author: Bockes, J.:

text:
    HENRY WHEELER, Respondent, v. GEORGE W. MILLER, Appellant.

      Manufacturing corporation — failu/re of subscribers to pay in the capital stock — what is sufficient to prove the defendant to be a stockholder— the judgment and, execution against the company cannot be attacked collaterally — the plaintiff must prove his claim against the company.

    In an action by a judgment creditor of a manufacturing corporation, to charge a stockholder thereof with the payment of the judgment because of a failure to pay in the amount due upon his stock, the fact that he was a stockholder is sufficently shown by proving that he was one of the trustees named in, and that he signed the certificate of incorporation; that he subscribed for fifty shares of the stock, and subsequently acted as secretary of the company, even though it is not shown that he in fact actually received his certificate of stock.
    In such an action the defendant cannot dispute the validity of the judgment recovered against the company, or of the execution issued against it thereon, for mere irregularities.
    In such an action proof that the judgment was recovered against the company is not sufficient; it is incumbent upon the plaintiff to prove, by competent and satisfactory evidence, the validity of his claim against the company.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      John Sherwood and C. E. Coddington, for the appellant.

      Olin A. Martm, for the respondent.
   Bockes, J.:

The defendant is charged in this action witn personal liability as stockholder of the Mallary Paper Bag Manufacturing Company, for an indebtedness alleged to have been incurred by that company to the plaintiffs’ assignors. The alleged indebtedness was for printing and binding books, pamphlets and papers for the company, at its request.

The corporation was organized under the act of 1848 (chap. 40), and its amendments, which law authorized the formation of corporations for manufacturing, mining, mechanical and chemical purposes. Its capital stock was fixed, by the certificate of incorporation, at $200,000, divided into shares of $100 each. The defendant was one of the trustees named in the certificate, signed the same, and, as the referee finds, he subscribed for fifty shares of the capital stock, but omitted to pay in such subscription. The referee further finds, generally, that the whole amount of the capital stock fixed and limited by the certificate of incorporation was never paid in.

The tenth section of the act referred to creates a personal liability against stockholders for the debts of the company, to the amount of their stock respectively, in case of an omission to pay in 'the whole stock fixed and limited by the certificate of incorporation. But by section 24, it is provided that personal liability shall not attach for this causo until the creditor shall have exhausted his remedy at law in whole or in part,, by judgment and execution against the company. Thus it is seen that judgment and return of execution unsatisfied against the company is made a prerequisite to a right of action by a creditor thereof, in order to charge a stockholder with personal liability under the provision of law above referred to (Lindlsey v. Simonds, 2 Abb., [N. S.], 69; Birmingham Nat. Bank v. Mosser, 14 Hun, 605), except, perhaps, in cases of impossibility to perform the condition. (Kincaid v. Dwinelle, 59 N. Y., 548, 551.) There was no impossibility existing in this case to the performance of this prerequisite, and the objection is taken that this was not shown on the trial before the referee. The finding of the referee, however, is full and complete in this regard, and the finding seems well supported by the evidence. The proof is that an action was commenced by the plaintiff’s assignors against the company in the usual way, by summons and complaint; that the company appeared in the action by attorney, and put in an answer to the complaint, duly verified by its president; that the case was noticed for trial, and was tried by and before a justice of this court, who awarded judgment in the action in due form, and that judgment was thereupon properly entered. The point of objection is, that it appears from the record that the action was tried at a term or circuit other than that for which it was noticed. The objection is untenable. Jurisdiction of the person and subject-matter appearing, the objection, if well based in fact, was but an irregularity, which could not be urged in a collateral suit. But even irregularity is not affimatively established. For anything that appears to the contrary, the trial •was duly postponed from the time at which it wa,s noticed for trial to the time and place of trial. The record is not impeached for want of jurisdiction. The objection that a valid judgment was not proved in favor of the plaintiff’s assignors against the company, is not well taken.

It is next urged that the execution issued upon the judgment was informal and void. The execution was in due form in all essential requisites. The teste and return, if informal, would not affect its validity when attacked collaterally. It was sufficient in form to authorize its execution by the sheriff. (Fake v. Edgerton, 5 Duer, 681; Park v. Church, 5 How., 381; Healy v. Preston, 14 id., 20.) The return of nulla Iona was sufficient, and there is nothing to'show that it issued to other than the proper county. Indeed, it does appear affirmatively that it issued to the county named in the certificate of incorporation as that in which the business of the company was to be transacted. We are of the opinion that the condition precedent to the right of action against a stockholder of the company required by the statute was, in this case, established.

It is next insisted that the defendant never held any of the stock of the company; hence was never one of its stockholders within the intent of the statute. The proof is that he was one of the trustees named in the certificate of incorporation. He was a subscriber for fifty shared of the stock, and subsequently was the acting secretary of the company. Now, by the act itself, trustees must be stockholders, and as he was liable on his subscription for fifty shares of stock, and assumed the duties and obligations of a stockholder, he should be held to such liabilities as the law imposed upon stockholders, even although he never, in fact, actually received his certificate of stock. (Burr v. Wilcox, 22 N. Y., 551; Spear v. Crawford, 14 Wend., 20.) And having been shown to be a stockholder, or responsible to creditors as such, such relation to the creditors will be presumed to continue, at least until there is affirmative proof of its termination. (Herries v. Wesley, 13 Hun, 492.) The decision in Chase v. Lord (77 N. Y., 1) is not, under the circumstances of this case, an authority against the plaintiff on this point. The proof that, at some time subsequent to that when the defendant became a stockholder, not shown to have been at a time prior to the accruing of the indebtedness to the plaintiff’s assignors, 1,999 shares were issued to other persons than the defendant, will not relieve him from liability. The finding that the defendant was a stockholder of the company for fifty shares of the capital stock is, as we think, supported by the proof, and the evidence is conclusive of the furthei fact that his subscription for the fifty shares was never paid in.

It is further urged by the appellant’s counsel that the claim made by the plaintiff’s assignors against the company was not established by the evidence. The judgment against the company did not conclude the defendant in this action brought to charge him with personal liability. Judge Allen says, in Kincaid v. Dwinelle (59 N. Y., 551), that the judgment against the corporation is of no virtue or effect in the action against the stockholder, and is only evidence as proving the performance of the condition precedent.” The decisions are uniform to this effect. (Miller v. White, 50 N. Y., 137; McMahon v. Macy, 51 id., 155; Hastings v. Drew, 76 id., 9.) It was, therefore, incumbent on the plaintiff to verify, by competent and satisfactory evidence, the claim against the company the same as if no action had been previously brought upon it. This point in the case was very sternly litigated on the trial before the referee. Its decision was made to turn very much on the question of Mr. Norton’s credibility. If his testimony be given entire effect, the claim of the plaintiff’s assignors against the company was well established, for in that case the employment of the former by the latter was direct and explicit, through Norton, its accredited agent. It is urged that the evidence given by Norton was contradicted to an extent that rendered it utterly unreliable. He was seriously assailed in his statements by contradiction by other witnesses, and, as is urged, by improbability and adverse inferences; on the other hand, he was materially corroborated by surrounding circumstances, and by many important and unquestioned facts. The printing and binding of the books, pamplets and papers, constituting the claim, were in suits and pertained to matters in which the company was interested. The work was apparently in furtherance of its interest. Norton was its counsel in those matters, and its attorney in some of the suits. The president of the company, it seems, had knowledge that the work was being done, as had also its financial agent. Thus it is seen that the case is not made conclusively for the defendant, but it rested on inferences from facts proved, on probabilities, and very much on the credibility of witnesses. In such case, the court, on appeal, should accept the findings of the referee as conclusive. Of course, the General Term must examine the case, but a reversal will be granted only when it can be seen, on a review of all the evidence, that the finding was erroneous. (Roe v. Boyle, 7 W. D., 566; Trull v. Barkley, 5 id., 159; Roosa v. Smith, 17 Hun, 138.) We are inclined to accept the finding of the referee on this question of fact, as sustained by the proof submitted on the trial.

It is further urged that the defendant was a creditor of the company to an amount exceeding or equal to his stock, and that his claim was one for which the stockholders were individually liable. Were this so, it would defeat a recovery against him in this action. (Mathez v. Neidig, 72 N. Y., 100: Agate v. Sands, 73 id., 620.) The referee found against the defendant on this point also, and, after a careful examination of the evidence, it cannot be asserted, as we think, that the finding is erroneous.

On the whole, our conclusion is that the judgment must be affirmed, with costs.

Boardman, J., concurred.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM H. BUSH, Respondent, v. MOSES WEEKS, Appellant.

      Justice’s G'ow't — application for an adjournment — when it rests in the discretion of the justice — when a pa/rty can be required to state what he expects to pi'ove by a/n absent witness.

    When, upon an application for an adjournment in a justice’s court, the good faith of the applicant is involved, the granting or refusing of the adjournment rests in the sound discretion of the justice, and an appellate court will not interfere with the decision of the justice, unless an abuse of discretion bo clearly shown.
    Although it is not usual to require a party to state what he expects to prove by an absent witness on the first application for an adjournment, yet, when his conduct in applying for a second adjournment is such as to cast suspicion upon his good faith, and he refuses to state, either upon oath or otherwise, what he expects to prove by his absent witness, the justice may refuse to grant the adjournment.
    Appeal by the defendant from a judgment of the County Court of Greene county, affirming a judgment of a justice of the peace.

      D. H. Dailey, for the appellant.

      John Sanderson, for the respondent.
   Bockes, J.:

The only ground of error urged in this case is the refusal of the justice to grant a further adjournment, demanded by the defendant bn the twenty-third of December. There had been already three adjournments — one by consent of parties, and two on the defendant’s application. A fourth adjournment was demanded and refused by the justice, whereupon the defendant abandoned the case.

The last application was based on the absence of two witnesses, whom the defendant swore he had duly subpoenaed, and who, he also swore, were material and necessary witnesses for him on the trial of the case. The defendant’s good faith-in making this application was a proper subject of inquiry by the justice. If made in bad faith, it was properly denied. In a case involving the good faith of the party making the application, the granting or refusing it rests in the sound discretion of the justice. It was so held in Onderdonk v. Ranlett (3 Hill, 323). See, also, Weed v. Lee (50 Barb., 354) and Sherar v. Willis (5 Lans., 329). And the appellate court will not interfere with the discretion of the justice in determining the question of adjournment, except in a clear case of an abuse of discretion. (Weed v. Lee, supra) We are of the opinion that the discretion of the justice was well exercised in this case in refusing a further adjournment. There were strong circumstances of suspicion attending the application. When asked if all his witnesses were to the same point (when instructed that he should answer) he said he could not tell what answers they would make until they were sworn. Then when inquired of how he could swear that their testimony was material (being directed to answer) he replied, from what he had heard them say. When asked what point he expected Reuben Jump (one of the absent witnesses) would swear to, to which the other witnesses could not testify, he refused to make answer. Again he was asked if there was any material point in the case which he expected to prove by Jump that he could not prove by any witness present, he replied, there was. Then the following questions being put, “Will you now state what that point is ?” “ On what material point in the case do you expect Reuben Jump to swear ?” he refused to answer either of them. He also refused to disclose what he expected to prove by Jump. As to Powel, the other absent witness, he was asked what material points in the case he expected him to swear to, he refused to answer. No application for an attachment was made against either of the absent witnesses, and there was no sufficient proof that they could not have been brought in on that process. An attempt was made to show that Jump was unable to attend from illness or lameness, but the proof was quite insufficient to establish such fact. It appeared that he was able to be about, able to go to the neighbors and to ride in a wagon, and was at church the preceding day; that he was hurt two weeks or more before, but had been out all the time. Here was clearly a case for the exercise of a fair discretion by the justice as to the necessity of an adjournment, having in view the good faith of the party making the application. He should have promptly answered the questions put to him, and should have stated what he expected to prove by the absent witnesses, several previous adjournments having been granted to him. It is not usual to require a party to state what he expects to prove by an absent witness on the first application. (Pulver v. Hiserodt, 3 How., 49, and cases there cited.) But it was laid down in Onderdonk v. Ranlett (3 Hill, 323) that where a defendant’s conduct on applying for a second adjournment before a justice is such as to cast suspicion upon the bona fides of the application, and he refuses to state, either on oath or otherwise, what he expects to prove by his absent witnesses, the justice may refuse the adjournment. The rule is, that where the circumstances attending the application are suspicious and the proof raises just doubt as to the bona Jides of the party making it, the adjournment is no longer a matter of right, but the granting or refusing it becomes a matter of discretion with the justice. In such a case, error cannot be predicated on his decision, whichever way he may decide. In this case, as we think, a case was made for the exercise of fair discretion by the justice; and further, that it was here very properly exercised.

Judgment of the County Court should be affirmed, with costs.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Bocees, J.:

text:
    J. SPENCER AVERY, Respondent, v. JOSEPH L. WILLIS and others, Appellants.

      County Court — has no jurisdiction of an action to reform and foi'eclose a mortgage.

    Where, by mistake, the land intended to be covered by a mortgage is therein so vaguely and uncertainly described as to render it impossible to identify and locate it, an action to reform the mortgage by correcting the error in the description of the land, and to foreclose the mortgage as so reformed, can be brought in the Supreme Court, but cannot be brought in a County Court, the latter court not having jurisdiction of an action to reform a mortgage.
    Appeal from a judgment of the County Court of Madison county, rendered in favor of the plaintiff.

      Henry Barclay and G. A. Hordes, for the appellants.

      John E. Smith, for the respondent.
   Bocees, J.:

This action was brought in the County Court of Madison county, for the reformation of a mortgage, and for its foreclosure.

It may be remarked preliminarily that there would be, as we think, no difficulty in affirming the judgment in this case, barring the question as to the statute of limitations, had the action been in the Supreme Court, a court possessing general equity powers.

It is well proved that the defendant, Joseph L. Willis, was indebted to the plaintiff in the sum of $1,500 when he made the mortgage in suit, December 29, 1866, and that he then agreed to give the plaintiff a mortgage on the premises “his grandfather Long gave him,” being the premises sought to be charged with the mortgage lien, to secure the payment of the $1,500 and interest; and further, that, in pursuance of such agreement, he did then execute to the plaintiff the mortgage in suit; also that the appellants knew, when they accepted their subsequent mortgage, of the existence of the plaintiff’s mortgage, and that it was supposed to be, as it was intended to be, a valid lien on the Long farm. Subsequently it was discovered that the plaintiff’s mortgage was defective in this: That, by its terms, it did not describe the Long farm, nor indeed any particular premises whatsoever; that the description was entirely indefinite and uncertain as to the lands purporting to be mortgaged. The description was as follows, to wit: “All that certain tract or parcel of land lying and being in the town of Eaton, county and State aforesaid, and being one equal undivided one-half of lot No. 152, and containing 112 acres of land more or less.” The farm intended to be mortgaged was never known as lot No. 152, and was estimated to contain but 100 acres, not 112.

There was absolutely nothing whatever in the description to distinguish the lot or farm intended to be mortgaged from any other farm of equal number of acres in the town of Eaton. The description would apply as well to one farm of 112 acres, situate in that town, as to another. So the mortgage, as executed, delivered and recorded, was not an effectual lien upon any land or farm whatsoever. It could be made effectual only by an action, with' sufficient averments of fact, wherein it might be shown that the mortgagor agreed to give a mortgage on a particular farm, and that the mortgage in suit was intended to carry out such agreement, and to cover such farm, and the obtaining of a judgment or decree of the court declaring the mortgage effectual as a lien, according to the agreement and intention of the parties. Such action would be an action in equity, and the obtaining of the decree declaring the Ken would be a prerequisite to the right to enforce it by foreclosure.

The question then is, had the County Court jurisdiction of this branch of the case here before us on appeal ? Undoubtedly a court of general equity jurisdiction might entertain an action for the double purpose of declaring a lien and enforcing it by foreclosure. Such actions have been frequently maintained in the Supreme Court. The case of Crippen v. Baumes (15 Hun, 136) is one of many belonging to this class of actions. Still, the remedies sought are independent remedies, and might be attained by separate actions, and each would be open to separate and independent defenses. The proceeding to obtain a reformation of the mortgage is, in no respect, secondary or ancillary to the proceedings to foreclose the mortgage; on the contrary, it is primary in purpose and importance, as no relief by foreclosure could be had until the reformation of the mortgage should be decreed. The right to foreclose was dependent on this relief, and this relief could only be obtained by an action in equity. It follows that the County Court had no jurisdiction of this leading, independent and controlling branch of the case. That court has original jurisdiction only in certain specified cases. (Art. 6, § 15, State Const.; Code of Civ. Pro., § 310.) An action or proceeding to obtain the reformation of a defective deed, mortgage or other instrument is not among such cases. Section 318 of the Code of Civil Procedure does not obviate the difficulty of the want of jurisdiction. That section has reference to cases of which the County Court has jurisdiction.

The judgment must be reversed; and, being reversed for want of jurisdiction, the complaint should be dismissed, as the plaintiff could gain nothing by a new trial.

This conclusion renders it unnecessary to examine another important question, that of the statute of limitations.

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

Boaedman, J., concurred.

Present — Learned, P. J., Bocees aud Boaedman, JJ.

Ordered accordingly.


text:
    JOHN K. POTTER, Appellant, v. RUFUS FARRINGTON and others, Respondents.

      Extra allowance — in a judgment oreditor’s action, it must be based on the amount due on the judgment.

    In an action brought by a judgment creditor to set aside a conveyance of land made by the defendant, on the ground that it was made with intent to hinder, delay and defraud his creditors, in which action the plaintiff succeeds, an extra allowance granted by the court must be based upon the amount due to the plaintiff upon his judgment, and not upon the value of the land.
    Appeal by the plaintiff from an order made at Special Term, granting an extra allowance to the plaintiff in this action.

      H. J. More, for the appellant.

      L. B. Pike, for the respondents.
   Bockes, J.:

This action was brought by the plaintiff, a judgment creditor of the defendant, Rufus Farrington, to set aside a conveyance of land by the latter, on the ground that it was made to hinder, delay and defraud his creditors. The plaintiff succeeded in the- action, and we must assume, although the judgment is not laid before us. on this appeal, that a decree was granted setting aside the conveyance in so far as it interfered with the plaintiff’s rights, or declaring it inoperative as against the plaintiff’s judgment. The value of the farm covered by the fraudulent conveyance was $4,000. The plaintiff’s judgment was for a much less sum, but its amount is not •. given us in the appeal papers.

On a motion by the plaintiff for an additional allowance of costs,, the Special Term granted five per cent on the amount due him on his judgment, holding that the amount of the judgment lien, and not the value of the farm, constituted the basis on which the allowance should be estimated. The plaintiff appealed from the order, insisting that the Special Term was in error in holding — as is stated in the order — that the court had no power to grant an allowance on any different basis of computation than on the amount of the judgment lien.

We are of the opinion that the decision of the Special Term was correct. The basis of estimate given in the Code is the sum recovered or claimed, or the value of the subject-matter involved. There was no recovery here of any sum. The action was to establish the lien of the judgment and to make it effectual, notwithstanding the impediment to its enforcement, growing out of the fraudulent conveyance. The title to the premises was not disturbed by the recovery, except in so far as it was necessary to obtain satisfaction of the judgment. Thus the suit only involved the value of the farm to the extent of the alleged lien. It was held in Black v. O’Brien (11 W. D., 191) that in a case like this the plaintiff does not recover the land if successful, nor does a claim of title to land arise. As above stated, the object of the action was to establish the lien. In Struthers v. Pearce (51 N. Y., 357) the action was to obtain a judgment declaring the plaintiff’s interest in a lease. (See findings on pages 358, 359.) It was held that the plaintiff’s interest (one-fourth) was the subject-matter involved in the suit, and that the estimate of value on granting an extra allowance of costs to him should be limited to the value of his interest. In The People v. N. Y. & S. I. F. Co. (7 Hun, 105) the action sought the destruction of the property; hence the decision in that case is not here in point. So in Warren v. Buckley (2 Abb. [N. C.], 323) the action involved the entire title. In the O. & L. C. R. R. Co. v. V. & C. R. R. Co. (63 N. Y., 176) the action was brought to determine the validity of a lease of the road. It was decided that the subject-matter of the action was the lease, and that its value — not the value of the road — constituted the proper basis for an extra allowance. (See, also, Rothery v. N. Y. Rubber Co., 21 Hun, 172.)

We think the Special Term here adopted the true basis of estimate in granting extra costs.

Boardman, J., concurred.

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

Order affirmed, with ten dollars costs and printing disbursements.


text:
    SMITH SCHOONMAKER, Respondent, v. WILLIAM BROOKS, Appellant.

      Action for a penalty — reference to the statute giving it — what is not sufficient as — whether it must be indorsed upon the summons.

    This action, which was brought to recover the statutory penalties for allowing cattle to run at large uponThe highway, was commenced by the service upon the defendant of a summcais, issued by a justice of the peace, which required the defendant to appear before him, at his office, “ to answer Smith Schoonmaker, in a civil action for penalty for letting cattle run at large on highway, to his damage of two hundred dollars or under.” There was no indorsement upon the summons.

      Held, that section 7 of article 1, title 6, chapter 8, part 3 of the Revised Statutes, requiring a general reference to the statute giving the penalty, to be indorsed upon every process issued to compel the appearance of the defendant in an action brought to recover the same, was not repealed by the Code of Procedure.

      People v. Bull (10 Jones & Spencer, 19, 20) disapproved.
    That the statement of the object of the action contained in the body of the summons was not a sufficient compliance with the statute.
    In such an action the statute must be literally complied with, and the notice must be indorsed upon, and not embodied in the summons. {Cox v. N. 7. C. and H. B. B. B. Co., 61 Barb., 615, criticised, Per Bocees, J).
    Appeal from a judgment of the Sullivan County Court, affirming a judgment in favor of the plaintiff, rendered in a Justice’s Court. The action was brought to recover a penalty for allowing cattle and other animals to run at large upon a highway.
    The summons issued by the justice required the defendant to appear before him, at his office, at a time specified, “to answer Smith Schoonmaker, in a civil action for penalty for letting cattle run at large on highway, to his damage of two hundred dollars or under.”

      T. F. Bush, for the appellant.

      Butts & Merritt, for the respondent.
   Bockes, J.:

The action was brought for the recovery of penalties given by statute; but the process issued for the purpose of compelling the appearance of the defendant was not indorsed in strict conformity to section I of title 6, part 3, chapter 8, article 1 of the Revised Statutes (2 R. S., p. 481).

This provision of law is not repealed by the Code of Procedure. The intimation to the contrary in The People v. Bull (10 Jones & Spencer, 19, 20) is, as we think, without foundation. 'It is not repealed by any express reference to it, declaring it repealed; nor is it repealed by implication, as there is no provision of law inconsistent with it, thereby working its repeal. The section cited remains in force.

There was no endorsement whatever on the summons issued in this case; but in the body of the process there was inserted the following clause, to wit, to answer Smith Schoonmaker in a civil action for penalty for letting cattle run at large on highway.” The conceded object of the statute was to notify the defendant of the nature of the action commenced by the service of the process. But the statute prescribed the particular manner in which this notice should be given, to wit, by indorsement on the process. I should have no hesitation in holding that a literal compliance with this statute was requisite, were it not for the decision in Cox v. N. Y. C. & H. R. R. R. Co. (61 Barb., 615), and in The People v. Bull (10 Jones & Spencer, 19, 20). In these cases it is decided that if such notice (by due reference to the statute) actually accompany the service of the summons the law is well complied with; that an actual indorsement on the process was not necessary. The decision in the Cox case was at General Term, and was concurred in by Justices Johnson, Mújllin and Talcott. Not having been reversed or overruled, we must follow that decision ; but for myself, I must say it does not meet my approval. It has been repeatedly decided that a statute giving a penalty or forfeiture and providing for its enforcement must be strictly construed. This has become a canon of construction in the courts.

Then, admitting that the clause contained in the summons was equivalent in law to an indorsement thereon, was that sufficiently specific and definite to answer the requirement of the statute ? This we must answer in the negative. The section referred to requires that there “ shall be indorsed a general reference to the statute by which such action is given, in the following form, according to the provisions of the statute regulating the rate of interest on money,5 or ‘according to tlie provisions of the statutes concerning sheriffs,5 as the case may require, or in some other general terms referring to such statute.55 Now, the clause inserted in the summons makes no reference to any statute whatever. It gives no notice to the defendant of the offense charged against him, by reason of which offense a penalty was imposed. Whether the penalty was given by a statute, ordinance or by-law is not stated. Again, the apt of 1862 (chap. 159,) with its amendments, under which act the recovery was allowed, gives penalties for different causes, for different sums, and to be recovered by different classes of persons. (See § 1 and § 5 of chap. 159, Laws of 1862, as amended, Laws of 1867, chap. 811; Laws of 1869, chap. 121; Laws of 1872, chap. 776.) The case of Avery v. Slack (17 Wend., 85) is an authority against the sufficiency of the clause inserted in the summons in this case. In Perry v. Tynen (22 Barb., 137) the reference was to the title, part and chapter of the statute. This was held sufficient. Judge Paige says, “the reference in this case was to the title, which is not subdivided into articles. This was sufficient.55 In Andrews v. Harrington (19 Barb., 313), the reference was to the title, chapter and part of the 'Revised Statutes; this was held to be sufficient. In the cases wherein it was held that service of the complaint with the summons answered the requirement of the statute, it was further decided that the section of the law imposing the penalty should be accurately referred to. (The People v. Brooks, 4 Denio, 469; Cox v. N. Y. C. and H. R. R. R. Co., 61 N. Y., 615; The People v. Bull, 10 Jones & Spencer, 19, 20; Thayer v. Lewis, 1 Denio, 269.) Under the authority of these cases, and of Avery v. Black (supra), the clause inserted in the summons in this case was insufficient to meet the requirements of the statute. If it had been indorsed on the process, it would not have given notice of the cause of action for which a recovery was sought. As was said by Judge Co wen, in Avery v. Black, to hold otherwise “ would be to repeal the statute."

The judgment of the County Court and that of the justice must be reversed, with costs.

. Learned, P. J., and Boardman, J., concurred.

Judgment reversed, with costs.


author: Bocees, J.: Learned, P. J.:

text:
    WILL A. NYE, Appellant, v. THE NORTHERN CENTRAL RAILWAY COMPANY, Respondent.

      Removal of action to United States court — U. S. Rev. Stat., § 639, sub. 3, is still in force — when an action may be removed under it — at what time the requisite citizenship must exist— the petitioner need not join in the bond.

    Subdivision 3 of section 639 of tbe Revised Statutes of tbe United States providing for tbe removal of actions into tbe United States courts, on account of prejudice or local influence, was not repealed by the act of March 3, 1875 (10 U. S. Stat., 470), and is still in force.
    Under the said subdivision, the case may be removed at any time before the trial ordinal hearing, and the fact that it has been on the calendar for five or six circuits before the application is made is no ground for refusing it.
    It is not necessary that the petition for removal in such case should show that the parties to the action were residents of different States at the time of its commencement; it is sufficient if it appears that the requisite citizenship exists at the time of the filing of the petition for the removal.
    The petitioner need not join in the bond required to be given upon the granting of the application.
    Appeal from an order made at Special Term, removing this action into the Circuit Court of the United States for the Northern District of New York.

      H. Boardman Smith, for the appellant.

      G. M. Diven, for the respondent.
   Bocees, J.:

This is an appeal from an order of the Special Term, removing the action from this court into the United States Court for Northern District of New York.

The removal was allowed, on notice to the plaintiff’s attorney, under the third subdivision of section 639 of the Revised Statutes of the United States, known as the “ prejudice or local influence clause.”

That the order is appealable to the General Term of this court is not controverted by the respondent’s counsel. The ease is undoubtedly properly before the court for review.

(1.) Tbe provision for tbe removal of causes, contained in tbe third subdivision of section 639 of the United States Revised Statutes, under which the removal in this case was granted, is not repealed by the act of March 3, 1875. (18 U. S. Stat., chap. 137, p. 470, et seq.) That provision is still in force. (Cook v. Ford, 4 Am. Law Times [N. S.], 280; N. J. Zinc Co. v. Totter, 17 Am. Law Reg. [N. S.], 376; Meyer v. Const. Co., 100 U. S. R. [10 Otto], 457, 463, 471; Bible Soc. v. Grove, 101 id. [11 Otto], 610.) The act of 1875 repeals or supercedes section 639 of the United States Revised Statutes only as to cases embraced in both acts. (See, also, Wormser v. Dahlman, 16 Blatch., 319.) The act of 1875 does not include cases of removal under the “ prejudice or local influence clause” of section 639 of the Revised Statutes, hence it is not superseded or repealed.

(2.) It is stated in the affidavit read at Special Term in opposition to the motion, that the case had been on the calendar for five or six circuits, when it could have been tried. An objection based on this fact would have been fatal to the removal of the case had the application been made under the act of 1875. This has been decided in several cases. But the third clause of section 639 provides for a removal thereunder on filing the petition, “ at any time before the trial or final hearing of the suit.” Under this provision, therefore, the petition was presented and filed in due time. (Dillon on Rem. [3d ed.], § 59.)

(3.) It is objected that the petition for removal did not show that the parties to the action were residents of different States at the time of its commencement.

This objection would have been fatal to the application had it been based on the act of 1789. (Holden v. Ins. Co., 46 N. Y., 1; Pechner v. Ins. Co., 65 id., 195; Same Case, 95 U. S. R. [5 Otto], 183.) It was held, also, that the acts of 1866 (eh. 288) and 1867 (ch. 196) should be construed in harmony with the decisions under the act of 1789. (Dart v. Walker, 43 How., 29; Tapley v. Martin, 116 Mass., 275; Ind. R. W. Co. v. Risley, 50 Ind., 60-64.) It was also so held, under the act of 1875 (ch. 137), in Rawle v. Phelps (8 W. Dig., 551), and there are, perhaps, some other cases of substantially the same import. But the more recent decisions, giving construction to the act of 1875, and, by analogy, to the language employed in the Revised Statutes, make a distinction between tbe act of 1789 and tbe subsequent provisions on the point of objection here urged. This subject was quite fully discussed in the very recent case of Curtin v. Decker (contained in volume 11 of The Reporter,” 290), where the decision in Rawle v. Phelps (supra) is held to be unsound. (See, also, cases cited in Curtin v. Decker.) In this case it was decided, as expressed by the learned judge, upon “ the weight of authority,” that the right of removal, under the act of 1875, was “not dependent upon citizenship when the suit was commenced in the State court, but that, if the required citizenship existed at the time the petition for removal was filed in the State court, that was sufficient.” The language of subdivision 3 of the Revised Statutes, here under examination, is as follows, to wit: “ When a suit is between a citizen of the State in which it is brought and a citizen of another State,” it may be removed, etc., on stating, by affidavit accompanying the petition for removal, that the petitioner “has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such State court.” This language is equivalent to saying, when a suit is pending, etc., so it would not limit the citizenship, as did the act of 1789, to the time of the commencement of the suit. The difference in language between the act of 1789 and the acts of 1866 and 1867, was noticed by the chief justice in Pechner v. Ins. Co. (95 U. S. R. [5 Otto], 185). A similar difference of phraseology exists between the act of 1789 and the Revised Statutes and the act of 1875. The latter point to cases of citizenship at the time of the presentation of the petition for removal. (See remarks of Mr. Justice Miller in Johnson v. Morrell, 1 Woolw., 390, cited in 11 Reporter, 290, as to the act of 1867, referred to also in Curtin v. Decker, supra.) The question is also indirectly decided in favor of the respondent in the case of the Bible Society v. Grove (101 U. S. R. [11 Otto], 610), and in Meyer v. Const. Co. (100 id. [10 Otto], 457). Citizenship of defendant at time of filing of petition is sufficient. (Dillon on Rem. [3d ed.], §§ 63, 72; McGinnity v. White, 3 Dillon, 350; contra, Dart v. Walker, 4 Daly, 188; Slough v. Hatch, 20 Alb. L. J., 78; S. C., sub. nom. Stough v. Hatch, 16 Blatchford, 309; Jackson v. Mut. Ins. Co., 3 Woods C. C., 413; S. C., 60 Ga., 423.) We are of the opinion that the petition was sufficient, inasmuch as it showed that, at the time it was presented, the suit ivas between a citizen of the State in which it was brought (New York) and a citizen of another State.

(4.) An objection is urged to the bond filed on the part of the defendant, on the ground that it is not executed hy the defendant company, and also because insufficient in amount. The bond was accepted and approved by the court at Special Term (see order, fol. 62), and was ordered to be filed. (Fol. 50.) It was executed and acknowledged by two persons, each of whom justified in due form. We cannot, on appeal, hold that- the bond was insufficient in amount, and reverse the order for that reason. It was not insignificant in amount, in view of the terms of the condition.

On the point that it should have been executed by the company, we are furnished with the dissenting opinion in Knapp v. N. W. Mut. Ins. Co., decided in the Court of Appeals (19 N. Y., 634.) But we are not advised of the ground of the decision in that case. The language of the statute is that the petitioner must offer in the State court “good and sufficient surety for his entering, etc.” As an original question, we should hold that this language would not require the bond to be executed by the petitioner, hut that it would be a compliance with the law if executed by “ good and sufficient surety,” without also a joint execution by the party petitioning.

In conclusion, we are of the opinion that the order appealed from must he affirmed, with ten dollars costs and expenses of printing.

Learned, P. J.:

The weight of authority seems to sustain the respondent’s views, and I therefore concur.

Boaedman, J., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


author: Learned, P. J.:

text:
    EDGAR T. BRACKETT, Plaintiff, v. MOSES MILLER and others, Defendants. W. B. FRENCH, Purchaser, Appellant.

      Eedemption from a sale on execution — what is not a certified copy of the docket.

    An assignee of a judgment creditor on applying to redeem premises of the debtor, which had been sold under a prior judgment, presented to the sheriff what purported to be a certified copy of the docket, except that neither the name of the clerk nor his official title appeared in it, nor was it signed by him, or any one in his behalf, although the official seal was impressed upon it.

      Held, that it was not a certified copy of the docket, and was insufficient to enable the assignee to redeem from the prior sale.
    Appeal by W. B. French from an order made at Special Term, denying a motion made by him for a mandamus to compel the sheriff of Saratoga county to execute to him a deed, as the purchaser of certain premises at a sale thereof on execution issued upon a judgment.

      A. Pond, for French, purchaser, appellant.

      Harrington Putnam, for the respondents, George Harvey and Douw F. Winney, late sheriff.
   Learned, P. J.:

Hnder an execution in this action, certain lands were sold to Winsor B. French. "When the time to redeem had expired, the purchaser applied to the sheriff for a deed. The sheriff refused, on the ground of an alleged redemption by George Harvey, assignee of a judgment creditor. Thereupon a motion was made to compel the sheriff to execute such deed, which motion was denied, and the purchaser appeals. The question is, whether the papers presented to the sheriff on behalf of Harvey were sufficient to entitle him to redeem. He presented to the sheriff a paper, which was, in form, a certified copy of the docket, except that it was not signed by the county clerk, or by any one on his behalf. It had the official seal impressed, but neither the name of the clerk nor his official title appeared anywhere therein.

In the People v. Ransom (2 Hill, 51), there was no date or seal, and the court held that neither were necessary.

In the People v. Murray (5 Hill, 468), where a certificate of assessment was required, it was held that the name of the justice, in his own handwriting, at the beginning of the certificate, was a sufficient signing, under the act then in question.

The case of Olcott v. Tioga Railroad Company (27 N. Y., 546) only held that the single seal of the notary was sufficient. There was no lack of a signature.

There can be no doubt that the statute must be complied with, by presenting a cerauea copy of the docket. (Waller v. Harris, 20 Wend., 555.) And we cannot see how this unsigned paper can be called a certified copy. As a seal has been held to be unnecessary, the impression of the seal was of no use. If the county clerk had written his name in the beginning of the certificate some argument might have been made, under the case above cited, but, as the paper exists, there is nothing to give it any authority whatever.

This view renders it unnecessary to consider the other point made by the appellant.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion granted directing the sheriff to execute the deed, with ten dollars costs.

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

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


text:
    MORRIS SOLOMON, Respondent, v. THE CITY OF KINGSTON, Appellant.

      Destruction of property by a mob — it is no defense that it assembled for a lawful purpose — the city is liable for property carri'ied away as well as for that destroyed— when notice need not be given to the mayor or sheriff.

    A building iu which the plaintiff occupied a store caught Are; the Are not, however, having as yet reached his store, he remained in it, keeping the shutters and doors closed. A crowd, which had assembled to see the Are, having shown an inclination to break into the store, the chief engineer turned a stream of water upon them, whereupon he was struck with a brick, and went away to get a revolver. While he was gone, the crowd kicked the door and windows open, went into the store, broke the show cases therein, threw and left upon the floor a portion of the plaintiff’s goods, and carried other portions of them away.
    In an action by the plaintiff, brought under chapter 428 of 1855, against the city in which the building was situated, to recover the damages sustained by him:

      Held, that the fact that the original purpose for which the crowd had assembled, viz., to see the Are, was a lawful one, did not constitute a defense, as they had subsequently united in unlawful conduct and wrongfully broken into the plaintiff’s store.
    That he was entitled to recover for the goods taken away by the mob as well as for those destroyed upon the premises.
    That he was not, under the circumstances of the case, bound to notify the mayor or the sheriff of the threatened danger.
    Appeal from a judgment iu favor of the plaintiff, entered upon the report of a referee.
    The action was brought under chapter 428, of the Laws of 1855, to recover damages sustained by plaintiff, by reason of the destruction or injury of his property by an alleged mob or riot.
    On the 1st day of December, 1814, the plaintiff was carrying on business in the city of Kingston, in what was known as the “ Sampson Building;” several other stores were in the same building. His stock consisted of hats, gentlemen’s furnishing goods, trunks, valises and numerous other articles. On the evening of December 1, 1814, at about nine o’clock, a fire broke out in the Sampson Building, in a store occupied by one Sampson, and soon spread over the upper part of the building.
    Plaintiff, at about the time the fire broke out, was notified of it, and warned to take his goods out of the store to a place of safety. Tliis he neglected to do, but put up his shutters and locked the doors. In from about three-quarters of an hour to an hour, a considerable crowd had gradually gathered in front of plaintiffs store, and began to give, signs of a desire to break into it. Plaintiff then hired two or three men to assist him in protecting his property. After about half an hour, the crowd becoming more boisterous, the plaintiff applied to the chief engineer of the fire department for protection. The latter then turned a stream of water upon the crowd, when he was struck with a brick and went away to get a revolver. The crowd fell back for a moment; but immediately after the stream was turned back upon the fire, it rushed towards the store, and, after knocking down plaintiff, broke into the store, and took and carried away a great part of plaintiff’s stock.

      Charles M. Preston, for the appellant.

      E. S. Wood, for the respondent.
   Learned, P. J.:

The defendant insists, in the first place, that there was no mob or riot, because the crowd assembled at first for a lawful purpose, and that there was no • combination. But it is plain that though the original purpose for which the crowd assembled was lawful, yet they might unite in unlawful conduct, and thus become rioters. “ If, in an assembly of persons met together on any lawful occasion whatsoever, a sudden proposal should be started, * * * or to do any other act of violence, * * * and such motion be agreed to and executed accordingly, the persons concerned cannot but be rioters, because their associating themselves together for such a new purpose is in no way extenuated by their having 'met at first upon another.” (Hawk. P. C., bk. 1, chap. 65, § 3; Alb. Law Journal, vol. 22, 403.) Nor was it necessary that there should be a leader. The crowd breaking into and pillaging the plaintiff’s store were mutually aiding and assisting each other. The crowd broke in; kicked the door open, and went in through the door and the windows. Thus there was a combined breaking into the store, and a joint act of the crowd.

The defendant next insists that, as the property lost by the plaintiff was carried away by tbe crowd, it was not, within the meaning of the act, destroyed. It appears that the show casps were broken; and that hats and shirts were lying in the store the morning after the riot; and that, many goods, such as boots and shoes, were carried off by the rioters. The evident meaning of the act, chapter 42b, Laws 1855, is to compensate persons who suffer in their property by reason of mobs and riots. It could make no real difference whether the rioters actually destroyed the personal property on the premises of Solomon, or whether they took it out of his premises and then actually destroyed it. And whether they destroyed the boots and shoes by cutting them to pieces, or by wearing them out, would matter very little to the plaintiff. We think that the fair meaning of the act is that given in Sarles v. New York (47 Barb., 447); that the property -was destroyed, as to the plaintiff, when the rioters carried it off. Plunder, as well as wanton injury, is usually the work of such rioters ; and the result to the injured person is the same from either wrong-doing.

Next, the defendant insists that the plaintiff did not, according to the statute, notify the mayor or sheriff immediately after being apprised of any threat or attempt to destroy, etc., of the facts brought to his knowledge. In this case a fire had broken out in the building in which the plaintiff occupied a store. The fire did not reach the plaintiff’s store, and he was keeping his shutters up and his store closed. The crowd gathered around his store. He was advised that, if he wished to save his goods, he would better get them out. But this was advice given in reference to the danger from fire, not to the danger from a mob. It does not appear that the danger from the mob had been long apprehended. The chief engineer, seeing that the mob were inclined to break in, turned a stream of water upon them; then he was struck with a brick, and went away to get a revolver. When he returned, after an absence of fifteen minutes, the store had been broken open and the goods destroyed. The referee properly held that the plaintiff had no time within which to notify the mayor or the sheriff; and was, therefore, not bound to do so. (Moody v. Supervisors, 46 Barb., 659; Ely v. Supervisors, 36 N. Y., 297.) When the crowd became threatening around plaintiff’s store, if he had deserted the store in order to seek out the mayor, the defendants might have urged that the plaintiff had not used reasonable diligence to prevent the damage. The first assembling of the crowd gave no occasion for alarm, because they had come to see the fire. When the crowd became a riot there was no time to give notice.

These are the only points raised by the defendant, and we see no reason to reverse the judgment. <

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

Judgment affirmed, with costs.


text:
    GEORGE MARK, Respondent, v. THE NATIONAL FIRE INSURANCE COMPANY OF NEW YORK, Appellant.

      Policy of insurance — provision for arbitration — when not a condition precedent to the right of action — Kerosenenot a “ burning fluid or chemical oil ”— Interest of-the assured — when the policy is not annulled by a failure to state it.

    A policy of insurance provided, among other things, that if any difference should arise touching any loss or damage, the matter should, at the written request of either party, be submitted to impartial arbitrators, whose award, in writing, should be binding on the parties as to the amount of such loss or damage, but should not decide the liability of the company, and that no suit should be sustainable until after an award should have been obtained in the manner provided, nor unless it was commenced within twelve months after the loss should occur.

      Held, as neither the number of arbitrators nor the manner of their appointment was specified, and as there was no way provided whereby their appointment could be procured nor their award obtained within the time limited for the bringing of the action; as in case no differences should arise as to the amount of loss (but only as to the liability of the company) no arbitration could be had, and consequently no suit could be sustained; that the clause could not be treated as a condition precedent, compliance with which was essential to the bringing of the action, but as merely an independent covenant, collateral to the agreement to pay. ¡

    In the absence of proof the court cannot hold that keroseiie oil is a “burning fluid or chemical oil,” as these words are used in a policy of insurance, forbidding their use in the insured premises.
    A policy of insurance upon a boat was issued to “ George Mark, Superintendent.” The boat was owned in different shares by five persons, of whom Mark was one. He had been superintendent, and managed the boat for many years. The agent of the company knew that Mark was not the sole owner of the boat when he issued the policy.

      Held, that the policy was not avoided by the clause reciting that if the interest of the assured was other than the entire unincumbered interest, it must be so represented or the policy would be void.
    Appeal, from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought upon a policy of insurance against fire, issued upon a ferry boat, the Dyer. The policy provided, among other things: “ But provided, in case differences shall arise touching any loss or damage, after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial arbitrators, whose award, in writing, shall be binding on the parties as to the amount of such loss or damage, but shall not decide the liability of the company under this policy. * * *
    It is furthermore hereby expressly provided and mutually agreed, that no suit or action against this company for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery, until after an award shall have been obtained fixing the amoupt of such claim in the manner above provided, nor unless such suit or action shall be commenced within twelve months next after the loss shall occur; and should any suit or action be commenced against this company after expiration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.”
    The fire occurred October 17, 1876.
    After some delay plaintiff, on the 21th of May, 1877, requested that the company would arbitrate, and that arbitrators should be chosen in twenty days, and suggested that each party name one impartial arbitrator, and these two name a third. On the eleventh of July, defendant sent a notice that they agreed to arbitrate, and would name an arbitrator. On the twenty-first of July they named one. On the twenty-sixth of the same month plaintiff refused to-accept the person named as impartial, on the ground that he was president oí an insurance company. On the fourth of August the defendant refused to name any other,' and this action was commenced in September.

      On the trial, among other grounds, the defendant moved for a nonsuit, on the ground that no award had been obtained. The court refused, saying that neither side could select a man so as to obtain an unfair advantage; that if one party objected to an arbitrator named by the other, urging some ground which was cogent in his own mind, the party naming him had not a right to refuse to name another; had not a right to refuse to meet the terms of the policy, by procuring an impartial arbitrator.

      Matthew Hale, for the appellant.

      R. A. & F. J. Parmenter, for the respondent.
   Learned, P. J.:

It is often said by courts that parties can make such contracts as they choose, and therefore must abide by them. This is good in theory but not in practice. Men cannot make such contracts as they please with insurance companies, but are obliged to accept such contracts as the companies draw up. The necessities of life almost require a prudent man to insure. And the State authorizes incorporations for that purpose. But for the terms of the contract the insured is at the mercy of the company. And policies are full of conditions, of which the insured knows nothing, until he suffers a loss. Such policies are very unlike the contract commented on in Delaware and Hudson Canal Co. v. P. Coal Co. (50 N. Y., 250). “ It may be assumed that every provision * * * was inserted in words well chosen to give clear and distinct expression to the views of the parties.”

Two classes of cases are often spoken of in this connection; the one where parties undertake, by an independent covenant to provide for arbitration; the other where they qualify the right of action by providing that, prior thereto, certain facts shall be determined. (Case last cited, p. 266.)

It is claimed by defendant that this case belongs to the latter class, and that the award is a condition precedent.

It seems. to me that there a,re two reasons why this cannot be admitted. In the first place, no suit can be maintained after the lapse of twelve months, and it is out of the power of the plaintiff to compel an award within that time. This contract limitation has often been held valid, and is now recognized in the new Code. Both parties may agree on arbitrators, and yet no award may be obtained within that time. It could not be said that the defendant had prevented the making of an award. And if the award is a condition precedent, it must be obtained. And, secondly, there is no right to an arbitration, unless differences arise as to the amount of loss or damage. If no such differences arise, there can be no award. If then the defendants agree on the amount of damages, but refuse to pay, then the plaintiff cannot arbitrate, because the amount of loss is not disputed; and he cannot sue, because he has not obtained an award. So that the defendants have only to agree on the amount of damages and then refuse to pay ; and the plaintiff is effectually barred. The clause of the policy is general, that no suit or action shall be sustained until after an award shall have been obtained. And if the defendants insist bn the strictness of this as a condition precedent; they must take it as it stands. (Leach v. Neptune Fire Insurance Co. (58 N. H. [cited 21 Alb. L. Jour., 97].)

And there is still a further reason why this clause should not have the strictness claimed by defendants, and that is, that it prescribes neither the number of the impartial arbitrators nor the manner of choosing them. In Delaware and Hudson Canal Co. v. Pennsylvania Coal Co. (ut supra) a definite arrangement for the appointment of arbitrators was agreed upon in the contract. So it was in the leading case of Scott v. Avery (5 H. of L., 811). The committee and the members (who were the two parties) were each to choose one. If the committee refused, the member was to choose two; and in either case, the two to choose a third. And so also in Smith v. Brady (17 N. Y., 173), and cases of a similar character, where work is to be done to the satisfaction of an architect. Thus, too, in Dawson v. Fitzgerald (L. R., 1 Exch. Div., 257) the agreement was, that each party should choose an arbitrator, and they two an umpire. And while it is _ not safe to make a positive assertion, it would seem that, in the cases where such a covenant has been held to create a condition precedent, the arbitrator has been named or the mode, of appointment has been determined by the contract. So, at least, it ought to be.

It is not an answer to say that, in the present case, the parties agreed on the number of arbitrators and the mode of choosing. For this action is not on any award actually made. But the defense is that the plaintiff was bound to procure an award. And the question is, from whom? Will it be enough if he himself selects two impartial arbitrators ?

Without, therefore, examining the view taken by the learned justice who tried the case, we think that this clause should not be held to create a condition precedent; but to be collateral to the agreement to pay. (Gibbs v. Cont. Ins. Co., 20 Sup. Co. N. Y., 611.)

It is urged by defendant that there was no proof of the amount of damages caused by the fire. But it was not disputed that the boat was burned; and it plainly appears that, at the time of burning, she sank, and that the cost of raising her was more than her value.

There was, therefore, some evidence, though not much, that, as the result of the fire, she was a total loss.

The defendant also objects to insufficiency in the proofs of loss. Such proofs were served December 8, 1876. Objections were made January thirty-first, and supplemental proofs were served March seventh. It does not appear that any objection was made to these supplemental proofs. (Keeney v. Home Ins. Co., 71 N. Y., 396.)

It is further insisted in the answer that plaintiff used a burning fluid on the boat, in violation of the policy. The policy forbids the use of camphene, spirit gas, or any burning fluid or chemical oil. It was proved that kerosene was used. It was claimed by defendant that kerosene was a burning fluid or chemical oil. The defendant’s witness stated that he did not know what chemical oil meant, and he stated how kerosene was made from petroleum. We cannot hold, aside from proofs, that kerosene comes under the words “ burning fluid” ; any more than it did under the words “inflammable fluid.” (Wood v. N. W. Ins. Co., 46 N. Y., 421.) “ Burning fluid,” in this position, cannot mean every fluid that will burn. Whale oil will burn. (See Buchanan v. Exchange Ins. Co. 61 N. Y., 26.)

The defendants insist that plaintiff should have been nonsuited, under the clause, that the policy should be void, if the risk should be increased by means within the control of the assured. It appears that the Dyer was used as a ferry boat between Albany and Greenbusli, and had been so used from July, 1875. It seems that, in August and September, 1876, she ran very little, if at all. In October, 1876, about the twelfth, she began to run in the place of the Mark, taken off for repairs, and ran a few days, and was then taken off. While tied up and not in actual use, she was ready for service, with water in her boiler and wood in her furnace, ready to run. It might well, therefore, be said that she was (within the language of the policy) running on the Hudson river. Nor is any proof given that the risk was increased, when she was thus tied up, over the risk when she was actually moving. She was not burned, while laid up for the winter. She was the consort of the Mark, and was used when necessity required, and was thus, in a fair sense, running.

An important question arises on the form of the policy. It was issued to George Mark, Superintendent.” In fact, the property belonged to several persons, five in number, who owned certain definite shares; Mark owning fourteen forty-eighths. Mark had, for many years, been superintendent, and had had charge of the boats.

Now, it is not claimed, in the answer, that there is any defect of parties plaintiff, or that the other owners of the property ought to have been joined with Mark in this action. That point, therefore, is out of the case. The only way in which the objection above stated is presented is under the common clause in the policy that, if the interest of the assured be any other than the entire unconditional, etc., it must be so represented, or the policy shall be void.

We have the fact in this case that the policy described Mark as superintendent. This word was a plain indication that he was not the absolute owner. It would lead anyone to understand that he was managing the property, and that he was taking the insurance for the benefit of others. In a contract of insurance, where there is good faith, the fair meaning of the parties should be carried out. The agents, also, who issued the policy, knew that Mark was not the sole owner. (Van Schoick v. Niagara Fire, 68 N. Y., 434.) Although they did not know the real facts, yet they knew that Mark was not the sole owner. The importance of their testimony, to a large extent, is to show that the word superintendent was ■understood by them to mean that Mark was not absolute owner. If he was not, then the insurance must have been intended for the benefit of the owners; just as if a policy had been issued to a person describing him as agent. (Clinton v. Hope Ins. Co., 45 N. Y., 454.)

If the foregoing views as to kerosene are correct, the evidence of Yan Arnum, objected to, was immaterial.

It was claimed in the answer that the boat was unseawofthy for want of a competent master, crew and pilot. But so far as we see the policy is the ordinary policy against fire, such as is used for the insurance of houses. We do not discover that seaworthiness was a condition.

The refusal to charge that the plaintiff could recover only a sixth part of his interest was correct, under the views above stated, as to the meaning of the policy issued to plaintiff as superintendent.

We have examined the other questions touching admission and exclusion of evidence, and find no error.

Judgment affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    JEFFERSON CARLEY, Plaintiff, v. CAROLINE D. POTTS, Defendant.

      When one not a party to a sealed instrument may show that it was made for him.

    In this action, brought to recover a triangular strip of land, it appeared that the plaintiff had in 1856 contracted, by a sealed instrument, to convey about twenty-five acres of land (including the strip in question), part of a larger tract of fifty acres, to one Nehemiah Shannon, who agreed to pay a mortgage covering the whole fifty acres, as a part of the purchase-money. Thereafter, the mortgage was conveyed to Shannon’s wife, who foreclosed it by advertisement, and bought in a part of the fifty acres for the full amount due; the part so purchased being substantially that covered by the contract, except that it was claimed that the description did not include the strip in question. Upon the trial, evidence was received, against the plaintiff’s objection and exception, to show lliat Nehemiah made tlie contract as the agent for, and in behalf of his wife, who thereafter entered into possession of the premises with him, and that the amount due upon the contract had been fully paid to the plaintiff.

      Held, that the evidence was properly admitted.

      Briggs v. Partridge (64 N. Y., 864), distinguished.
    That the plaintiff could not recover the land.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict rendered in favor of the defendant.
    This is an action of ejectment, brought to recover a small, triangular piece of land, described as being about ten chains, twenty-three links; four chains, fifty links, and fourteen chains severally on the sides. The plaintiff in 1856 made a sealed contract with one Nehemiah Shannon to sell to him a certain piece of land, being about twenty-five and one-fourth acres, part of a larger piece of about fifty acres. And it is not disputed that the triangular piece in controversy is a part of the land described in that contract. By the contract the purchaser was to pay a certain mortgage then on said whole fifty acres. Afterwards that mortgage was assigned to Eliza Shannon, wife of the purchaser, and was by her foreclosed by advertisement. On the sale, part of the fifty acres was bought by her for the full amount of the mortgage; and it was substantially that part contracted as aforesaid to be sold which was thus sold under the foreclosure. The description, however, of the part sold under the foreclosure, it is said, did not include the triangle in question.
    In the contract the westerly line is described as running to the centre of the highway, thence easterly to the west end of the barn on said premises, thence north to Eliza Shannon’s land, thence east to the place of beginning. In the notice of sale this line is described as running to the highway running from Burdett to Reynoldville and lands of Eliza Shannon, thence east to the place of beginning. Eliza Shannon subsequently conveyed to the defendant by a deed, which included as well the lands described in the notice as the triangle in question.

      J. McGuire, for the plaintiff.

      M. J. Sunderlin, for the defendant.
   Learned, P. J.:

If the question were now before us we might perhaps hold that the description in the notice of sale did, in fact, include the triangle in question. A line which is described as running to the highway and lands of Eliza Shannon might be construed as a brief mode of describing a line which ran to the highway, then to the west end of the barn, then to Eliza Shannon's land. But the case has been tried upon a different theory, and it comes before us only on exceptions. As the plaintiff had contracted to sell all the land, about twenty-five and one-fourth acres, including the disputed triangle, to Nehemiah Shannon ; if the defendant was in possession under Nehemiah Shannon, the plaintiff could not equitably maintain the action, for Shannon went into possession under that contract. The purchase-price was to be forty-five dollars per acre. The number of acres was in dispute on the trial; and it was left for the jury to decide whether the amount of the mortgage and the money paid by Shannon to Carley did or did not pay the purchase-price in full. The jury, by their verdict, have found that the purchase-price was paid in full.

Therefore the plaintiff, as against Shannon, the purchaser under the contract, would have no right to recover any part of the land contracted to be sold.

Nor would this be altered by the fact that this action was originally commenced by Almira Carley, the wife of the plaintiff, and that the plaintiff has been substituted for her. For it appeared that by her will she devised all her land to the plaintiff. And, therefore, although he may not have had the title when he made the contract, yet, as he how claims the legal title, he is bound to carry out his contract with Shannon.

Shannon, who was a witness, testified, without objection, that he was acting in the contract for his wife, Eliza Shannon, when he agreed to buy this land. He was afterwards asked in what capacity he was acting when he signed the contract. This was objected to and admitted, and the plaintiff excepted. He answered that he was acting as agent for his wife, Eliza Shannon ; and the plaintiff insists that this was error.

The object of this evidence was only to connect the present-possession of the defendant, under her deed from Eliza Shannon, with the equitable rights of the purchaser under the contract of sale.

The plaintiff cites the case of Briggs v. Partridge (64 N. Y., 364). That case held that where an executory contract for the sale of lands under seal was made, a third person, not mentioned therein, could not be made liable by parol proof that the vendee was acting for him. But the court comment on the fact that the vendor was still in possession, and that no ratification of the undisclosed principal had been shown. On the contrary, it is admitted in the present case, that Eliza Shannon and Nehemiah Shannon went into possession of these premises. Thus there was evidence that she ratified the act. Furthermore, in foreclosing the mortgage on the whole fifty acres, and buying, for the amount of the mortgage, that part alone which was contracted for, there was a practical ratification.

The ease of Schaefer v. Henkel (75 N. Y., 378), was of a similar character. An action was brought on a sealed lease, which was signed and sealed, not by the plaintiff, but by one Brown. And it was held that proof of Brown’s authority as plaintiff’s agent would not entitle plaintiff to recover. Both' this and the case previously cited were cases of actions upon the sealed instrument. Here there is no action on the sealed instrument. The defendant does not seek to make the plaintiff liable on an instrument to which he was not a party. But the defendant, who has succeeded to the rights of Eliza Shannon, seeks to .show that Eliza Shannon was equitably entitled to the benefit of the contract with Nehemiah. Nehemiah might have assigned the contract to Eliza, and, if it was for her benefit, he ought to have done’ so. What need of a formal assignment, when the only question was whether the defendant was entitled to the equitable rights of the purchaser ?

But it may be said that a similar question arises as to the contract of the plaintiff, as being made as agent for Almira Oarley. However that might have been, had Almira continued to be the plaintiff, that question is immaterial, when Jefferson Carley is himself bringing the action. The contract was binding on him, according to the cases just cited. And it is immaterial whether or not he acted for Almira.. He is bound by the contract, and as he now claims to have the legal title to the little triangle, and as the purchase-price has all been paid, he has no right to eject one who is in possession under the person for whose benefit the contract was made.

The motion for a new trial is denied. The defendant should have judgment on the verdict, with costs.

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

Motion for >new trial denied, and judgment for defendant on verdict, with costs.


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    ABRAM NELLIS, Respondent, v. FRANK H. MUNSON, Appellant.

      A servitude is not an estate in land, — 1 B. 8., 738, § 137.
    A servitude is not an estate in lands within the meaning of section 137 of 1 Revised Statutes, 738, providing that every grant in fee, or of a freehold estate, not acknowledged or attested, shall not take effect as against a purchaser or incumbrancer until so acknowledged.
    Right of one who has exercised an easement to enforce, against a purchaser of the servient tenement, with notice, specific performance of a defective grant of the easement, considered.
    Appeal from a judgment in favor of the plaintiff,’ entered upon the trial of this action by the court, without a jury..
    Mrs. Swan being, in 1867, owner of certain land, by a sealed agreement with the plaintiff, conveyed to him the right to lay down a water pipe over the same. The agreement was not then witnessed or acknowledged, but it was acknowledged in March, 1868. After making this agreement, Mrs. Swan, in October, 1867, by an agreement, duly witnessed, contracted with one Snell to sell him this land, excepting therein the privilege given to the plaintiff. In November, 1867, she conveyed to Snell the land, by a warranty deed, without mentioning therein the easement of plaintiff. Snell took possession, under his contract, before he received the deed, and, while he owned the land, the plaintiff put in a water pipe, according to his easement. In January, 1869, Snell and wife conveyed the land to the defendant by warranty deed-containing no mention.of the easement. But the pipe had then been laid, and the defendant knew of that fact, and of plaintiff’s easement, before lie purchased. This action is brought to restrain defendant’s interference with the pipe, and the question is whether the plaintiff has the easement which he claims. The defendant insists that, because Mrs. Swan’s agreement was not witnessed or acknowledged, it was void against SDell and against him, until the time when it was acknowledged. It was found by the court that it was not acknowledged until Mai’ch 12, 1868. It was insisted upon by the defendant that it was acknowledged March 12, 1869.

      J. E. Dewey, for the appellant.

      J. D. & F. F. Wendell, for the respondent.
   Learned, P. J.:

It is only a grant of an estate, either in fee or of a freehold less than a fee, which is required to be witnessed or acknowledged by 1 Revised Statutes (§ 137, m. p. 738). Nothing is said of estates for years or at will; nor is anything said of servitudes. A servitude is not an estate in lands. This may be seen by the use of the word estate in 1 Revised Statutes (chap. 1, m. p. 722), Blackstone’s'Commentaries (bk. 1, chap. 11, and bk. 2, m. p. 103), Kent’s Commentaries (m. p. 401), 1 Washburn’s Real Property (chap. 3). He who has an estate in land is rightfully spoken of as the owner. He may put the land (in the language of Mr. Austin) to uses which, though not unlimited, are yet indefinite.

On the other hand, a servitude (or easement) is a right which the owner of one estate, the dominant, has over another estate, the servient, which does not belong to him. (3 Kent’s Com., m. p. 435.) They are charges on one estate for the benefit of another.” They are the right of the owner of one parcel of land to use the land of another for a special purpose, not inconsistent with a general property in the owner.” (2 Washb. Real Prop., m. p. 25.) They are rights in alieno solo, as distinguished from rights of ownership proper. (Digby Real Prop., 228.)

It is true that servitudes may be interests in land, and therefore may be within the statute of frauds, requiring a writing signed by the party granting the same. (2 R. S., m. p. 134, § 6.) But that is not the statute under consideration Leases for more than one year are within the statute of frauds; but they do not create freehold estates, and therefore are not within the requirement that they must be witnessed or acknowledged. And even if we admit that a servitude must be founded on a grant or a prescription, still that does not show that it is an estate in land. Indeed, all the expressions on the subject constantly indicate that the servitude belongs to the owner of an estate in land, and is exercised over another estate; but it is not itself an estate. We see no reason, therefore, why the section in question should apply. Mrs. Swan’s agreement, therefore, was not void against a purchaser. And as the defendant had actual, and perhaps also constructive notice of the servitude, he is bound thereby.

The defendant cites an expression in Blackstone, that a fee may be had in any kind of hereditaments, either corporeal or incorporeal. (2 Bl. Com., 106.) But if we turn back to page 21, we shall find that servitudes are not mentioned by Blackstone among incorporeal hereditaments. And without regard to that circumstance, it will be seen that Blackstone, speaking of incorporeal hereditaments, says that the owner has no property in the thing itself. But the present question is, what does the section refer to ? And, to determine that, we may see that it is, in a title, “ of the nature and quality of estates in real property, and the alienation thereof.” And in an article, “of alienation by deed.” The whole subject is of estates, and not of servitudes.

There is still another view. The agreement between Mrs. Swan and the plaintiff was acted upon by him. He took possession of the servitude granted to him, and expended money by putting down the water pipes. He was in a position, therefore, to enforce against her specific performance of her agreement. He could require the execution of a proper conveyance, if the one produced was not valid. The same rights which he had against her he would have against Snell and the defendant, who took their deeds with knowledge of the plaintiff’s equity.

We think that the judgment should be affirmed, with costs.

Present — Learned, P. L, Boardman and Bocees, JJ.

Judgment affirmed, .with costs.


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    ALVAN RICHMOND, as Assignee, etc., Appellant v. HIRAM PRAIM, as Sheriff, etc., Respondent.

      Discharge of imprisoned debtor — when the affidavit accompanying the application must be sworn to — it may be annexed to (instead of indorsed oh) the petition — the sheriff may release the debtor though not served with the order of discharge.

    Section. 5 of 2 Revised Statutes, 82, relating to the discharge of imprisoned debtors from arrest, and providing that “at the time of presenting such petition the following affidavit shall be indorsed thereon, and shall be sworn to by the applicant,” does not require the affidavit to be indorsed and sworn to in the presence of the court at that time, but only that at the time of its presentation the petition shall have upon it, sworn to by the applicant, the required affidavit. Browne v. Bradley (5 Abb., 141), criticised.
    The fact that the affidavit is annexed to, instead of being indorsed upon the petition, is immaterial.
    In an action against a sheriff for an escape, it is a defense for him if he shows that a valid order for the discharge of the debtor has been made, though it has never been formally served upon him.
    Appeal from a judgment in favor of tbe defendant, entered on a trial by the court without a jury.
    The action was brought for an escape from the jail limits of Fulton county of one Henry D. Helterline, who was imprisoned on an execution issued on a judgment recovered by this plaintiff, for the conversion of personal property. The sheriff justified for the alleged escape, under an order of the Fulton County Court, made the 5th day of April, 1880, by which order the court directed the discharge of Helterline from imprisonment.

      S. L. Seabrook, for the appellant.

      J. M. Dudley, for the respondent.
   Learned, P. J.:

Under the decision in Bullymore v. Cooper (46 N. Y., 236), the order of discharge was insufficient in its recitals to protect the defendant. It is, therefore, necessary to recur to the proceedings on which the order was based, to see whether the papers presented to the County Court were sufficient to give the court jurisdiction. (See case cited, at p. 246.)

The first point made by plaintiff is that the schedules are not “ just and fair ” which were presented to the court with his petition, in that, at the time of his arrest, he owned a watch and had a contract, and that he had disposed of the watch and of some of the proceeds of the contract at the time of the petition. But this question, viz.: whether the debtor’s proceedings are just and fair is one to be tried by the County Court. And it has been tried by that court, and decided in favor of the debtor. "Whether the acts of the debtor were or were not fraudulent, was a matter for that court to investigate.

The next point is that the affidavit of the debtor speaks of the “above” petition and account, instead of the “within” petition and account. (2 R. S. m. p. 32, § 5.) In Hale v. Sweet (40 N. Y., 97), cited by plaintiff, the variation in the affidavit changed its meaning materially. In this instance it does not.

The next point is that the affidavit of the debtor was not indorsed on the petition, but was annexed.

This objection was made on the offering of the petition and papers in evidence, but it does not appear from the case what the fact was. The affidavit follows the petition immediately; but it is not stated in the case that it was written on the same or on another piece of paper. The words “above petition,” contained in the affidavit, would be accurate, even if the affidavit were written on the back of the petition. And from those words alone we have no reason to think that the affidavit was not indorsed.

The plaintiff cites Browne v. Bradley (5 Abb., 141). This decides nothing on the question of indorsing or annexing the affidavit. Nor does Bullymore v. Cooper (2 Lans., 78), also cited by plaintiff.

No objection of this nature was taken by the plaintiff on the hearing before the county judge. We think that it does not appear that the affidavit was not indorsed; and that, if it did so appear, it would be immaterial.

Another and much more important question relates to the time when the affidavit was made. The petition was dated March eighteenth; the affidavit was sworn to March nineteenth; the petition was presented to the court April fifth, and the order made that the debtor be brought before the court forthwith; and he was so brought that day. No affidavit, so far as appears, was made that day. The question is wjiether, under section 5, above cited, the applicant must take the oath at the time of presenting the petition. A literal compliance with that is often impossible, because the petition is presented in court, while the applicant is, or may be in actual custody in jail. He cannot, therefore, swear to a petition at the time of presenting it, when he may not be in presence of the court. After presenting the petition, it is true, an order is to be made that he be brought before the court. This implies that he was not there when the petition was presented. And though for precaution it is not uncommon to have the applicant verify the petition when he is brought in, yet it is plain that the petition must have been presented before, otherwise the order to bring him in could not be made.

This question is left carefully undecided in Bullymore v. Cooper (46 N. Y., 236). The Special Term case of Browne v. Bradley (ut supra) expresses an opinion that the affidavit cannot be made before the presenting. That is followed in Bullymore v. Cooper (2 Lans., 78). But other points were there relied upon. It is followed in Hillyer v. Rosenberg (11 Abb. [N. S.], 402, Spec. Term Com. Pleas). But the learned judge, appreciating the difficulty above mentioned, was obliged to hold that the presenting the petition was to be construed to extend to the time when the applicant was brought before the court under the order.

The statute provides only for one affidavit. A copy of the petition and schedules are to be served on the creditor with a fourteen days’ notice. (Sec. 3.) Can it be that a copy of an unverified petition is to be served ? Must not a copy of the same papers be served on the creditor which are afterwards presented to *the court ? Is the court to make the order to bring the applicant before it on an unverified petition? This would be entirely contrary to all practice. It will hardly be doubted, therefore, that cm affidavit must be made before the copy of the petition is served, and that such affidavit must be upon the petition when it is first presented. Is there anything in section 6 which indicates that another affidavit is to be made ? Nothing. A summary examination is to be made of the applicant on oath, and other proofs are to be heard. That was done in this case.

Is there, then, anything in the language of section 5 inconsistent with this practical view ? It says that, at the time of presenting the petition, the following affidavit shall be indorsed thereon, and sworn to by the applicant. Does that mean that the indorsing of the affidavit must be done in the presence of the court? Certainly not. The meaning is that, at the time of presenting the petition, it shall have upon it, sworn to by the applicant, the affidavit required. There would have been no difficulty in expressing the meaning claimed by the plaintiff. The statute might have said: At the time of presenting the petition, the applicant shall indorse and swear to the following affidavit. Or the language of 2 Revised Statutes (m. p. 28), section 2, might have been used, or that of 2 Revised Statutes (m. p. 17), section I. In those cases the language shows that the applicant is to make the affidavit before the officer, and for the very obvious reason that, in those cases, no previous service of a copy of the petition on creditors is necessary.

And it should be noticed here that the position taken by the plaintiff originated in the remark made by the Special Term in Browne v. Bradley, which was not necessary to the decision of the case. Nor has there been any case decided which necessarily involved the point under discussion. Again: the attorney for the creditor was present when the applicant was brought into court, and made certain preliminary objections. This was not one of them.

It is further urged by plaintiff that the sheriff did not formally discharge the debtor, and that the order of discharge was not served on hifn. Rut if it was actually granted, and was valid, the sheriff cannot be held liable for obeying it, although he was not formally served. He may not be obliged to obey, but he is not to be punished for obeying a valid order before service. The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.