author: Maynard, J.

text:
    The People ex rel. Michael G. Kuhn, Resp’t, v. The Protestant Episcopal House of Mercy of the City of New York, App’lt.

      (Court of Appeals,

      Filed April 26, 1892.)

    .1. Vagrants—Commitment op child under sixteen—Laws 1886, chap. 353.
    It was intended by chap. 3534 Laws 1886, amending § 1466 of the consolidation act, authorizing the commitment of a female to certain institutions during minority, that the exact age of the delinquent should be ascertained by the magistrate, and stated in the commitment, and when so ascertained and stated it must control in determining the period of detention, unless reviewed and corrected by an appellate tribunal in the proceeding in which the warrant was issued.
    :8. .Same.
    The adjudication of a police justice in such a proceeding cannot be reviewed by a writ of habeas corpus in the supreme court.
    (Andrews and Pinch, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, •first department, affirming order of special term directing the release and discharge of Josephine Kuhn from the custody of appellant and an interlocutory order overruling the demurrer interposed by the appellant to the traverse to the return to the writ of .habeas corpus issued herein.

      JS¡bridge T. Gerry, for app’lt; Andrew Gomstoclc, for resp’t.

         Reversing 42 St. Rep., 420.

   Maynard, J.

The relator’s daughter was, upon his applicatian, committed by a police justice in New York City, January 13, 1889, to the custody of the appellant during her minority, unless sooner discharged by the trustees or managers under chapter ■353 of the Laws of 1886, which amended § 1466 of the Consolidation Act.

The commitment recited that it had been proven to the satisfaction of the magistrate by competent testimony, and by the confession of the daughter, that she was then of the age of seventeen years and had been found associating with vicious and dissolute persons and was willfully disobedient to her parent and guardian ■and was in danger of becoming morally depraved. It adjudged that the several facts thus recited were true. On August 28, 1891, the relator sued out a writ of habeas corpus in the supreme court, in substance alleging that his daughter at the time of her commitment was nineteen years of age; that her minority terminated May 27, 1891, and that she was, therefore, entitled to be discharged from the custody of the appellant. The return set forth the commitment as the cause of detention. The relator traversed the return, averring that her age was erroneously stated- in the ..commitment; that no evidence was given before the police j ustice upon the subject and that she was, in fact, at the time of the application for the writ over twenty-one.

The appellant demurred to the traverse upon the specific ground that the proceedings upon which the commitment was based and the facts therein recited and adjudged could not be reviewed in this manner. The demurrer was overruled and a hearing ordered, at which the relator and. a woman, who lived in the same house at the time of the daughter’s birth, testified that she was born in May, 1870. The court thereupon, in an order reciting the proceedings, adjudged that she had attained her majority and directed the appellant to discharge her from custody. This order was affirmed at general term and an appeal taken to this court.

We think the demurrer to the traverse should have been sustained, the proceeding dismissed and the relator’s daughter remanded to the custody of the appellant. The age of the daughter was -•a fact material to the jurisdiction of the police justice, -which he was •expressly authorized by the statute to ascertain, and which he did •determine upon proofs submitted to him, and his adjudication in this respect cannot be questioned in this proceeding. It is not denied that the commitment has all the force and effect of a final judgment of a court of competent jurisdiction under the provisions of the Code regulating the procedure in habeas corpus cases. Code, § 2016; Matter of Moses, 1 N. Y. Cr., 508; Matter of Wright, 29 Hun, 357; Matter of Donohue, 1 Abb. N. C., 1; People ex rel. Tweed v. Liscomb, 60 N. Y., 559; People v. N. Y. Juvenile Asylum, 12 Abb. Pr., 92; Matter of Baker, 11 How. Pr. 418; People ex rel. Van Riper v. N. Y. Catholic Protectory, 106 N. Y., 604; 11 St. Rep., 155.

The degree of its conclusiveness is not affected by the grade of the tribunal from which it emanates. The rule has the same ¡application to the judgments of inferior as of superior courts. These principles have been so often enunciated as to become elementary and their correctness and force as 'general propositions of law are not disputed by the respondent. But it is insisted that they are not applicable to the point involved upon this appeal; that they are limited to jurisdictional facts, determined by the -court which renders the judgment to have an existence, and do not preclude an inquiry into any other matter which may tend to show that the imprisonment is unlawful.

Generally speaking, this is undoubtedly true, but the jurisdictional facts referred to are not simply those which must exist before the criminal court can lawfully take any cognizance of the •case, but they include every fact which the court is authorized by law to determine and which it does adjudicate in rendering the j udgment under which the prisoner is detained.

In the present case, if the police justice was limited in determining the age of relator's daughter to an inquiry as to whether •she was over twelve and under twenty-one, the question of her exact age would be an issuable fact in any proceeding which might be brought to secure her release upon the ground that her term of detention had expired. But if it was the duty of the magistrate to' ascertain and determine her precise age, and include it in the commitment, his determination can not be attacked in any collateral proceeding. The act of 1886 expressly requires the agcof the delinquent to be stated. This, pro vision is not satisfied by a statement of a maximum and a minimum limit, between which her age may be included and embracing a period of nine years. It contemplates a judicial finding and declaration of her exact, age, and impliedly clothes the police justice with the authority to make the necessary investigation to properly execute this statutory power. It was an important fact to be asertained and embodied in the judgment for the information and guidance of the. reformatory institution, to whose guardianship she was to be intrusted, and if omitted the beneficent object of the law might be in a measure defeated. An institution like the appellant would be seriously embarrassed in the regulation and administration of its affairs, and in the efficient conduct of its work, if the record, of each commitment, which constitutes its authority for the detention of its inmates, did not disclose the age of the delinquent and thus fix the term during which she could be subjected to its wholesome restraints and influences. It cannot be expected to possess. the means of successfully resisting an application of this character, and it ought not to be compelled to assume the risk of an unlawful detention if it should happen that the age was not correctly stated in the warrant

Should the claim of the relator be upheld, it would follow that,. if the appellant detained any inmate after she had actually arrived at her majority, it would be an unlawful deprivation of her liberty, notwithstanding the age given in the commitment would indicate that the period of restraint had not expired. We do not. think the legislature intended to place the institution in a position of such peril.

It is important in this connection to note the changes in the law effected by the amendatory act of 1886. The original section of' the consolidation act authorizing these commitments was a reenactment of § 1 of chapter 409 of the Laws of 1867, and was - especially crude and imperfect. No proofs were required; no-formal adjudication of facts was necessary, and the contents of the commitment were not prescribed. Under such a statute the-question of the exact age of the delinquent would always be open to inquiry. Evidently the practical working of the section was. not satisfactory, and hence the substitute of 1886 was adopted, which provided a well defined method of judicial procedure, summary in its character, but omitting no essential fact from the-scope of its investigation. It may sometimes occur that through mistakes in the proofs a person committed may thus be made -, subject to detention after she has reached her majority. The-actual evil from such a source, however, must be slight in comparison with the confusion which would result if these institutions-could be compelled at any time to defend their right to the custody of each inmate by the production of proof, aliunde the record,. that she was still in fact a minor.

It is to be further observed that if the commitment does not conclude the relator as to the age of his daughter, the appellant. will also be at liberty to dispute it upon this point, and to insist -upon detaining her after she has reached her'majority according to the statement of her age in the warrant, by showing that such ¡statement was erroneous and that she was younger than the age •stated by one, two, or any given number of years. A construction which will inevitably lead to such complications and uncertainties in the execution of the law should not be adopted unless the language employed imperatively requires it.

We have, therefore, reached the conclusion that it was the intention of this enactment that the exact age of the delinquent ¡should be ascertained by the magistrate and stated in the commitment, and that when so ascertained and stated it must control in ■determining the period of detention, unless reviewed and corrected by an appellate tribunal in the proceeding in which the warrant was issued.

It is not seen how. any actual hardship is likely to result from the application of this rule. The managers of the institution have -the authority to discharge an inmate at any time, when it shall •appear that she is not a proper subject for their care. If in any ■case it should be shown to their satisfaction that a mistake had been made in the statement of her age, and that she was not within the statutory limits, and that no harm would probably result to her if discharged, we cannot doubt they would exercise this power and restore her to her family and friends.

It is insisted that the exact age of the relator’s daughter is not ■stated in the commitment in this case. The recital is, that on •January IS, 1889, the date of the commitment, she was seventeen years of age, and it must be conceded that this averment would be consistent with a finding that she was of that age on any day in the year terminating with that date, and if the relator had waited until January 13, 1892, before instituting this proceeding, it might be held that he was not seeking to put in issue any material statement in the commitment. But that question is not here. He is now attempting to 'show that she was nineteen on ■the date mentioned; a plain contradiction of the judgment of the police justice, which is not permissible. Concededly, the commitment is imperfect in this respect, but it is not a fatal omission, •especially in view of the saving clause of the statute, which de- ■ dares “ that no commitment made under this act, which shall recite the facts upon which it is based, shall be deemed or held to be invalid by reason of any imperfection or defect in form.”

The orders of the general and special terms should be reversed and an order entered dismissing the proceedings and remanding .the relator’s daughter to the custody of the appellant.

All concur, except Andrews and Finch, JJ., dissenting.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Frederick Schneider, Resp’t, v. The Second Avenue R. R. Co. et al., App’lts.

      (Court of Appeals,

      Filed April 26, 1892.)

    1. Negligence—Street railroad — Liability ot driver approaching-RAILROAD CROSSING.
    It is a fair question for a jury to determine whether the driver of a horse car is not guilty of negligence in approaching the crossing of another railroad track at a rate of speed which would not enable him to stop his. car almost instantly upon discovering another car approaching on such track. And if he do approach at such a slackened rate of speed, it would, also be a question for the jury whether he was not guilty of negligent-conduct in attempting the experiment of crossing in front of the other car,, when to remain where he was and await its crossing would result in absolute safety.
    3. Same—Evidence—Expert witness—Inspection op cars.
    In this action the railroad crossing the line on which plaintiff was a passenger was made a co-defendant, plaintiff claiming- that it had insufficiently inspected the running gear of the car which collided with one upon which, he was riding. A witness swore that the examination of the cars testified to have been made by said railroad, that of getting down on the hands and knees of the examiner and looking at the gear, would not reveal a latent, flaw, and, upon cross-examination, that striking with a hammer would reveal such a defect. He was then allowed to testify that this was not an adequate way for the examination of the gear, although an objection was. made to the question as calling for a conclusion of the witness. The witness was then asked whether this sort of examination as described was a. proper and adequate examination, and after objection and exception, was allowed to answer that it was not. Held, error; that the objection was-specific enough as calling for the opinion of the witness upon a non-expert subject and should have been sustained.
    3. Same.
    Plaintiff was not a passenger of the railroad in question, and whether its-inspection of said car on the morning of the accident fullfilled the duty incumbent upon it toward third parties was, under the facts in this case, a question for the jury alone.
    Appeal from a judgment of the New York superior court,, general term, affirming judgment in favor of plaintiff against both defendant^ entered on verdict of jury.

      Charles M Miller and Payson Merrill, for app’lts; G. Washbourne Smith, for resp’t

       Reversing, in part, 39 St. Rep., 370.

   Peckham, J.

There was ample evidence to submit to the jury upon the question of the negligence of the driver of the Second avenue car. He was driving south, down the avenue, at the ordinary rate of speed, some six miles an hour. The track of the Houston Street Railroad Company, laid through Thirty-sixth street, crosses Second aveue, and the cars in Thirty-sixth street run only from west to east

Upon the part of the plaintiff it was shown by a witness who had made the measurements, that when the Second avenue car was sixty-five feet north of the north rail of the track of the Thirty-sixth street road he could see seventy-four feet west of the intersection of the two sets of tracks, and when forty feet north he could see 140 feet west, and when thirty-one feet north, he could see west to Third avenue.

He knew that cars were liable to come" from the west at any time and it would be a question for the jury whether he ought not under such circumstances to so reduce the speed of his horses as to have them and his car under immediate control in case of any ■exigency requiring him to check instantly the speed of the car.

It would seem to be a fair question for a jury to determine whether the driver of a horse car is not guilty of negligence in approaching the crossing of another railroad track at a rate of speed which would not enable him to stop his car almost instantly upon discovering another car approaching on such track. And if he do approach at such a slackened rate of speed, it would also be a question for the jury whether he was not guilty of negligent ■conduct in attempting the experiment of crossing in front of the ■other car, when to remain where he was and await its crossing would result in absolute safety.

The driver of the Second avenue car testified that he did not see the approach of the other car until his horses were almost upon the track to be crossed. The evidence 'on the part of the plaintiff shows that if he had looked he would have seen the car much earlier. It is not claimed he must look only in one direction, or that he must look first to the west. But at some point ■of time when looking would have disclosed the presence of the other car he ought to have looked, and his rate of speed should :at that time have been such that, if it appeared in the slightest degree dangerous to go ahead, he would have been able to stop and permit the other car to pass his own tracks in safety before himself venturing to cross the other tracks. It may very well be that after the driver of the Second avenue car discovered the other car approaching he did all he could to avoid the accident, considering his nearness to the tracks and the rate of speed at which he was going. Upon the evidence, it was at least a fair question for •the jury to say whether the driver of the Second avenue car was not negligent in not sooner seeing the other car, or in driving so fast that, when he did discover it, the best thing to be done was to ■endeavor to first pass the other tracks by increasing still more his rate of speed. The lives and limbs of passengers should not be hazarded by such a practice.

We think there was no error in submitting to the jury the ■question of the negligence of the Second Avenue Company. If a party by his own negligence has placed himself in a situation of peril, and being called upon in a sudden exigency to act, mistakes his best course through an error in judgment, he is not thereby relieved. He is not in such ease held for his error in judgment in failing to adopt the best means of escaping from a sudden ■peril, but he is liable for the original negligence which placed him in such peril, provided .that negligence appreciably contributed to the happening of the accident.

The judgment as to the Second Avenue Company defendant must be affirmed, with costs.

As to the Houston Street Company, defendant, other considerations are involved.

One charge of negligence against this defendant consisted in an alleged insufficient inspection of the running gear of the defendant’s car. The Houston street company, defendant had proved how the inspection was made, and claimed it was sufficient, and that the reason the difficulty in the iron was not discovered was-because it was a latent defect or flaw, in regard to. which no inspection would reveal the defect, and even if some kind of an inspection might have revealed it, the inspection as proved was in fact sufficient: In order to show negligence on the part of this company defendant, and to shift the charge from its own shoulders, the Second avenue road called a witness who swore that the examination of the cars testified to by the Houston street company defendant, would not reveal a latent flaw. The examination spoken of was by getting down on the hands and knees of the examiner and looking at the gear underneath the car. Upon the cross-examination by the plaintiff the witness said that striking the iron with a hammer and sounding it and examining it. across with a hammer would reveal such a defect as existed in this iron. It was also claimed that the inspection proved was not. such as was generally in use by railroad companies in November, 1888, prior to this accident

The witness was then asked the question whether that was an adequate way for the examination of these rods. This was objected to as calling for the conclusion of the witness. The objection was overruled and the defendant excepted. The witness answered that it was not. Continuing the examination the witness was asked whether this sort of examination as described was. a proper and adequate examination, and after objection and exception he answered it was not. It is now contended that the objection was not specific enough. Considering the objection already made to the first question and those made to this (the-whole being part of one subject), we think the objection was specific enough to raise the question of the admissibility of the evidence as calling for the opinion of the witness upon a non-expert, subject.

We think the objection should have been sustained. The-witness had already pronounced his opinion upon those facts-which were of a nature to permit of the introduction of expert, evidence, and the two questions above stated called for an opinion upon the very point which was at issue, viz. :■ the sufficiency of the inspection, and the decision of that fact depended upon additional considerations. This decision put the witness in the place of the jury and allowed him to determine whether the defendant had or had not made an adequate inspection. That was not the province of an expert witness upon the question then in issue. It is wholly different from asking an expert witness, whether a vessel was properly loaded. Stating facts showing how it was loaded would not enable a non-expert to say whether such loading was proper or improper. That fact could only be proved by opinions of those conversant with such matters and such an opinion could- not be formed by one who was not an expert by-evidence as to the manner of loading.

The rule of liability requires _ a carrier of passengers to exercise the greatest diligence to secure them safe transportation. But the carrier is not an insurer of their safety. The plaintiff was not a passenger of the Houston street company and hence the high degree of vigilance demanded of a carrier was not demanded in this case. Whether the inspection which the defendant proved was made of this car on the morning of and preceding the acci•dent fulfilled the duty incumbent upon it towards third parties, was under the facts in this case a question for the jury alone. It might be that the inspection actually was insufficient to detect the particular flaw in the iron which the defendant gave evidence ■existed therein. Conceding such fact, it did not follow as a legal -conclusion that the inspection was not adequate under all the circumstances to amount to a performance of the duty which the defendant owed to others than its passengers. To decide that •question involved a consideration of some other matters, among which are the following appearing in the evidence: the brake rod had been manufactured by a proper and skillful person ; it had been made out of first class material, possibly not the best iron in the world, but iron that was regarded as entirely fit for its proposed use; it had been in actual use for a few months and had fully answered all the requirements of its position; the ordinary and average time for the use of such a rod was several years; it was inspected on the morning in question by a man who, so far as appears, was competent for' the duty and who looked along its length and got down on his hands and knees for that purpose; the brake itself was tested by being wound up several times and the shoes were seen to come together and clasp the wheels as tight as was necessary; the company had been,organized since 1874, and during the whole of that time no fracture of a brake rod had occurred, and of course no accident had resulted therefrom; the grades upon the route were for the most part nearly level; to make a daily inspection of the hundreds of cars belonging to the company, which were in actual ■daily use, such as was spoken of by one of the witnesses, viz., hauling each car over a pit and having a man go under it and examine the whole length of the brake chains and rods with a hammer in the most minute and painstaking manner, might be, and probably was, practically impossible for want of time in which to accomplish it, and it does not appear that any such kind of inspection was actually made with regard to the cars of any company which were in daily use, and which were not sent in the shops for repairs; and,, finally, the more or less remote probability ■of any serious accident following as a result from the fracture of a brake rod or chain. All these circumstances, and perhaps others not mentioned, were proper to be taken into account by the jury before arriving at a decision of the question whether the inspections which the defendant made were or were not adequate as a discharge of the duty it owed third parties. Yet upon a question which involved, among others, such considerations as these, the witness was allowed to give his opinion. It is clear that the question called for an opinion upon many matters which were not remotely connected with science, skill or particular knowledge not-in the possession of the average citizen, but, on the contrary, it asked for a conclusion of the witness upon a mass of facts and circumstances not of a nature to require or permit expert evidence, and which it was the peculiar and exclusive province of the jury to weigh, and deduce the appropriate inferences therefrom.

I have found no case, and the counsel for the plaintiff has cited none, which holds that a witness under such a state of facts may be permitted to place himself in the position of the j ury, and,, drawing his own inferences from many facts which are not of an expert nature, determine the very question which is for the jury alone to decide.

The counsel for plaintiff now insists that the defendant was-not harmed, because from certain other facts testified to by the witness it was clear that no adequate inspection was made. As-already stated, that was a question for the jury. ‘ The facts testified to by the witness were in no particular connected with the-facts above alluded to, and the inference to be drawn from the one set of facts might very possibly be altered by a consideration of the other set above stated. The question as to the sufficiency of' the inspection was one of the vital issues in the case. We are by no méans assured that the evidence did not do great harm and we-cannot therefore overlook the error of its admission.'

We must therefore reverse the judgment as against the Houston street defendant and grant a new trial, with costs to abide the event, while as to the Second avenue defendant the judgment, must be affirmed, .with costs.

All concur.


author: Earl, Ch. J.

text:
    Charlotte P. Robbins, Resp’t, v. Eliza T. Robbins, App’lt.

      (Court of Appeals,

      Filed April 26, 1892.)

    Malicious prosecution — Dismissal of prisoner — When proceedinsTERMINATED.
    Where a poor and helpless woman is arrested and the police justice informs her before he makes his final decision, that he is inclined to hold her-to bail and she, being friendless and unable to furnish bail, promises good, behavior in the future if he will discharge her, and then he enters a discharge, it is such a termination of the criminal proceedings as to furnish, the condition precedent to maintaining an action for malicious prosecution if she can show that the criminal proceedings were instituted maliciously and without probable cause.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment on verdict and order denying motion for new trial. *

      Norman A. Lawlor, for app’lt; Alfred A. Gardner, for resp’t.

       Affirming 39 St. Rep., 453.

   Earl, Ch. J.

This is an action for malicious prosecution-against the defendant for causing the arrest and imprisonment of the plaintiff upon a criminal charge.

It cannot well be disputed that the evidence given by the; plaintiff as to want of probable cause and malice in instituting the-criminal proceeding by the defendant was conflicting, and was. therefore properly submitted to the jury. The only seripus question is whether the criminal proceeding was sufficiently terminated to enable the plaintiff to maintain this action. Upon that question there was a difference of opinion in the court below.

The plaintiff was arrested in the city of Mew York upon a warrant issued by a police justice, and after being detained over night at the station house, she was taken before the police justice,, and it is undisputed that after hearing the evidence adduced against her he finally discharged her; and if that were all, it is. entirely clear that there was such a termination of the criminal; proceeding as enabled her to maintain this action. It is, however,., claimed on the part of the defendant that the evidence shows that the police justice was inclined to hold the plaintiff to bail, but. that upon her representation that she had no friends, and could not give bail, and upon her promise not to further molest the' complainant, he discharged her; and the defendant contends that, a discharge under such circumstances is not sufficient to authorize' the maintenance of this action. While there is a vast preponderance of evidence that the discharge was made under the circumstances mentioned, yet we think that there was some evidence tending to show that the discharge by the police justice was made because he did not find sufficient evidence to hold the plaintiff. There is some oral evidence to that effect, and the police justice, endorsed upon the warrant and papers annexed thereto: “ Discharged on examination.” The trial of this action took place-about four years after the discharge, and the memory of the police justice was evidently imperfect and uncertain as to what took place at the time of the discharge. Upon the whole evidence,, whether the discharge was absolute, and made after an examination into the case by the police justice, as claimed by the plaintiff, or whether it was due to favor to her because she could not get, bail, and upon her promise of good behavior, was a question off fact for the jury.

But we think this judgment would have,to-be affirmed even if we assumed that the facts were precisely as claimed by the defendant, to wit: that after the examination of the plaintiff the police justice was inclined to hold her to bail, but finally discharged her on her promise of good behavior in the future. Nevertheless the criminal proceeding was terminated. The rule requiring that before an action for malicious prosecution can be maintained the plaintiff is bound to show a termination of the criminal proceeding, has for its foundation that it cannot be known that the prosecution was unjust or unfounded until it is terminated, and if the action for malicious prosecution were allowed to-be maintained before the termination of the criminal proceeding the plaintiff might be found guilty in that proceeding, and yet maintain her action for malicious prosecution on the ground that she was not guilty, and that the defendant had no probable cause to believe her guilty; and thus there might be two conflicting determinations as to the same transaction. The law so far encourages criminal complaints as to protect the complainant against a civil action for damages in case the criminal proceeding fairly conducted results in the conviction of the person charged with ■crime. Such conviction fairly obtained, without fraud or conspiracy, is held to be conclusive evidence of probable cause. But where the criminal proceeding is terminated favorably to the accused or without his conviction, so that there can be no further proceeding upon the complaint or indictment, and no further prosecution of the alleged offense without the commencement of a new proceeding, then there has been a sufficient termination thereof to enable him, proving the other requisite facts, to maintain an action for a malicious prosecution. It cannot in réason make any difference how the criminal prosecution is terminated provided it is terminated and at an end.

Take a case like this : A poor and helpless woman is arrested and the police justice informs her before he makes his final dercision that he is inclined to hold her to bail, and she being friendless and unable to furnish bail promises good behavior in the future if he will discharge her, and then he enters a discharge. What reason can there be for holding in such a case, if she can show that the criminal proceeding was instituted maliciously and without probable cause, that she may not maintain her action for malicious prosecution ? The circumstances under which she was discharged may furnish competent evidence upon the issue of probable cause and malice, and on the question of damages. But proof that the discharge was made under such circumstances cannot upon principle furnish an absolute bar to the action. The motive of the judge or justice in making the discharge is wholly immaterial. The real foundation of the action is the malicious prosecution without probable cause, and the termination of the criminal proceeding is a mere technical matter in no way concerning the merits of the action and is a mere condition, precedent to its maintenance. Therefore, any termination such as we have above mentioned, as a general rule, furnishes the condition precedent.

These views we think are amply sustained by .the anthorities found in the brief of respondent’s counsel.

The judgment should be affirmed, with costs.

All concur.


author: Finch, J.

text:
    Thomas F. Oakes, App’lt, v. Edward F. De Lancey, Resp’t.

      (Court of Appeals,

      Filed April 26, 1892.)

    Deed—Description—“ shore.”
    A deed described lands as bounded by a line running to a point on the shore of Long Island Sound, “ thence running along said shore and Sound as the same bend and turn easterly and then southerly to their intersection with, etc.” The first course, if run from the fixed starting point in obedience to the distance given, extended to low water mark, and in order to make out the quantity of land named in the deed the strip between high and low water mark had to be included. Held, that the deed included said strip of land lying between high and low water mark.

      Appeal from judgment of the New York superior court, general term, affirming judgment in favor of defendant.

      Artemas H. Holmes, for app’lt; Martin J. Keogh, for resp’t.

       Affirming 40 St. Rep., 70.

   Finch, J.

The only question raised by this appeal is over the true construction of the deed given by the defendant. The-premises were described as “ Yergemere,” and bounded on the north and east by the waters of Long Island sound; and the dispute is whether the description of the conveyance includes or excludes the strip of land on the water fronts between high and low water, and which constitutes the shore. The description is thus: phrased: “ Beginning at a point in the center line of an avenue sixty feet wide, known as De Lancey avenue, which point bears: south forty-two degrees and forty-seven minutes west thirty feet from the point of intersection of the division line between the property hereby conveyed and the land conveyed by the late-Peter John De Lancey of Geneva, New York, to James J. Burnett, with the north-easterly line of said De Lancey avenue, and thence running along said division line north forty-two degrees and forty-seven minutes east about eight hundred and sixty-five feet to a¿ point on the shore of Long Island sound ; thence running along-said shore and sound as the same bend and turn easterly and them Southerly to their intersection with the center line of De Lancey avenue aforesaid, and thence running along said central line of" said De Lancey avenue forty-nine degrees and fifty-five minutes west about twelve hundred and eighty-eight feet to the point or-place of beginning, containing twenty-two acres and fifty-seven hundredths of an acre of land, be the same more or less.”

It will be observed that the starting point of this description is fixed with accuracy and care, and the surveys show that the first, course, if run in obedience to the distance given, will extend to-low water mark, and that the last course to obey the same requirement of distance must start at low water mark on the easterly water front. The surveys also show that the strip between high and low water must be included in order to correspond with the-quantity of land which the deed purports to convey. The courses and distances and the quantity of land carry the description to-low water mark and can only be satisfied by including the area, of the shore.

But the appellant, relying upon the rule that fixed monuments, control and distances and quantities must yield to their safer and superior authority, insists that the shore is such a monument, and by the shore is always meant the line' of high water when the-boundary is the sea. That is undoubtedly true and would be decisive if the first course ran simply to the shore. But it does-not. It goes not.to the shore, but “to a point on the shore.” That point may be anywhere upon the strip lying between high and low water, and where it is must be determined and can only be determined by the sole direction furnished, which is the distance. That distance fixes the point at the outer or low waterline of the shore, and so, and only so, is the description satisfied. The first course ends at “ a point on the shore,” and about 865-ieet from "the fixed starting point. Having found this “ point on the shore,’’ we are required to go “ along said shore and sound ” •easterly and then southerly. Starting thus on the line of low water, we must follow that line. The words are not only along •the shore, but also along the sound, and a line starting at low water, and then running away from it on a diagonal to the line ■of high water, and thence easterly on that line, is neither described nor intended. It would fail again when the return course to the starting point is reached. That calls for about 1,288 feet, and •can only be satisfied by beginning the course at low water mark. To these indications of the intent must be added the quantity of land stated to be conveyed, which requires the inclusion of the ■shore and is seriously defective if that be excluded. The use of the words “ more or less,” in connection with the quantity, and the use of the word “ about ” as qualifying the distance,, do not •alter the conclusion to be drawn. They are words of safety and precaution and intended to cover some slight or unimportant inaccuracy, and while enabling an adjustment to the imperative ■demands of fixed monuments, do not weaken or destroy the indications of distance and quantity when no other guides are furnished. Belknap v. Sealey, 14 N. Y., 143.

The appellant further insists that the title to the shore is presumably in. the state. That, with us, is the common law rule, but does not exclude the possibility of title in the grantor derived from the sovereign or obtained by prescription. There is no question of title in the case, and we know nothing about it. Certainly we ought not ■ to presume a want of title in the grantor in order to construe a description which implies such title.

There is nothing in the case of Storer v. Freeman, 6 Mass., 435, upon which the appellant mainly relies, adverse to our conclusion. In that case the description in the first deed ran “to the shore,” which was held to be the line of high water. In the second deed the course ended at a heap of stones “ at the shore,” and ran thence “by the shore." That heap of stones at “William Elwell’s corner” was treated as a possible monument, which, if found at the line of low water, would carry the description there, and thence “by the shore,” would follow the line of low water. The point on the shore, or at the shore, fixed in that case át low water by a monument in’the form of a heap of stones at a corner, is fixed here without a monument, by the sole remaining guides, which are distance and quantity, at a point on the shore at low water mark.

We think the judgment is right, and should be affirmed, witii costs.

All concur.


author: Lawrence, J.

text:
    Lillian Burleigh Reid, Ex’rx, Pl’ff, v. The New York, New Haven & Hartford Railroad Co., Def't.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Railroad—Negligence.
    Plaintiff's testator left defendant’s train at a station, and continued to his destination, walking on the track. He crossed to the other track to avoid a freight train,, and was struck by another. It appeared that there was no footpath on the side of the tracks, add that the only exit from the station to the highway was through private grounds. Meld, that it could not be said as matter of law that decedent's death was not caused by defendant's negligence in not providing a safe mean? of exit, and that the question of contributory negligence was one for the jury, and that the court did not err in refusing to non-suit.
    '3. Same—Evidence.
    In such case, evidence as to whether there was a footpath, and the custom of walking on the tracks, and as to the maintenance of a ticket agent at the station, and the absence of a flag-man, is admissible, for the purpose of showing the condition of affairs at that place at that time.
    3. Same—Harmless error.
    The admission of hearsay evidence as to the ownership of the path to the highway is not reversible error where there is other competent evidence to show that it led through private property.
    Case containing exceptions ordered to be heard at general term in the first instance.

      jFlamen B. Gaudier and Bgerton L. Winlhrop, Jr., for pl’ff ; JJenry W. Taft, for deft
   Lawrence, J.

This action was brought by the plaintiff to recover the sum of. $5,000 damages, alleged to have been sustained in consequence of the death of her husband, William Johnson Reid, which was averred in the complaint to have been caused by the negligence of the defendant. The jury rendered a verdict in favor of the plaintiff for the amount claimed, and the -court ordered the exceptions to be heard at the general term in the first instance.

It appears that on the 23d of January, • 1889, the plaintiff’s testator was á passenger on defendant’s road, having taken a train which left the Harlem river station shortly before six o’clock, •on his way to Casanova, which is a small station upon the Harlem river branch, within the city of Rew York and near the intersection of the Southern Bouvelard and Bast One Hundred and Bifty-sixth street. It appeared from the evidence that in January, 1889, only about one hundred people used that station during the week, and that the persons so using it desired to go either to the Southern Boulevard, Oak Point or to Springhurst, at which place decedent resided. • There was a board walk which was used by the passengers going to Oak Point, a place below Casanova .station. That walk was built from a point opposite the station, running about 1,000 feet to a highway leading to Oak Point, which was known as Leggett’s lane, and those going to the Southern Boulevard used a pathway, reached through a turnstile in a fence at the side of the station, leading across an open field to Leggett’s lane. There was no foot path on the side of the track from Casanova to Springhurst crossing. The path across the meadow, leading to Leggett’s lane and thence to the boulevard, was shown to be through private property, and there was a sign up on the meadow which read, “ Private grounds; trespassers will be prosecuted according to law.” The decedent, on .arriving at the station at Casanova, proceeded to walk up the track of the railroad, which was the custom of the residents of Springhurst, and, a few minutes after the train which carried him up to Casanova had gone by, a freight train came up behind, compelling him to cross over to the down track. A moment later a down freight, which was not running on schedule time,, struck him on the side as he was in the act of stepping off the-outer rail of the down track, inflicting injuries upon him which caused his death in a few minutes.

The defendant insists that a new trial should be ordered: First, upon the exceptions to the denial of the motion to dismiss the complaint; second, upon the exceptions to the judge’s charge and. to his refusal to charge certain propositions submitted by the defendant, and third, upon some of the exceptions to the ruling of the court upon the admission and exclusion of evidence.

At the end of the evidence a motion was made by the defendant to dismiss the complaint: First, on'the ground that the plaintiff had failed to show that the defendant was guilty of any actionable negligence, and second, because no reasonable inference-was possible from the evidence that the plaintiff’s testator was; free from contributory negligence.

Our examination of the evidence leads us to the conclusion that no error was committed by the learnéd justice who tried the case in refusing to take the case away from the jury upon that motion. There certainly was evidence in the case from which the inference might reasonably be drawn that the railroad company was negligent is not furnishing for its passengers leaving trains at Casanova station a safe and convenient means of reaching the highway.

It was held in Hoffman v. New York Central & Hudson R. R. R. Co., 75 N. Y., 606, that it was the defendant’s duty to furnish a .safe and convenient passage from its depot to the highway, and that there was ground for a finding that in consequence of its neglect to perform that duty passengers would need to go along the tracks to pass conveniently from the depot' to the highway, and if they were then exposed to injury it was because of defendant’s neglect, and a non-suit under those circumstances was held' to have been an error.

The court cites with approval the case of Hurlbert v. N. Y. C. R. R. Co., 40 N. Y., 145, in which it was held, “ wherever passengers are accustomed to be received upon a train, whether at the station house, at the water tank, or elsewhere, railroad companies are bound to keep in a safe condition for transit the ordinary space in which passengers go to and from the train, and the latter have the right to assume. that the ground adjacent to the cars, within the limits in which persons necessarily and naturally go to and from them, admits of their getting safely out and in,, even in a dark night.”

In the case at bar the evidence showed, or tended to show, that the railroad company did not provide a proper, safe and convenient passage from its depot to the highway at Springhurst. The exit from, the station through private grounds, to the Oak Point road, and', from thence to the boulevard, was one which, it would appear from the evidence, the passengers had no right to use, and which they would become trespassers by using. At all events, under the authorities, upon such a state of facts, it was a question for the jury to say whether that mode of exit was safe and conveni-ent. And we cannot say, as matter of law, upon that, the death of the plaintiff’s testator was not caused by the negligence of the ■defendant. Whether there was any contributory negligence on the part of the decedent was a question which we think was prop-erly submitted to the jury., There was testimony showing that for many years it had been the practice and custom of passengers who were residents of Springhurst to leave the train at Casanova •station and walk up the track to the Springhurst crossing. That practice had existed, so long and was so notorious that the jury may well have found a license on the part of the defendant to -.passengers to make such use of their tracks. Swift v. S. I. R. T. R. R. Co., 123 N. Y., 646; 33 St. Rep., 604, and cases cited.

IE the plaintiff’s testator was justified in walking up the track io the Springhurst crossing, on the conflicting evidence before us we cannot say that the trial court erred in submitting that question to the jury. Remer v. L. I. R. R. Co., 48 Hun, 352; 15 St. Rep., 884; affirmed 113 N. Y., 669; 23 St. Rep., 994.

Several objections were raised to the admission of evidence by the defendant, some of which we will proceed to notice. Witnesses were allowed to testify as to -whether or not there was a foot path along the tracks between Casanova station and Springhurst crossing, also as to the custom of walking on the tracks, and as to the maintenance of a ticket agent at Casanova station •and also as to the absence of a flagman at the crossing. We think the testimony was properly allowed for the purpose of showing the exact condition of affairs at that place at that time; and although as matter of law it is not the duty of a railroad company to place a flagman at street crossings, to warn travelers, the court -of appeals has held that it is proper and- has been the common practice to receive this class of evidence in negligence cases. See remarks of Earl, J., in McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y., 522. Besides, the learned judge, in his charge to the jury, distinctly charged them that as matter of law there was no obligation on the part of the company to keep a flagman there, and distinctly declined to charge the jury that they might take into consideration the question as to whether the accident could have been avoided if a flagman had been at that station; also, that if the jury find that if the flagman had been stationed there, Mr. Eeid would have sufficient warning to save his life, and that it was for them to have a flagman there; but the court replied “Ho, it is for the jury to say whether sufficient care and protection was given.” We think that if any error was committed in the admission of the evidence in regard to the absence of a flagman, that that error was cured by the subsequent charge of the judge. Holmes v. Moffat, 120 N.Y., 159; 30 St. Rep., 779.

Even if the question as to what the station master at Casanova said to passengers on trains alighting at Casanova, and inquiring the way to Springhurst, was improperly admitted, no harm could possibly .have been done to the defendant by the reply of the witness, “ Nobody ever asked me.” Pfeiffer v. Campbell, 111 N.Y., 681; 20 St. Rep., 482.

Numerous other objections were taken to'the admission of evidence, but they generally relate to the habit of passengers of walking upon the track, as to the absence of a pathway and the-general character of the lay of the land, all which evidence we think was competent. The witness Nunnery, who had been testifying as to the lane which ran into tjie Southern Boulevard, and as to the path leading to the lane which he had designated as-private ground, was asked the question how he knew that it was private ground, to which he replied, “ The man it belongs to-never let anything be opened through there.” He was further-asked, You don’t know of your own knowledge who owns-that land ? ” He answered No, sir; I only testify as to-the ownership of it from hearsay.” Thereupon, the defendant’s-counsel moved to strike out all his testimony on the subject, which motion was denied and exception taken. Inasmuch as-there was other evidence tending to show that the pathway led through private property, and no affirmative evidence that the defendant had a right to the use thereof for the purpose of egress-from their station, the refusal of the court to strike it out could not have harmed the defendant, the evidence being cumulative. The charge of the judge correctly stated the law, and none of the exceptions taken to the refusal to charge strike us as being well founded, in view of the fact that the law had already been correctly laid down by the presiding justice. We are, therefore; of the opinion that the case was fully and fairly submitted to the jury, both upon the law and upon the facts, that the exceptions raised by the defendant should be overruled, and that the plaintiff is entitled to judgment upon the verdict, with costs and disbursements.

O’Brien, J., concurs; Van Brunt, P. J., concurs in the-result.


text:
    William Y. Mortimer et al., Ex’rs, v. The Metropolitan Elevated Railway Co. et al., App’lts. William Y. Mortimer et al., Ex’rs, Resp’ts, v. The New York Elevated Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Railroad—Elevated—Damages.
    In an action against an elevated railroad damages up to the time of the-trial may he recovered.
    3. Same—Leased premises.
    The owner of the ¡premises may recover in such- action for injuries in-. dieted during the period when they were leased.
    Appeals by the defendants from judgments rendered at the' special term in favor of plaintiffs.

      Davies, Short & Townsend and Edward B. Thomas, for app’lts ;. John IF. Pirsson, John E. Parsons and J. Alex. Beall, for resp’ts.
   Lawrence, J.

The learned justice who tried this case at special term found that the construction and operation of the defendants’ railways in front of the plaintiffs’ premises, both in the Bowery and Division street, have most seriously impaired the easements of light and air, appurtenant to those premises. In this conclusion as matter of fact, after examining the evidence, we entirely concur. It is said, however, that the justice erred in fixing both the past damages and the compensation to be paid by the defendants.

Our review of the evidence convinces us that no such error was committed. See opinion of Patterson, J., at pp. 60 and 61, case.

The evidence which was before the trial court was carefully considered, and we see no reason for disturbing the judgment which was reached.

It does not appear that any error was committed in reference to determining the damages to which the plaintiffs were entitled, and the case of Cornell v. The Manhattan Railway Co., 37 St. Rep., 624, when examined, does not sustain the appellants’ contention. In that case it was not decided that a plaintiff in an action of this character was not entitled to recover damages up to the time of the trial. There were two inconsistent findings of fact in the case, and as under one of those findings it appeared that damages had been or could have been awarded for a period of more than six years from the commencement of the action, and as the court were of the opinion that the damages were incapable of division or reduction, the judgment in the plaintiff’s favor was reversed and a new trial ordered. Ho such question is presented in this case.

The damages here allowed for rental value are for the depreciation between July 28, 1887, and August, 1890, a period of about three years.

A further point is made that the court below erred in refusing to consider the benefits that had accrued from the construction of the railways, but we find no error in that respect The court-found, as matter of fact, that there were no such benefits proven, and therefore refused to find the finding in that respect which was tendered by the defendants, and by that refusal necessarily passed upon that question. The point that the plaintiffs are riot entitled to recover damages for injuries inflicted during the period embraced in the lease, has already been passed upon adversely to the appellants in the case of Hine v. New York Elevated R. R. Co., 37 St. Rep., 606.

We are therefore of the opinion that each of the cases was properly decided by the special term, and that the judgments there rendered should be affirmed, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Charles Wood, App’lt, v. William Mitchell et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Judgment—Fraud.
    Where the judgments confessed were founded on just and legal' debts, they are not rendered fraudulent by the fact that they were confessed pending an extension of time to answer obtained by defendants” attorneys. Under such circumstances the action of the attorneys cannot be held to be a fraud on the plaintiff in the action in which the extension was obtained.
    Appeal from judgment dismissing the complaint.
    Action to set aside certain judgments confessed by defendant. Mitchell on the ground of fraud.
    The following opinion was delivered at special term
    Barrett, J.—I cannot accede to the proposition that confessions of judgment, given for honest debts, are to be set aside merely because they were so given after the plaintiff had extended, the defendant’s time to answer in the action then pending. Mitchell had a right to prefer these creditors, and so long as they were-not parties to a fraud, their vested rights cannot be taken from, them. But it was not a fraud, even upon Mitchell’s part, to. pay or secure his honest debts, and though he obtained the extension for that specific purpose, the confessions were but the exercise of a legal right. Whether the time necessary to prepare and execute the confessions was obtained by judicial order, by consent or by interposing a frivolous answer, is immaterial. There was here no agreement, express or implied, that, pending the extended time, the existing status should not be changed by any act of the defendant. The case, therefore, is not analogous to Jaques v. Greenwood, 12 Abb., 232. It is more like Hauselt v. Vitmar, 2 Abb. N. C., 222, affirmed 76 N. Y., 630, where Jaques v. Greenwood was analyzed and shown to rest upon the fact of an express agreement that no assignment would be made pending the stay of proceedings. There judgment had actually been entered, and, by means of the stay secured upon the agreement, that no assignment would be made, the creditor was deprived of the benefit of a levy. The other point made upon the plaintiff’s behalf is even less tenable. There is nothing whatever in the facts testified to by the plaintiff to warrant his claim of an equitable lien upon or assignment of any portion of what was coming to Mitchell from the United States. There was nothing in the nature of an appropriation of the funds, nothing which would have authorized the United States to pay directly to the plaintiff. There was no assignment, pledge or order. Mitchell merely promised to pay when he was in funds from his contract with the government, and this promise was purely personal. There should be judgment for the defendants, dismissing the complaint upon the merits, with costs to the defendants Patterson Brothers, Theodore Smith and Henry Smith, jointly, to the defendants Hobby and Doody, and to the defendant E. B. James.

      James O. Bergen, for app’lt; Everett D. Barlow, for resp’ts,
   Lawrence, J.

In this case there is nothing which shows that the judgments were not founded upon just and legal debts, due from Mitchell to the parties in whose favor the judgments were entered.

Under such circumstances it cannot be held that the action of the respondents’attorneys, in obtaining an extension of time to answer, was a fraud upon the plaintiff entitling him to the relief which he seeks in this action.

The opinion of the learned justice who tried the case fully covers it, and it therefore follows that the judgment in the defendants’ favor should be affirmed, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


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

text:
    The People ex rel. Newbold T. Lawrence, App’lt, v. Edward P. Barker et al., Com’rs, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

      1. Taxes—Personal—Residence.
    A person who has a residence elsewhere, where he votes and pays taxes, is not liable to taxation in New York city because he happens to be there on a visit on the second Monday in January.
    2. Same.
    While a person may have two residences, one in the city and one in the country, the place where his family lives, where he stays the greater part of the time, where he votes and where he is assessed for personal taxes, is his residence for purposes of taxation.
    Appeal from order reducing and confirming taxation of personal estate.
    The facts appear in the opinion of the special term as follows:
    Andrews, J.—The relator’s place of business on the second Monday of January, 1891, was, and for many years prior to that date had been, in the city of Hew York For some years prior to 1887 he resided at Lawrence, in the town of Hempstead, Long Island, during the summer months and in the city of Hew York during the winter months, and as his place of business was in. that city he was, during those years, undoubtedly taxable there. In June, 1887, he purchased the interest of his sisters in a house at Lawrence, which had come to him and them under the will of their deceased father, and commenced to alter it for his own use. He married in December, 1887, and moved into said house in September, 1888, and has continuously lived there ever since, except for short periods of time during the winter months, when he and his wife have been at his mother’s house in Hew York He did not pay for the board of himself or his wife or contribute to the expenses of his mother’s household while they were members of it. He has voted for seven years last past in .the town of Hempstead and was assessed there for the purpose of taxation in the year 1890. In the winters of 1889 and 1890 the relator and his wife were at his mother’s house for the periods of six and four weeks respectively. In December, 1890, shortly before Christmas, the relator and his wife came to his mother’s house in Hew York city, expecting to stay there about six weeks, but they were detained there by his sickness until the first of March, when they returned to Lawrence.
    Under our statutes every person is to be assessed for the' purpose of taxation in the town or ward where he resides when the assessment is made for all personal estate owned by him ; and under the act of March 25, 1850, if any person resides in two or more towns or counties during any year in which taxes may be levied, his residence, for such purpose, is deemed to be in the town or county where his principal business is transacted. Upon the undisputed facts of this case there can be no doubt that, since 1887, the relator’s domicil, or home, has been at Lawrence, but the question whether he can be deemed to have resided in New York on the second Monday of January, 1891,, seems to me to be a close and difficult one. The books are full of cases as to what constitutes residence with reference to eligibility to office, the right to vote, liability to taxation, liability of person to arrest and property to attachment, and jurisdiction in actions for divorce.
    It has frequently been held that facts which constitute a person a resident of a particular locality for one purpose do not make him a resident for some other purposes; many of the decisions turn upon the construction of local statutes, and where the facts are substantially the same there is great conflict of opinion as to what constitutes residence. Many courts and judges have attempted to define “residence,” but the difficulty about such definitions is that they generally require further "definitions to make their meaning clear and certain. The consequence is that it is almost impossible to deduce from the cases a rule of law by which it can be determined in any particular case whether, upon the facts proved, a person is or is not a resident. A leading case in this state, and one which has been' frequently cited, is Frost v. Brisbin, 19 Wend., 11. In that case it was said: “ There must be a settled, fixed abode, an intention to remain permanently at least for a time, for business or other purposes, to constitute a residence, within the legal meaning of the term.” That definition was cited and followed in Bartlett v. City of New York, 5 Sandf., 44. In that case it appeared that the plaintiff's domicil or home was in Westchester county, but because he took and occupied apartments for the winter in a hotel in the city of New York (though with the intent to continue to be a resident of Westchester county), it was held that he was properly assessed in New York city.
    This case was followed in Douglas v. The Mayor, 2 Duer. 110, where the facts were similar to the extent that the plaintiff lived in New York city in the winter and spring, and in the country in the summer and autumn. And both the above cases were cited and followed in People v. Commissioners, 18 St. Rep., 748, upon, a similar state of facts. The definition of “residence” given in Frost v. Brisbin was found to be sufficient for the solution of the questions presented in the above cited cases, but when it is sought to apply it to the case at bar the conclusion which should be drawn is not so obvious. Under these decisions it does not follow that because the relator owned a house in Lawrence, which he occupied for most of the years, had voted for seven years in the town of Hempstead, and was assessed and paid taxes in Lawrence in the year 1890, he was not taxable in Hew York city. But what effect should be given to the fact that the relator and his wife came to Hew York just before Christmas, intending to stay only six weeks, and that their actual stay, including the time during which they could not leave on account of the relator’s sickness, was only a little over two months, and the fact that they had no house, apartments or establishment of their own, and were merely the guests of the relator’s mother at her house? In all the cases above cited the persons taxed were living in the city of Hew York on the second Monday of January, but no attempt was made by the court in either case to determine just how long before or after that date a person, who is there on that day, must remain in order to be liable to taxation there. It is difficult, perhaps impossible, to lay down any exact rule on this point, but if the relator had owned or hired a house or apartments, and had maintained an establishment of his own, I do not see how the case at bar could be distinguished from the cases above cited, merely because he and his wife came with the intention of staying but six weeks, and did actually stay but a little more than two months. They would have had a “ fixed, settled abode ” for over two months, and what distinction can be drawn between a “fixed, settled abode ” for two months and one for three, four or five months ? They would also have had an “intention to remain permanently at least for a time,” and what distinction can be drawn between an intention to remain “ permanently ” for at least six weeks and an intention to remain “permanently ” for double that time?
    In the next place, if the relator and his wife had lived for six months, or all the year around, as guests of his mother’s, in the latter’s house in the city of Hew York, or at the mother’s expense, by themselves, in a separate house or apartments, the relator would certainly have been a resident and liable to taxation there; and I do not see how any distinction can be drawn between living in How York city at the expense of the mother for two months and living in that manner for six or twelve months, so far as liability to taxation is concerned.
    Upon the whole case, I have reached the conclusion, though not without considerable doubt and hesitation, that the relator had two residences; that he was residing in the city of Hew York on the second Monday of January, and that, as-his place of business was in that city, he was lawfully assessed there. With regard to the amount of the assessment, it appears that the relator, relying upon his claim for total exemption from taxation, did not present evidence to the tax commissioners as to the amount of his taxable property. Under the circumstances, however, the court has the power and ought to reduce the assessment, because the evidence shows that the relator's taxable property was very much less than $100,000, the amount of the assessment.
    In his sworn petition the relator stated that, upon his applicatian to the tax commissioners, “ he was ready to prove that the value oE his personal estate, not exempt from taxation, over and above his debts, did not exceed $10,000.” And when he was first examined in this proceeding he testified that his personal property “ did not exceed $10,000, over and above his just debts." In view of this evidence, I think that the assessment should be reduced and should be fixed at $10,000, rather than a lower sum, notwithstanding some testimony which the relator gave about his property on a subsequent examination. No costs should be allowed to either party.

      Franklin B. Lord, for app’lt; George S. Coleman, for resp’ts.
   Van Brunt, P. J.

It seems that the relator was a resident of Hempstead, Long Island, and as such resident he paid personal taxes in said town; and it is to be observed that the taxes of 1890 at Hempstead were to be expended in 1891, and the taxes in January, 1891, in New York were for the same year, and thus the relator would be compelled to pay two assessments for taxes in one year. The mere fact that he happened to be on a visit to his mother on the second Monday of January, 1891, did not make him liable for taxation. It is true that a man may have two residences, one in the city and one in the country, but where his family lives, where he stays the greater part of the time, where he votes, and where he is assessed for personal taxes, is certainly his residence for purposes of taxation.

According to the contention of the respondents, if a man came into the city of New York to stay a day or two, and was taken sick and compelled to remain over the second Monday of January in any year he would be liable to taxation in this city. We do not think that any such claim can prevail, and it must if the relator can be held in the case at bar.

The order should be reversed and the assessment vacated, with ten dollars costs and disbursements.

O’Brien, J., concurs.

Patterson, J.

I concur on the ground that it does not conclusively appear that the relator was a resident of the city of New York on the 2d day of January so as to be made liable to taxation here.


author: Van Brunt, P. J.

text:
    The People ex rel. John L. Lawrence, App’lt, v. Edward P. Barker et al., Com’rs, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Taxes—.Personal—Business.
    A person who has no place oí business, sells real estate belonging to the estate of his father, of which he is executor, when he has an opportunity, and is a director of a corporation and attends meetings of the board, does no business within the meaning of the statute.
    Appeal from order reducing and confirming taxation of personal estate.
    The facts appear in the opinion of the special term as follows:
    Andrews, J.—Upon his examination before the tax commissioners, .on February 7, 1891, the relator stated as follows: “ I live in Hew York city from December till May, and from May till December in Lawrence, Long Island.” In his sworn statement, made before one of the tax commissioners on February 18, 1891, he said- •“ In 1890 I came to New York city to live; on the 28th -day of November, 1890. I expect to leave New York city on the 1st day of March, 1891.” It appears from these statements, .and the testimony taken in this proceeding, that the relator had ■two residences, one in New York city and the other at Hempstead, Long Island. He was actually residing in New York city on the second Monday of January, 1891, and was lawfully assessed there, ■unless his principal business was transacted at Hempstead. According to the evidence, the relator does not transact much business anywhere. He has no office at Hempstead and does not transact any business there regularly and continuously. If any .one comes to his house there, and wishes to buy some of the land belonging to his own or his deceased father’s estate, he does all he •can to sell it; but he does not go around trying to get customers. On the other hand, the securities, which he holds as executor, are kept in New York city; his bank account is kept in the Bank of America, in that city, and he is a director in the National Meter Company and attends meetings of that company, during the -winter, in said city. He apparently transacts more business in New York than he does at Hempstead, and the writ must be dismissed, with costs.

      Franldin B. Lord, for app’lt; Geo. S. Coleman, for resp’ts.
   Van Brunt, P. J.

We think that the case of Newbold T. Lawrence decided herewith disposed .of the case at bar. The appellant does no business within the meaning of the statute.

The order should be reversed and the assessment vacated, without costs.

O’Brien and Patterson, JJ., concur.


text:
    August M. Kiep, Resp't, v. The Manhattan Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)
    1. Railroad—Elevated—Noise.
    Although an elevated railroad is liable in an action at law for the wrong done abutting owners by the noise of passing trains, such noise cannot be taken into account as an element of fee damage in an equitable action to restrain its operation.
    3. Same—Findings.
    The mere use by the referee of the words “ permanent maintenance and operation of such road ” in a finding as to fee value does not necessarily include such incidental damages from the use and operation of the road as noise, smoke and cinders.
    Appeal from judgment of the special term, entered upon the decision of referees appointed pursuant to a stipulation made by the parties.
    Action to restrain the maintenance and operation of defendants’ railroad in front of plaintiff’s premises, and for damages.

      The referees refused to find the sixteenth request of defendants, as follows: “ The sum fixed which the defendants must pay in order to obviate the injunction herein should not be greater than the sum necessary to compensate plaintiff for the perpetual maintenance of defendants’ elevated railroad structure, and exclusive of the damages caused, or to be caused, by the running of trains thereon,” and found as follows: “ Twelfth, The defendants intend to permanently maintain and operate the said elevated railroad as now constructed, maintained and operated by them.” “ Fourteenth, The value of the interests and easeménts of the plaintiff in said avenue appurtenant to the premises above described, taken, appropriated and used by defendants in the construction, maintenance and operation of said elevated railroad, and the impairment of the fee value of the plaintiff’s said property in consequence of such taking, appropriation and use, as upon a permanent maintenance and operation of said railroad, as the same was maintained and operated on December 22, 1890, was on said day the sum of $1,200, over and above any benefits resulting to said premises from the construction, maintenance or operation of said railroad and peculiar to said premises.”

      Julien T. Davies and Joseph N. Lord, for app’lts; Henry M At-water, for resp’t.
   Lawrence, J.

On the argument of this appeal the appellants’ counsel waived the objection that error had been committed by the referees in awarding damages on account of injuries inflicted upon the premises in suit for a period of time subsequent to the commencement of the. action, and he rested his appeal solely upon the ground that it was error on the part of the referees to grant an injunction against the futui-e running of trains, and to include damages for any injuries incidental thereto in fixing the sum to be paid as the value of the easement. It is now perfectly well settled that' although an elevated railroad is liable, in an action at law, for the wrong done abutting owners by the noise of passing trains, such noise should not be taken into account as an element of fee damage in actions of this nature. American Bank Note Company v. The N. Y. Elevated R. R. Co., 41 St. Rep., 531.

We fail, however, to discover from the admission of the evidence in this case as to noise, smoke and cinders, that the referees in estimating the amount which the plaintiff should receive as damage to the fee included such damages as arose from the incidental use and operation of the road. The exceptions upon which the appellants rely are based upon the refusal to find the sixteenth proposed conclusion of law of the defendants, taken in connection with the twelfth and fourteenth findings of the referees. Those findings in our opinion do not show that the referees allowed as a part of the damage to the fee value of the plaintiff’s property the injuries incidental to the running of trains. The use of the words, “ permanent maintenance and operation of such road,” do not necessarily include such incidental damages, and it seems to us hypercritical to say that the referees by their findings and their refusal to find, have indicated that such damages were included in the conclusion which they reached, or in the judgment entered thereon.

There is no other question in the case, and we are of opinion, therefore, that the judgment rendered below should be affirmed, with costs and disbursements to the respondent.

Van Brunt, P. J., and O’Brien, J., concur.


author: O’Brien, J. Patterson, J.

text:
    Lucius W. Sawyer, Resp’t, v. James Gordon Bennett et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Bill of fabticijlabs—Libel.
    In an action for libel where the complaint alleges that “many persons have in consequence thereof and still do refuse to employ or trade with this plaintiff,” a motion for a bill of particulars of the names and addresses ■of such persons will not be granted before issue joined in the absence of :an affidavit showing its necessity and that defendant has no knowledge of ■such persons.
    Appeal from order denying motion for a bill of particulars.

      John Townshend, for app’lts ; Fugene Frayer, for resp’t
   O’Brien, J.

This is an appeal from an order denying defend.-ant's motion for a bill of particulars, and a further extension of time to answer with leave to defendant to renew his motion for •the bill of particulars, after the cause is at issue, upon proper affidavits.

The action was for alleged libels. The complaint set forth nine alleged causes of action, and among the allegations was one that “• many persons have in consequence thereof, and do still refuse to employ or trade with this plaintiff.”

What was sought by the motion was a bill of particulars of the names and addresses of the persons who, it is alleged in the complaint, in consequence of the alleged libel, have refused to trade with plaintiff. The motion was denied with costs to abide the event, with leave to renew after issue joined upon proper affidavits, for the reasons as stated by the learned judge below that no affidavit was presented showing sufficient reasons for the motion then being granted; that the case was not at issue, that it did not appear that the defendant was without knowledge of the persons who refused to employ plaintiff, and that the particulars asked for do not appear to be necessary to enable the defendant to answer. The disposition made on the motion by the judge was proper, unless the defendant had an absolute right at any stage of •the case to the bill of particulars sought. It was not shown nor does it appear that such particulars were necessary to enable defendant- to answer, and the other objections as to the sufficiency of the affidavits used on the motion, and referred to by the judge, ■are apparent. It has been frequently held by this court, that a mere application for a bill of particulars will not be granted, unless facts are shown by proper affidavits that the party is entitled to such bill of particulars, and where, as here, it is evident that the particulars sought are not necessary to enable the defendant to answer, but may be required upon the trial, proper affidavits as-the basis of the application must be presented. We are of opinion, therefore that the disposition made of the motion was proper, and. that the order appealed from should be affirmed, with ten dollars-costs and disbursements.

Van Brunt, P. J., concurs.

Patterson, J.

I concur on the ground that it does not appear that the furnishing of a bill of particulars is necessary now-After issue joined it may be proper to renew the application, and therefore the order made below was right.


author: Putnam, J.

text:
    The People ex rel. Edison Electric Light Co., App’lt, v. Edward Wemple, Comptroller, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed April 4, 1892.)

    1. Taxes—Domestic coup orations—Chap. 642, Laws op 1880—Capital. employed within state.
    The capital stock of the relator, a domestic corporation, was invested in patents extending over the United States and other countries. It received its income from the sale of licenses under its patents in various cities and villages in this and other states. The system adopted by it was to procure the formation of local corporations, and convey to them the right to use its patents over certain territory, and in payment take the stock of such local corporations. Held, that relator’s capital wTas employed in this-state and liable to taxation under chap. 542, Laws of 1880, as amended.
    2. Same.
    The word “employed,” as used in the statute, should be construed tornean employed by the relator.
    3. Same.
    The statute does not mean invested, it means used, kept at work or busy by the relator.
    Certiorari to review decision of defendant in assessing taxes-on relator for the years ending November 1, 1889, and November-1, 1890.

      Eaton & Lewis {Eugene II. Lewis, of counsel), for app’lt; S. W. Eosendale, attorney-general, for resp’t.
   Putnam, J.

This is a proceeding by certiorari to review the-action of the comptroller in imposing a tax upon the relator for the years ending November 1, 1889 and 1890, under the provisions of chap. 542, Laws of 1880, as amended, or added to, by chap. 361, Laws of 1881, chap. 151, Laws of 1882, and chap. 501 of 1885.

The substance of the provisions of said act, as far as they bear upon the questions involved, are as follows:

Section 1 provides that certain corporations shall make annual reports to the comptroller, on or before November 15th, of the amount of capital stock paid in, etc., and in cases where no dividends are made or dividends less than six per cent, that the officers,of the corporations shall, between the 1st and 15th of November in each year, appraise and estimate the value of the stock of said corporations and furnish the comptroller a certificate of the said value of such stock, under oath of its officers. Under § 3, “ every corporation * * * incorporated * * * in this state shall be liable to and pay a tax, as a tax upon its franchise or business, unto the State Treasurer annually, to be computed as follows: * * * The tax to be at the rate of one and one-half mills upon each dollar of the valuation of the said capital stock made in accordance with the provisions of the first section of this act.” Section 11 of said act, added by laws of 1882, as amended by chapter 501 of 1885, provides that, “ The amount of capital stock which shall be the basis of the tax under * * * § 3 * * * shall be the amount of capital stock employed within this state.”

It will be seen, therefore, that where no dividends are made, as in this case, the tax is to be imposed by the comptroller upon the value of that part of the capital of the corporation employed within this state.

The Edison Electric Light company was incorporated on December 31, 1886, under the laws of this state, having its office in the city of New York, with a paid up capital in 1889 of $1,500,000 and in 1890, $1,600,000, divided into shares of $100 each, the value of which the comptroller finds in 1889 was $135 per share and in 1890 at $170 per share, although no dividends had ever been paid.

The capital stock of the corporation was used in purchasing patents, defending the same .in litigations, experimenting and exploiting. In fact, substantially the whole capital of the relator was invested in its patents extending over the United States and other countries. It had in 1889 and 1890 received income from the sale of licenses under its patents in various cities and villages in this and other states. The system adopted by relator in the transaction of its business was as follows: It procured the formation of local corporations in desirable localities and conveyed to such local corporations the right to use its patents over certain territory, and in payment of such conveyances took the stock of such local companies.

In 1889 it held of such stock of various local corporations in this state $556,700, and in those outside of this state $1,453,673, amounting in all to $2,010,373. In 1890 the relator owned stock of companies in this state $1,399,950, and in those outside of the state $1,757,531, amounting to $3,157,481.

In the years 1889 and 1890, therefore, the Edison Electric Company’s capital was invested in local stock of various corporations in the state of New York and elsewhere to the amount as above specified, represented, we may properly assume, by certificates of stock in possession of relator at its office in New York, and also in its patent rights extending over that part of the United States and over other countries where it had not by any -conveyances sold its right to such patents.

The capital of the company being invested as above, its business in the years mentioned was the selling of the rights to use its patents to local corporations formed or being formed for a consideration which the relator received in stock of such local companies.

The question to be determined in this case is, did the comptroller reach k correct conclusion in holding that in the years 1889- and 1890 the whole capital stock of the relator was employed, within this state.

He so held, and fixed the value thereof at the sum as above-specified. Assuming that he reached the correct conclusion in determining that all of said capital stock was employed in the-state, his finding as to the value of such stock should be deemed conclusive. People ex rel. American C. & D. Co. v. Wemple, 42 St. Rep., 404.

The relator claims that not more than $50,000 of its capital is-employed in the state of New York. That the value of its patents for the state of New York does not'exceed one-twentieth of its entire value. That its capital invested in letters patent for all, the territory other than that of New York is not employed within the state. Also that where it has sold licenses for a local territory out of the state and taken stock in the local corporation it-has, as to each of those places, invested a part of its capital represented by such stock, which cannot be deemed capital employed in this state.

It is now settled that the action of the comptroller in such a case as this can be reviewed by cej'iiorari under § 463 of the Laws-of 1889. People ex rel. American C. & D. Co. v. Wemple, 42 St. Rep., 401. And, therefore, the question submitted by the parties above stated is properly before us and can be examined on its merits.

If the Edison Electric Light Company during 1889 and 18901 had been engaged in furnishing electric light at the various places outside of the state where the local corporations were formed, instead of said corporations, no doubt would exist that it would, in that case, have been engaged in a business outside of the state, and that a part of its capital was employed in such business. In such a supposed case the company would have occupied the same-position as the relator in People exrel. American C. & D. Co. v. Wemple, supra. But no such state of facts exists here as in that-case. This company’s only connection with business carried on outside of the state was to convey to local corporations formed for the purpose of using its patents the right to use the same for a. limited territory, receiving in payment for such right, instead of money, the stock of such corporations.

The relator might be deemed a wholesale dealer in electrical patents, doing business in New York, where it is incorporated, selling to local corporations all over the United States the right, to use its patents, and taking in payment the stock of such, corporations evidenced by certificates of stock, which we may assume are held by it at its office in New York. The cases of People v. American Bell Telephone Co., 117 N. Y., 241; 27 St. Rep., 459; and United States v. American Bell Telephone Co., 29 Fed. Rep., 44, determine that the Edison Electric Light Company is not doing business in the various places outside of the state where it has licensed local companies to use its patents. Those-cases hold that the owners of a patented article who have simply licensed the use of it to any other party for the purpose of carrying on a trade or business cannot be deemed liable to taxation on the theory that “it is carrying on the business.” Under the authority of the said cases the relator during the years of 1889 and 1890 only carried on a business in the state-of New York, and did not carry on any business outside of that state. This being so, was any part of its capital employed out of -the state ?

The claim of relator is that in every place where it has licensed local corporations, “ it has invested * * * a part of its capital, conveying a part of its patent rights, and taken in return for such investment certificates of stock evidencing and representing the same; and the letters patent owned by the. Edison Electric Light Company are properly invested and employed by it in territory co-terminous with the territory for which said letters patent were issued.”

As we have seen, the statute under which the comptroller acted authorizes him to levy a tax on the franchise or business-of the company at the rate of one and one-half mills on the-value of its corporate stock employed within the state. It will not be doubted that unless some part of its capital stock is-employed out of the state, all will be deemed under the act in question so employed within the state where the company is-incorporated, has its office and does its general business. It is important to determine what meaning shall be given to the word “employed” as used in the statute in question. Doubtless it should be construed to mean employed by the relator. Also, the statute does not mean invested. It means used, kept at work or busy by the relator.

It is not enough for the company to show an investment by it of a portion of its capital stock in the stock of a foreign corporation It must also show that that part so invested is employed by if out of the state. Suppose that the $2,010,373 owned by it in 1889 of local corporation stock and $3,157,401 in 1890 had been held in bonds of foreign states received in payment for its conveyance of patent rights; it would not be deemed to have that part of its capital employed out of the state of New York. So, the amount invested in the stock of the local corporations in various parts of the country is to be deemed a mere investment. The-amount of the relator’s capital so invested is not employed out of' the state. The doctrine laid down in the case of People v. American Bell Telephone Co., supra, determining that the relator is not engaged in any business in the various parts of the country outside of New York where it has licensed local corporations to use its patents, necessarily determines that the relator has not any capital employed where those local corporations exist. Unless the relator is engaged in the business carried on by said corporations it cannot be said to have its capital employed where said corporations, are located. The effect of the holding in the above cited cases is to-determine that the relation of relator to the local corporations-using its patents is that of a mere investor in the stock of such; ■companies. It is not engaged in the business of such corporations, and hence it has not employed its capital therein. Such capital may properly be deemed employed in the state where the -company is' located.

But relator insists that “from the very nature of patent rights, It is self evident that the capital of the relator invested in letters patent for a territory other than that of this state, is not, and cannot be, employed within the state.” And counsel quotes an expression made by Mr. Justice Curtis in Stevens v. Gladding et al., 17 How., U.S., 451, that “ These incorporeal rights do not exist in any particular state or district; they are-coextensive with the United States.” *

In other words, a corporation like that of Edison Electric 'Light Company who organize in this state with a capital of $1,500,000 paid up in cash under the act of 1880, as amended, might in the first instance be taxed by the comptroller for the whole amount of its capital stock. But the amount it purchased with its capital patent rights, although doing its entire business in New York city, can only be taxed under the act in question ■for the proportionate value of said patent rights for the state of New York. That only such proportionate part of the value would be deemed employed in this state.

The answer to this proposition is that although relator owns patent rights extending over the United States and over other countries, it is a New York corporation, only doing business in this state, and that, therefore, it does not employ its capital except in this state. A sale in New York of the patent right for South America or other territory outside of this state is doing business in New York, and not in South America or such other territory.

Under § 3 of the act of 1880 the tax imposed is not on prop■erty, but a tax upon the corporate franchise or business of the ■corporation. People ex rel American C. & D. Co. v. Wemple, 42 St. Rep., 403; People ex rel Southern Cotton Oil Co. v. Wemple, id, 634; People ex rel Edison Ill. Co. v. Wemple, 39 id, 608. In the case last cited the court remarked: “Although a part of •the relator’s capital stock was invested in patent rights, no deduction should be made to the tax on that account. The tax is declared by the statute to be upon the corporate franchise or business. * * * It cannot be affected in any way by the ■character of the property in which the capital stock was invested.” See also People v. The Home Ins. Co., 92 N. Y., 328. In People ex rel Edison El. Ill, Co. v. Wemple, supra, I infer that no deduction was made for the proportionate value of that part of the patent out of the state. In People ex rel American Bell Telephone Co., supra, although the point cannot be deemed decided, I infer from the language of the learned judge who delivered the opinion of the court, that he considered the amount of the capital of the Bell. Telephone Company invested in patents employed in Massachusetts, where that company was located. (See pages 255-6.)

In my judgment"a corporation chartered under our laws and doing its entire business in our state is liable to pay the license tax under the act of 1880 on its whole capital whether invested, in patents or otherwise.

As we have said, and as was held in People ex rel. Edison El. Ill. Co. v. Wemple, 39 St. Rep., 608, the comptroller could levy a tax under the act of 1880, though relator’s capital was invested-in patent rights. Those rights, it is true, extend over the United States and over other countries, authorizing the patentee or its grantees to use the patent inventions over all such territory. But the relator never did use or employ its patent rights outside of this state. The aforesaid local corporations, its licensees or grantees only used said patent rights. The only way .that relator-employed its capital so invested in patents was to sell patent rights at its office in the state of New York, and, therefore, it employed its whole capital at that place.

Counsel for relator cites the case of People ex rel American C. & D. Co. v. Wemple, 14 N. Y. Supp., 859; 38 St. Rep., 17, above referred to. That case is not similar to the one we are considering. There the relator was engaged in an actual business outside of the-state. In fact the greater part of its business was without the state. If the Edison Electric Light Company were engaged in actually-doing business now carried on by the various local corporations to which it has sold licenses, this case would be similar to the-case so cited.

The several authorities to which our attention is called where ■ the Pacific Mail Steamship Co. was relator against the commissioners of taxes, I do regard as parallel to this case. Without attempting to discuss those cases at length it is sufficient to say that they arose under a different statute. The taxes there held illegal were taxes against property, and not, as under the law of 1880, a tax on the franchise of business of the corporation. The same may be said as to the case or the People ex rel. Trowbridge v. The Commissioners of Taxes, 4 Hun, 395, and People ex rel. Panama R. R. Co. v. Commissioners of Taxes, 104 N. Y. 240; 5 St. Rep., 647. As stated in People ex rel. Edison Ill. Co. v. Wemple, supra, the tax being upon a corporate franchise is not affected in any way by the character of the property in which the corporate stock is invested.

The burden was upon the relator in this case to show that the-tax imposed by the comptroller of which he complains was not authorized by the act of 1880. He must affirmatively establish that proposition. People ex rel. Brush Ill. El. Co. v. Wemple, 39 St. Rep., 616. I think it has failed to do so, and hence that the action of the comptroller should be confirmed and the writ of certiorari granted therein be quashed, with fifty dollars costs and disbursements against the relator.

Herrick, J. concurs.