in support of such a proposition applicable to that stage of the corporate action of a railroad company. While the creation of a railroad corporation is a right to be exercised in the manner provided by the statute, the right to exercise the power of proceeding to the constuction of its proposed railroad is subject to and dependent upon the supervisory consideration of the board, and its certificate, preliminarily made, that public convenience and necessity require the construction of said railroad as proposed in said articles of association,” This has reference to the articles of association of some particular company to be mentioned in the certificate. It would not answer the purpose of the statute for the board to certify merely that public convenience and necessity required the construction of a railroad having the termini mentioned. It is to certify that such convenience and necessity require the construction of the road as proposed in said articles, and the certificate is apparently available only to the company having the articles thus mentioned in the certificate. And, although the termini described in the articles of both companies were the same, it may be assumed that, as represented by the maps and profiles, there were some distinguishing features in the route or line of the road as proposed by the companies. In reaching the conclusion essential to the issuing of a certificate, the board act judicially, and when, after refusal to grant, it, the matter is brought to the general term, the action of the court is in the nature of a review of the determination of the board; and the burden is' with the moving company to robe it affirmatively appear that the board erred in its conelusion and in its refusal of the certificate, upon the facts as presented to it. The reasons given for the. action of the board do not necessarily control the disposition to be made of the case on the review, unless the facts required a different conclusion on the hearing. It is not enough, to overcome the refusal there, that the facts merely permitted the issuing of a certificate, unless the determination of the board was contrary to the clear weight of the evidence.' Its judgment is entitled to support so far as it is fairly justified by the facts, the same as is that of any other tribunal subjected to review. People v. Ulster & D. R. Co., 58 Hun, 267; 34 St. Rep. 983; In re New Hamburgh & P. C. R. Co., 76 Hun, 76; 59 St. Rep. 150; In re Amsterdam, J. & G. R. Co., 86 Hun, 578; 67 St, Rep. 878. The only power of the general term to reconsider the action of the board is that given by the statute before referred to, and it can be sought and exercised only when the certificate is refused. In the present case it was'denied to the Depew & Southwestern Company, and that refusal is subject to-review by this court. The propriety of granting the certificate to-the Terminal Company cannot be the subject of consideration in this matter. The claim urged in behalf of the moving company, that it was notfwithin the powpr of the board to deny to it the certificate, and to grant one to the other company, presents a question which can only be considered and defermined elsewhere than on this statutory review.

The suggestion that in this matter the court may reverse the action of the board in granting the certificate, and directing it to-issue one to the Depew & Southwestern Company, or require the board to issue a certificate to the latter company, and place the other company in a subordinate relation to it in respect to the right to proceed in the construction of the proposed railroad, is not tenable. No such power is within the contemplation of that given by the statute from which the court derives all its power in a proceeding of this character. The issuing of the certificate in-behalf of the one company was not the refusal of a certificate in behalf of the other, although it furnished to the board a reason for the denial of one to the latter company. The relative merits of the two companies, on whatever grounds or for whatever reasons they may be claimed to exist, in favor of one and against the other company, as respects their applications to the board, are not here for consideration. It was in the power of the board to issue a certificate, and, having granted the certificate in behalf of the-Terminal Company, it refused a like certificate to the other company. With the certificate issued we have nothing to do, except so far as it bears upon the question whether public convenience and necessity require the construction of more than one railroad having the termini before mentioned. It cannot well be urged that such necessity exists, or .that the board was required to issue more than one certificate for that purpose. And, since this was done, the refusal to grant another certificate to the Depew & Southwestern Railroad Company requires no further-consideration. *

The application for direction to the board of railroad - commissioners should therefore be denied.

All concur.