text:
    The People ex rel. Isaac Lichtenstein, App’lt, v. Thomas C. Hodgson, Sheriff, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Disorderly persons—Jurisdiction—Commitment.
    A police justice has jurisdiction of proceedings against a disorderly person, and may, in his discretion, make a reasonable postponement of the hearing to enable the complainant to be notified and her witnesses summoned, or the necessary accommodation of other business, and may commit the accused to the custody of the sheriff in default of bail pending such postponement.
    2. Same—Habeas corpus—Questions not reyiewable on appeal.
    The petition for a writ of habeas corpus alleged that the justice had no jurisdiction because of the pendency of an appeal from a former conviction for the same charge, and that one of the issues to be tried was the marriage of relator and the complainant, and in his traverse relator denied that he ever had a wife or family. No evidence was given at special term to support these allegations, nor did it appear that such issue had been made before the justice. Held, that these questions were not presented by the record for review on appeal.
    Appeal by the relator from an order of Monroe special term dismissing a writ of habeas corpus and remanding him to the custody of the sheriff.

      J. M. B. Stevens, for app’lt; G. A. Benton, district attorney, for resp't.
   Dwight, P. J.

The principal questions argued by counsel for the relator on this appeal are not in any manner presented by the record before us. He was committed to the custody of the sheriff by the police justice of Rochester, pending a hearing on a warrant issued by that magistrate charging him with being a disorderly person in that he refused to support his family. He sued out a writ of habeas corpus alleging in his petition that he had been previously arrested and convicted on the same charge and, having appealed from the judgment of conviction, had been let to bail pending such appeal, which was still pending and undetermined. He also alleged that a principal question upon which the appeal was brought was whether the police justice had jurisdiction of the proceeding, one of the facts of issue being the marriage of the parties, and that the same questions would arise upon any subsequent trial of the case. The petition set out the warrant and commitment of the police justice which it alleged were the cause or pretense of the imprisonment complained of, and it charged that such imprisonment was illegal because the magistrate had no jurisdiction to issue such process, by reason of the facts before recited, among others.

The return of the sheriff set up the same commitment as that alleged in the petition as his authority for the detention of the relator. The relator by way of traverse of the return alleged that the commitment was null and void for want of jurisdiction of the magistrate to issue the same ; reaffirmed the allegations of his petition, and denied that he ever had a wife or children, or a family within the meaning of the statute relating to disorderly persons.

No evidence seems to have been given by the relator in support of any of the allegations of his petition or traverse, and the final order of the special term discharged the writ of habeas corpus and remanded the relator to the custody of the sheriff. .

The relator seeks to argue here the two questions, (1) of the effect of the previous proceeding against him on the same charge, his conviction thereupon and his appeal from such conviction still pending, and (2) whether the magistrate has jurisdiction to try the issue of the marriage of the relator and the complainant. But these questions are plainly not presented by the record on this appeal, because there is no evidence of such previous conviction and appeal, nor is it even alleged that the issue of the marriage of the parties had been made in the proceeding in which the commitment in question was issued. On the contrary* that commitment was to answer the charge made in that proceeding and so far as appears no plea had yet been made to such, charge.

We are bound therefore to assume that the only question before the special term was one which might have been raised by a demurrer to the return of the sheriff, viz., of the sufficiency and validity of the commitment on its face. That inquiry, no doubt, involved the two questions, 1, whether the police justice had jurisdiction to entertain the proceeding, and 2, whether he had authority to commit the relator to the custody of the sheriff pending the hearing before him.

Such being the case before the special term there can be no doubt of the correctness of the order appealed from. Jurisdiction of the particular offense with which the relator was charged is expressly given to the police justice by §§ 900e<seg'. of the Code of Criminal Procedure, as well as by §§ 263 et seq. of the charter of the city of Rochester as amended by chapter 561 -of the Laws of 1890. That it was in the discretion of the magistrate to make a reasonable postponement of the hearing of the charge in order to enable the complainant to be notified and her witnesses to be summoned,, or for the necessary accommodation of other business before him, cannot be questioned; and that he may commit the accused to the custody of the sheriff pending such postponement, and in default of bail, follows of necessity. There was no evidence before the special term that such discretion was abused in this case, nor that bail was offered and refused. y

There seems to have been no ground shown for impugning the jurisdiction of the magistrate to issue the commitment nor to question that the same was valid and sufficient on its face.

The order of the special term should be affirmed, with costs.

Macomber and Corlett, JJ., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    Arba Briggs, App’lt, v. John Langford, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Estoppel—Pleading.
    The complaint in an action to restrain the foreclosure of a mortgage purchased by defendant subsequent to the purchase of the premises by plaintiff in ignorance of the existence of such mortgage, in the negotiations for which purchase defendant participated, alleged that said mortgage “was fraudulent and void to the knowledge of the said * * * and the said Langford, and the concealment of the existence of the said lien from the said plaintiff at the time of the purchase of the said lands by the plaintiff was with intent on the part of said * * * and Langford and each of them to cheat and defraud the said plaintiff out of said lands and the money paid therefor.” Held, that the complaint was sufficiently broad to admit evidence showing defendant’s connection with such concealment, and to sustain a judgment based upon an estoppel against the defendant.
    Appeal from a judgment entered in Chautauqua county on the report of a referee. . "

      William H. Henderson, for app’lt; L. Morris, for resp’t
   Macomber, J.

The action was brought to restrain the defendant Langford and one Austin Heath, the latter now deceased, from foreclosing the mortgage mentioned in the complaint, upon the ground that the same had no validity and was without consideration and was null and void: and upon the further ground, that at the time the plaintiff purchased the mortgaged premises the defendant fraudulently concealed the existence of such mortgage from him.

The action has been tried three times before a referee, resulting each time in a dismissal of the plaintiff’s complaint. Upon the first trial, the referee held that the plaintiff could not under the pleadings prove a want of consideration of the mortgage as against a bona fide purchaser. The judgment entered upon that report having been affirmed by this court, an appeal was taken to the court of appeals, 107 N. Y., 680; 12 N. Y. State Rep., 461, where the judgment was reversed and a new trial granted. It was held by that court, that the purchaser of a mortgage stood in all respects touching the security in the place of the assignor. thereof.

On the appeal from the decision entered in pursuance of the report of the referee upon the second trial, this court granted a new trial substantially upon the ground that under the findings contained in the referee’s report, to the effect that the defendant Langford by his.representations to the plaintiff induced the plaintiff to purchase the mortgage, he ought not to be heard to claim under such mortgage although it had an actual legal existence prior to that time, and although he acquired his interest therein subsequent to the representations made to the plaintiff inducing his purchase.

The referee upon whose report the judgment now appealed from was entered has held, if we, in the absence of a written opinion, understand his findings aright, that the plaintiff cannot recover in this action. He accordingly dismissed the complaint and directed judgment to be entered without prejudice in any manner to any action based upon allegations to the effect that the defendant has by any act, or acts constituting an estoppel inpais entitled the plaintiff to relief.

The facts appearing upon this appeal are certainly not more favorable to the defendant than they appeared on our former hearing as reported in 26 N. Y. State Rep., 599.

On the 12th day of August, 1875, one Anson R Day and wife executed and acknowledged the mortgage in question and delivered the same to one Austin Heath the mortgagee, said to be for the payment of the sum of $1,540, with annual interest; the principal sum to become due in two years from the second day of August, 1875. Ho bond or other obligation to pay such moneys or any portion thereof was executed either by the mortgagors or by any other person. The mortgage was properly recorded in the clerk’s office on the 26th day of October, 1875. Aside from the presumption of law arising from the existence of the seal upon the mortgage, there was no evidence of any actual consideration or value given fdr the execution and delivery of the instrument. The assignment to the defendant was made Hovember 24, 1879. The defendant in consideration of such assignment agreed to pay Heath.the amount thereof as follows; By paying him a portion in money, another portion as the assignor should need it, and crediting and applying the remainder of the purchase-price upon a debt owing from Langford to Heath. Anson R Day and the defendant were brothers-in-law, as were also the deceased defendant Heath and Langford, as well as said Day and Heath..

In the deed of conveyance by Day and wife to the plaintiff, which was on the 17th day of August, 1876, there was a covenant that the premises were free and clear of all incumbrances. Theoprincipal question litigated on this last trial was whether the defendant was estopped to deny that the plaintiff has an unincumbered title to the premises. The plaintiff received the deed and purchased the lands in good faith under the belief that there was no incumbrance thereon, and paid therefor the full value thereof, namely the sum of $3,750. Anson R Day died in the year 1877 insolvent, having been in that condition from the time of the delivery of the deed by him to the plaintiff. In his report the referee says that the evidence fails to establish that the assignment of the mortgage was made and delivered without consideration, “ but the defendant did have knowledge at the time of the assignment to him that the plaintiff had purchased the said lands under the representations contained in said deed, and that the said lands had been paid for by the said plaintiff, and also the fact that the plaintiff had no knowledge at the time of said purchase and payment of the existence of the said mortgage lien/’

The referee further finds in his report that the evidence fails to show that this mortgage was made without consideration, or was null or void, or that it was made for the purpose of covering up property of Anson R Day, or for hindering, delaying or defrauding the creditors of said Anson R Day in the collection of their demands, or that any concealment of the existence of the lien at the time of the purchase of said lands by the plaintiff was with the intent of Heath or Langford to cheat or defraud the plaintiff.

In his special findings, however, the referee has found that after the papers for the transfer of the property had been prepared, but before they were delivered, the grantor and the members of his family refused to proceed further until the defendant, John Lang-ford, who was brother-in-law of Day, should come to the office for the purpose of consulting and advising with them in relation thereto, whereupon the defendant came, and there stated in the presence and hearing of the plaintiff that he came to look after the interests of Anson R Day and his wife in the business then being transacted. That he examined the papers, read them over in the presence of the parties and actually counseled and advised the said Anson R. Day in respect thereto. The plaintiff asserted in the presence of the Days and of the defendant that he did not wish to take the deed until a search of the title of the property could be procured, whereupon Day produced a search showing the title to be free of incumbrance down to the time he purchased the property.

The referee further finds, in his special findings, that “the plaintiff was, by the proceedings at the office where Langford attended, induced to believe that by accepting the deed he would acquire the title to said lands free and clear of all liens and incum. brances, and so believing he then and there accepted the deed and paid the money in the presence of Langford,”

A further finding by the referee is as follows: “ That, by reason ■of the representations so made by the said Day and the other persons there present, as aforesaid, the plaintiff was induced to accept said deed and pay said consideration without making any examination in the clerk’s office of said county as to .the title and incumbrance upon said lands."

' He further finds that the defendant “ well knew that he had aided and assisted and advised the said mortgagors in making ■said sale, with the purpose and intent of securing to said Elizabeth Day, who was a sister of said Langford’s wife, a part of the consideration so paid by the plaintiff therefor.” And further, “and he (the defendant) then knew that the plaintiff paid said consideration then and there in full, being induced to believe by the representations then made to him by the said Anson R. Day and others then present, as hereinbefore stated, that the said land was free and clear from all liens and incumbrances as hereinbefore found and stated, and he was induced to make such payment by such representations aforesaid, and by the conduct of said Anson R. Day and wife and of said defendant”

The referee further found this as a fact: “ And I further find that said Langford was not a purchaser in good faith of said mortgage, but took the same chargeable with' notice of any and all defenses existing thereto; that said transaction was not in the usual course of business, and the assignment was made by Heath to Langford because, and for the reason, that they believed that the said mortgage could be more easily enforced by the said Langford than by the said Heath.”

Certain requests to find were made in pursuance of the evidence which were declined by the referee as immaterial and as not being alleged in the complaint. Among them is the following (11th request): “ And that the said Day further stated, in the presence of the said Langford and other of the said there assembled, that he had not incumbered said property since he had owned it, and that the said property was perfectly clear of incumbrances.”

Also (request 24) the following: “ And said plaintiff was induced to believe that said Langford knew that said lands were unincumbered.”

Certain other requests to find were made which were supported by the evidence which the referee declined to make, upon the ground either that the same were immaterial, or that they were not embraced within the allegations of the complaint.

It is quite clear that if the learned referee had deemed the complaint sufficient to support the evidence which had been given, showing the estoppel in pais and thus precluding the defendant from asserting against the interest of the plaintiff that which would be unconscionable, a different result would have been reached by him, both in the findings as made and in the disposition which he made of the special requests to find. Upon the former appeals the question was not discussed by the courts, whatever may have been the form of the objections to the testimony taken at the trial, that the complaint was not broad enough to sustain a judgment based upon an estoppel against the defendant.

The question now is definitely presented and must be decided. The complaint contains many allegations of fraud perpetrated by Day and his family upon the plaintiff in inducing the latter to take the deed. The case, however, lacks sufficient evidence to sustain those allegations and to declare the deed to be void for want of consideration, or as being made for the purpose of defrauding creditors, as was contended upon the former appeal. But the following allegation of the complaint is, in our judgment, sufficient to support all the testimony which the referee has received in the case and which he subsequently declined to consider upon the ground that it was not competent under the complaint: “ and that the said lien and incumbrance upon the record as aforesaid, as plaintiff alleges upon information and belief, was fraudulent and void to the knowledge of the said defendant Austin Heath and the said Langford, and the concealment of the existence of the said lien from the said plaintiff at the time of the purchase of the said lands by the plaintiff was with intent on the part of the said Heath and Langford and each of them to cheat and defraud the said plaintiff out of said lands and the money paid therefor.”

Even if this allegation of the complaint should be deemed to-be inartistic in alleging the facts upon which the plaintiff now relies, it surely contains enough to admit the evidence which has been given. Such was the view of the referee at the time of the taking of the testimony and down to the final submission of the case to him for his decision, because under objection repeatedly made, that the evidence was incompetent under the complaint, the objection was overruled and the evidence admitted.

The plaintiff’s counsel, therefore, was not called upon to make any application, so far as the conduct of the trial required him to act, to amend his pleadings. He had the right to assume in this regard, that the ruling made when the evidence was adduced would be adhered to, or if the referee should come to a different conclusion thereon, that the opportunity should be afforded to him to make an application to amend his complaint. But, as said above, the allegations of the complaint that there was a concealment made of the existence of the mortgage, was sufficient as a matter of pleading. The facts, some of which are above stated, of Langford’s participation in such concealment or in the inducement to the plaintiff to purchase the lands under the belief that there was no incumbrance, was properly given under such allegation of the complaint. As was stated upon the former appeal, if Heath had stood by while owning this" mortgage and had by word and action and advice induced the plaintiff to purchase the lands in reliance upon the false statement by Day that the same were free and clear from incumbrance, it could not certainly be claimed by him afterwards that the mortgage which he then held, the existence of which he did not disclose, could be enforced in his behalf. The right of the transferee could be no greater than his own. Under the proofs and findings he is not a purchaser in good faith, but on the contrary he is a purchaser with knowledge that the owner of the lands at the time of the purchase, induced in part by the' advice of himself, believed them to be unincumbered, and acting upon such belief had paid full value for the same. Under these circumstances we think that the defendant is estopped to deny that the lands were unincumbered, for the reason that he contributed in part to induce the plaintiff to purchase the same, relying upon his assertion that they were free from such incumbrance. He places himself, under the evidence, within the rule governing estoppel in pais and he should not be permitted personally to assume an attitude toward the plaintiff in hostility to the condition of affairs which he contributed to bring about

It follows that the judgment should be reversed and a new trial granted before another referee, under the statute.

Dwight, P. J., concurs; Corlett, J., taking no part


author: Daniels, J.

text:
    Frederick A. Schroeder et al., Resp’ts, v. Daniel Frey et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Depositions—Filing.
    The right to use the deposition of a deceased witness taken under an agreement that it might be so used, arising out of the condition of the case when on the calendar for trial, is not lost by a failure to file it.

      2. Bankruptcy -Discharge—Stipulation in action.
    A stipulation made while bankruptcy proceedings were pending, relieving the defendants from liability to arrest, is to be construed according to the import of its language in view of the circumstances under which it was made, and evidence to prove the understanding or intention of the stipulation is not admissible.
    :3. Same—Evidence.
    In an action for goods sold brought subsequent to the discharge of the vendees in bankruptcy, on the ground of fraud in procuring the sale, an oral statement by their counsel in the bankruptcy proceedings as to their financial condition may be proved by a person who was present by repeating from his notes what was said at the time, no objection being made to proof of such statement by the defendant who was not present at such time.
    4. Saxe—When notes need not be surrendered.
    In an action for the price of goods on the ground of fraudulent representations, brought after a discharge in bankruptcy of the defendants, notes given for the purchase price which were presented to the register in bankruptcy in proving the debt, and which are barred by the statute of limitations, need not be surrendered.
    5. Bankruptcy—Partnership—Fraud.
    False representations of one partner in making a purchase of goods, not shown to have been known to or sanctioned by the other partners, does not prevent the operation of the discharge in their favor.
    The defendants in this action appeal from a judgment recovered on the verdict of a jury, for the price of goods sold and delivered, and from an order denying a motion for a new trial.

      M. H. Regensberger, for app’lts; John Henry Hull, for resp’ts.
   Daniels, J.

The answers admitted the sale and delivery and the amount unpaid upon the price of the goods. But the right of the plaintiffs to recover that price was resisted chiefly on the ground of bankrupt discharges issued to each of the defendants under the authority of the bankrupt laws of the United States. The regularity of the proceedings in which these discharges were issued was not impeached. But it was alleged in the reply that the plaintiffs had been induced to part with the goods by reason of false and fraudulent representations made to them prior to the sales, and deliveries made. And evidence was given having a direct tendency to prove the truth of these accusations. And in the event of proving this fact, then by § 33 of the bankrupt act the discharges were deprived of the effect they would otherwise have, even after the creditors had proved their debt and participated in the dividend made out of the estate of the bankrupts, as these plaintiffs were shown to have done.

But to overcome the effect of the discharges by this section of the bankrupt act, proof of positive or intentional fraud has been required. The debt must have been created by fraud, and that involves actual wrong on the part of the debtor. Palmer v. Hussey, 87 N. Y., 303, 307. And its continued existence is in the nature of a punishment of the person guilty of the wrong. To that extent he forfeits the benefit of his discharge.

But the fraud which the evidence tended to establish was that alone of the defendant, Isidore Frey. He was the partner who applied to the plaintiffs for the goods which they sola, and to induce the sales, as the jury must have found the facts, materially misrepresented the financial ability of his firm. For instead of having an unimpaired capital in their business of $20,000, as he stated the fact to be, the firm at the time was fatally insolvent. It is true that he denied making these representations, but the evidence against him vas such as to make this a matter of fact to be decided by the jury, whose verdict against him must now be followed as conclusive. And it was not error to allow the deposition of the deceased witness Frederick A. Dreyer to be used as a part of this evidence. For it was shown to have been taken under an agreement that it might be so used arising out of the condition of the case when the action was upon the day calendar for trial at a preceding circuit And the right to use it as evidence was not lost by the omission to file it, as the Code in ordinary cases has required that to be done. That omission may have been an irregularity, but under these circumstances certainly it was not one which could legally lead to the exclusion of this testimony.

Neither can this defendant legally complain of the exclusion of evidence offered to prove the understanding, or intention of the stipulation made while the bankruptcy proceedings were pending, relieving the defendants from liability to arrest under the order which had been obtained, and was then in the hands of the sheriff to be executed. For that stipulation was to be construed according to the import of the language it contained in view of the circumstances under which it was made, and which were fully before the court at the trial. And nothing is to be found in the decision of the court of appeals when this case was there for decision which sanctions any greater liberality in the evidence which might be received for this object. Schroeder v. Frey, 114 N. Y., 266; 23 N. Y. State Rep., 254.

The statement made by Mr. Gohen at the meeting of creditors concerning the financial condition of the firm might very well have been held incompetent against this defendant, if that objection had been made to it For it was not proved, except inferentially, to have had either his sanction or' authority, and he was not present, as the other two partners were, when it was made. But it may be inferred from this omission to raise that objection, that this defendant understood that this statement was to be made by Gohen to the creditors, and that it was also truthful. And this inference receives further confirmation from the fact that the-defendant gave no evidence whatever in the least differing from this statement of the condition of the firm, as he may be expected to have done if the statement had not been correct.

The statement was made for the information of the creditors, and no legal rule was violated in permitting Mr. Baronsky to repeat from his own notes what was said at the time. If the statement itself had been presented to or circulated among the creditors present, then its presence at the trial might regularly have been insisted upon as the best evidence of the communication made. But that was not done; Mr. Gohen only orally repeating what was-the financial condition of this firm, and the witness testifying to it, with the aid of his own statement made at the time, repeating that at the trial. His evidence given in this manner was admissible, and the exception to the ruling allowing it cannot be sustained.

Notes were given by the defendants to the plaintiffs, and credited in the account for the goods. They were not produced and surrendered at the trial. And the right of the plaintiffs to recover was also resisted for that failure. But these notes were worthless as obligations, they were long past due, and they had been handed to the register in bankruptcy in making proof of the plaintiffs’ debt. The defendants, therefore, were not injured by the failure to produce these notes, all remedy upon which had long been barred by the effect of the statute of limitations.

Other objections were raised for this defendant during the trial, but they are too trivial to require the devotion of time to their consideration. The case was legally presented upon the inquiry whether he had been guilty of the fraud upon which it depended. The ^ evidence so far proved the fact against him as to place it within the province of the jury to decide it. Their decision was adverse to him, and there is no cause for setting it aside.

But as to the defendants Daniel Frey and Jacob S. Haas, the other two members of the firm, there was no evidence implicating them in the fraud of their partner Isidore Frey. He was the buyer of the firm. And it was not proved that the other two members knew of, or had in any way sanctioned the making of these representations. Neither did it appear that they knew, or had any reason to believe that their firm was at the time incapable of paying its debts.

It is true that this would not relieve them from liability for the debt itself, for in its creation their partner was clothed with power so far to bind them. But neither their relations to him as their partner, nor any authority conferred upon him by either of them, authorized him to subject them to the consequences of his positive fraud. This has already been held by this court, when it set aside the arrest.of an innocent partner under an order depending wholly for its support upon the fraud of his associate in the partnership business. And the rule prescribed by this section of the bankrupt act is very much the same as that contained in the Code of Civil Procedure, creating or sanctioning the right of arrest under an order, for fraud. It does not make the innocent partner, not participating in the fraud, liable for the wrong of his associate. The discharges in bankruptcy were in full force in their favor. And the action- accordingly- should have been dismissed so far as it was against them, and the exception to the refusal to dismiss it is well founded. The judgment and order, so far as they affect the defendant, Isidore Frey, should be affirmed, with costs, but so far as they are against the defendants, Daniel Frey and Jacob S. Haas, they should be reversed, and a new trial ordered for them, with their costs of the appeal to abide the result.

Van Brunt, P. J., and Brady, J., concur.


author: Per Curiam

text:
    Joseph Palladino, Resp’t, v. The Mayor, etc., of the City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Contract—When explicit, its provisions must control recovery.
    The decision (in the former appeal in this action, reported in 31 N. Y. State Rep., 775, reaffirmed.
    Appeal from judgment entered on verdict, etc.

      W. H. Clark, for app’lt; L. L. Kellogg, for resp’t
   Per Curiam

The involved being the same as on the previous appeal in this case, for the reasons stated in the opinion rendered in Palladino v. The Mayor, decided May, 1890, 31 N. Y. State Rep., 775, the judgment appealed from should be affirmed.

Van Brunt, P. J., Bartlett and Barrett, JJ., concur.


author: Brady, J. Daniels, J.

text:
    The People ex rel. William H. Osborne, App’lt, v. Edward Gilon et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Municipal corporations—Assessments—Grantee after improvement COMPLETED.
    Relator became the owner of certain premises after a local improvement had been completed, but the assessment therefor was not completed until eighteen months after he received his deed. The assessment was made against relator as owner of the property. Reid, that he should have protected himself against liability therefor by proper covenants in his-purchase, and that the assessors could not be compelled to change the name on the assessment roll.
    Application for a reargument. For opinion on the appeal, see 30 N. Y. State Rep., 515.

      Truman H. Baldwin, for relator; G. L. Sterling, for resp’ts.
   Brady, J.

This matter was properly disposed of on the law controlling it both at special and general terms. It presents, it is-true, a seeming hardship upon the appellant, but he should have protected himself by proper covenants on his purchase. The persons who derived the benefit of the improvement and also the award for damages should doubtless be required to pay the assessment, although the subsequent owner is equally the recipient of the benefit for which he may be compelled to pay by reason of his purchase and his name appearing as owner on the tax books, the prior owner not having paid out of the indemnity given him by the award of damages. The vendors may have estimated the property including the payment to be made and avoided making such payment for that reason. We cannot nor can the city speculate as to these elements, nor is the latter required to determine who owns the property absolutely. We must leave the parties to secure themselves against assessments and taxes by proper agreements relating thereto.

Application for reargument denied.

Van Brunt, P. J., concurs.

Daniels, J.

A reargument would be without benefit to the appellant. The decision of the assessors cannot be reviewed or controlled by mandamus. The motion should be denied.


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

text:
    Frank Walton, Resp’t, v. Parke Godwin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Appeal—Re-argument.
    The former decision on this appeal, 38 N. Y. State Rep., 886, reaffirmed and re-argument denied.

      Motion for re-argument

      W. W. Badger, for motion; Nelson Smith, opposed.
   Van Brunt, P. J.

Motion denied.

Daniels, J.

This case was examined both as' to the facts and the law. Neither was in any respect overlooked in reaching the conclusion mentioned in the opinion, which was considered to be the only disposition that could regularly be made of it. Upon another 'trial the difficulties presented may be avoided, and it is the right of the defendant that they should be before he can be held liable in the action. The court proceeded upon all the charges in which the evidence tended to show that-the report was untruthful in directing the jury that this part of the case had been established. It was wholly withdrawn from the jury. In "great part that was an erroneous assumption. And it can only be corrected by another trial, when the charges depending upon the conflicting evidence can be excluded, or else submitted to the jury to be determined by them.

The motion should be denied, with costs.


text:
    Thomas Cavanagh, Adm’r, Resp’t, v. The Oceanic Steam Navigation Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29 1890.)

    Pleading—Sham allegations.
    Allegations in a pleading which are manifestly false may properly be stricken out as sham. The rules of pleading are liberal enough to enable any party truthfully to raise any issue without requiring that resort should be had to manifestly false allegations.
    Motion for re-argument. For former opinion see 33 N. Y. State Eep., 903.

      Thos. P. Wickes, for motion; Lawrence Godkin, opposed.
   Van Brunt, P. J.

The learned counsel for the plaintiff is entirely mistaken in supposing that due deliberation was not held before the decision in this case was announced because of the large number of other cases which were decided at the same time. We see no reason to modify anything that was said in that opinion, which, in our opinion, characterized in none too harsh terms what seems to us to be reckless swearing to a pleading of the most reprehensible kind. The rules as to the verification or the method of allegation and denial in pleadings are liberal enough to enable any party truthfully to raise any issue without requiring that resort should be had to manifestly false allegations.

The motion for new trial should be denied, with ten dollars costs.

Daniels, J.

I agree that this is not a case for a re-argument It was fully considered, and the verification conspicuously proper.

Brady, J., concurs.


text:
    Court of Appeals.
    Filed January 13, 1891.
    The First Nat. Bank of Hornellsville, N. Y., Resp’t, v. John Hyland, App’lt.
    Judgment affirmed, with costs.

      Be Mermlle Page, for resp’t; W. A. Sutherland, for app’lt.
   All concur.

Affirming 25 N. Y. State Rep., 446.


text:
    Benjamin F. Conklin et al., App’lts, v. The Prospect Park Hotel Co., Resp’t.
    Judgment affirmed, with costs.

      S. Crow ll, for app’lts; G. H. Jones, for resp’t.
   All concur.

Affirming 16 N. Y. State Rep., 312.


text:
    Herman Grossman et al., Resp’ts, v. Lyman M. Baker, App’lt.
    Judgment affirmed, with costs.

      L. M. Cummings, for resp’ts: Henry L. Schwartz, for app’lt.
   All concur.

Affirming 18 N. Y. State Rep., 1032.


text:
    The People ex rel. James C. Fargo et al., Resp’ts, v. James S. Murphy et al., as Assessors, etc., App’lts.
    Order affirmed, with costs.

      Ansley Wilcox, for resp’ts; Philip A. Laing, for app’lts.
   All"concur.

Affirming 32 N. Y State Rep., 780.


text:
    Gustavus Griebel, Resp’t, v. The City of Rochester, App’lt.
    Appeal dismissed, with costs.

      Walter S. Hubbell, for resp’t; Henry J. Sullivan, for app’lt.
   All concur.

See 30 N. Y. State Rep., 1021.


text:
    The People ex rel. Alex. Hicinbothem, App’lt, v. Henry D. Purroy et al., Resp’ts.
    Order affirmed, with costs.

      John M. Tierney, for app’lt; Wm. L. Findley, for resp’ts.
   All concur.

Affirming 31 N. Y. State Rep., 934.


text:
    Martin D. Chase, Resp’t, v. The Warsaw Water Works Co., App’lt.
    Appeal dismissed, with costs.

      James Wood, for resp’t; M. E. & E. M. Bartlett, for app’lt.
   All concur.

See 32 N. Y. State Rep., 1186.


text:
    Mary A. P. Tucker, App’lt, v. Cornelia Gilman, Resp’t.
    Order of general term affirmed, with costs.

      Chas. J. Hardy. for app’lt; Geo. H. Fletcher, for resp’t.
   All concur.

Affirming 83 N. Y. State Rep., 962.


text:
    Frederick Goll, Resp’t, v. The Manhattan R. Co., App’lt.
    Judgment affirmed, with costs.

      B. F. Watson, for resp’t; Brainard Tolles, for app’lt.
   All Earl, Peckham and Gray, JJ., not voting.

Affirming 24 N. Y. State Rep., 24.


text:
    Filed January 20, 1891.
    Chas. N. Wing, Resp’t, v. Bernardo de la Rionda, App’lt.
    Motion for re-argument denied, with ten dollars costs.
   No papers.

See 34 N. Y. State Rep., 267.


text:
    Daniel Cromwell, Co. Treas’r, Resp’t, v. Marie McLean, Impl’d, etc., App’lt.
    Motion for re-argument denied, with ten dollars costs.
   No papers.

See 34 N. Y. State Rep., 85.


text:
    Filed January 27, 1891.
    The People ex rel. Louis Ullrich, App’lt, v. Jas. D. Bell, Police Com'r, etc., Resp’t.
    Order affirmed, with costs.

      E. Countryman, for app’lt; F. A. McCloskey, for resp’t.
   All concur.

Affirming 24 N. Y. State Rep., 114.


text:
    Francis J. C. Ferris, Resp’t, v. The New Haven Web Co., App’lt.
    Order affirmed, with costs.

      Daniel S. Remsen, for resp’t; Franklin Bien, for app’lt.
   All concur.

Affirming 3J N. Y. State Rep., 909.


text:
    Francis J. C. Ferris, Resp’t, v. The Armstrong Mfg. Co., App’lt.
   Same as above.

Affirming 32 N. Y. State Rep., 908.


text:
    David K. McCarthy et al., App’lts, v. Isaac N. Wright et al., Def’ts; Isaac B. Richmond, Assignee, Resp’t.
    Order affirmed, with costs.

      Louis E. Fuller, for app’lts; Hadley Jones, for resp’t.
   All concur, except Eabl, J., who takes no-part.

Affirming 31 N. Y. State Rep., 371.


text:
    The People, App’lts, v. Wm. H. Coughtry, Resp’t.
    Order affirmed, on opionion of Leabned, J., at special term, with costs.

      A. B. Gardenier, dist. att’y, for app’lts; F. M. Danaher, for resp’t.
   All concur, except Ruger, Ch. J., Andbews and Finch, JJ., who dissent.

Affirming 34 N. Y. State Rep., 706.


text:
    Franklin Allen et al., Ex’rs, Resp’ts, v. Harry Allen et al., App’lts.
    Appeal dismissed, with costs.

      John Notman, for resp’ts; Stephen C. Baldwin, for app’lts.
   All concur.

See 33 N. Y. State Rep., 876.


text:
    Filed February 3, 1891.
    Ann Cranston, Adm’rx, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.
    Judgment affirmed, with costs.

      R. A. Parmenter, for resp’t; Chas. E. Patterson, for app’lt.
   All concur.

Affirming 32 N. Y. State Rep., 592.


text:
    Wm. Cole, Resp’t, v. Chas. E. Frost, Ex’r, et al., App’lts; Methodist Episcopal Hospital et al., Resp’ts.
    Appeal dismissed, with costs.

      James Tray, for pl’ffi-resp’t; P. V. R. Stanton and Calvin Frost, for app’lts; G. G. & F. Reynolds and Wm. Hughes, for Hospital et al., resp’ts.
   All concur.

See 22 N. Y. State Rep., 117.


text:
    Wm. E. Laimbeer. App’lt, v. Robert W. Tailer et al., Ex’rs, Resp’ts.
    Judgment affirmed, with costs.

      Geo. W. Van Siclen, for app’lt; E. R. De Grove, for resp’ts.
   All concur.

Affirming 21 N. Y. State Rep., 380.


text:
    Leopold Loeb, App’lt, v. Augustus T. Chur et al., Resp’ts.
    Judgment affirmed on the opinions below, with costs.

      W. G. Peckham, for app'lt; -Jacob P. Miller, for resp’ts.
   All concur.

Affirming 25 N. Y. State Rep., 996.


text:
    Henry Van Bergen, Rec’r, etc., App’lt, v. Anna C. Yager et al., Resp’ts.
    Judgment affirmed, with costs.

      James B. Olney, for app’lt; John J. Linson, for resp’ts.
   All concur.

Affirming 26 N. Y. State Rep., 40.


text:
    Mary Wall, Adm’rx, Resp’t, v. The Del., L. & W. R. R. Co., App’lt.
    Judgment affirmed, with costs.

      J. A. Hathaway, for resp’t; A. S. Coon, for app’lt.
   All concur, except Earl, Finch and Gray, JJ., dissenting.

Affirming 28 N. Y. State Rep., 132.


text:
    Julia A. Riley, Adm’rx, Resp’t, v. Henry Gitterman et al., App’lts.
    Judgment affirmed, with costs.

      Thomas E. Pearsall, for resp’t; Donohue, Newcombe & Cardozo, tor app’lts.
   All concur.

Affirming 28 N. Y. State Rep., 983.


text:
    The Same v. The Same.
   Same as above.


text:
    George W. Driscoll, Rec’r, App’lt, v. Wm. W. Downer et al., Resp’ts.
    Judgment affirmed, with costs.

      Wm. G. Trotter, for app’lt; John C. Hunt, for resp’ts.
   All concur.

Affirming 29 N. Y. State Rep., 609.


text:
    Moritz Gluck, Adm’r, Resp’t, v. The Ridgewood Ice Co., App’lt.
    Judgment affirmed, with costs.

      Charles Steckler, for resp't; Samuel D. Morris, for app’lt.
   All concur.

Affirming 31 N. Y. State Rep., 99.


text:
    In the Matter of the Estate of George Mapes, Deceased.
    Judgment affirmed, with cosls.

      Lewis E. Carr and W. D. Mills, for app’lts; B. R. Champion, for resp’ts.
   All concur.

Affirming 28 N. Y. State Rep., 634.


text:
    Sumner E. Claggett et al., Resp’ts, v. The Metropolitan Nat. Bank, App’lt.
    Judgment affirmed, with costs, on opinions below.

      Leslie W. Russell, for resp’ts; Fisher A. Baker, for app’lt.
   All concur.

Affirming 31 N. Y. State Rep., 937.


text:
    Jas B. Titman et al., App’lts, v. The Mayor, etc., of New York, Resp’t.
    Judgment affirmed, with costs, on opinion below.

      L. Laflin Kellogg, for app’lts; D. J. Dean, for resp’t.
   All concur.

Affirming 32 N. Y. State Rep., 1016.


text:
    John P. Craighead v. The Brooklyn City R’way Co.
    Motion for re-argument denied, with costs.
   No papers.

See 33 N. Y. State Rep., 620.


text:
    Stephen M. Chester v. Francois Henry Jumel et al.

    Motion for re-argument denied, with costs.
   No papers.

See 35 N. Y. State Rep., 4.


text:
    The People ex rel. School Trustees, etc., v. The Board of Town Auditors of Town of Hempstead.
    Motion to dismiss.
   No papers.

Decision of motion postponed until hearing of argument of the cause.

See 35 N. Y. State Rep., 324.


text:
    Filed February 6, 1891.
    Patrick O’Neill, Adm’r, Resp’t, v. Charles Kinken, App’lt.
    Judgment affirmed, with costs.

      Thos. Nolan, for resp’t; Michael J. Kelly, for app’lt.
   All concur.

Affirming 29 N. Y. State Rep., 372.


text:
    Joseph Palladino, App’lt, v. The Mayor, etc., of New York, Resp’t.
    Judgment affirmed, on opinion below, with costs.

      L. Laflin Kellogg, for app’lt; D. J. Dean, for resp’t.
   All concur.

Affirming 31 N. Y. State Rep., 775.


text:
    Jacob Oppenheimer, Resp’t, v. Asahel W. Humphreys et al., App’lts.
    Judgment affirmed, on opinion of Van Brunt, J., below, with costs.

      Clemens J. Kracht, for resp’t; Robert F. Little, for app’lts.
   All concur.

Affirming 31 N. Y. State Rep., 622.


text:
    Henry Sherman, Resp’t, v. Ezra Wormuth, App’lt.
    Judgment affirmed, with costs.

      J. R. Shea, for resp’t; John C. Hunt, for app’lt.
   All concur.

Affirming 51 Hun, 643, mem.


text:
      In re Will of Isabella P. Sarauw, Deceased. Charles Pruyn, Ex’r, etc., App’lt, v. Fred’k W. Sarauw, Resp’t.
    Judgment affirmed, with costs against the appellant.

      W. H. Van Eteenbergh, for app’lt; Charles H. Mills, for resp’t.
   All concur.

Affirming 24 N. Y. State Rep., 88.


text:
    Alice M. Hoar et al., by Guardian, App’lts, v. Wm. H. H. Hoar, Resp’t.
    Judgment affirmed, with costs.

      Henry Daily, Jr., for app’lts; T. F. Bush, for resp’t.
   All concur.

Affirming 15 N. Y. State Rep., 837.


text:
    Mary R. Van Campen, App’lt, v. John B. Ford, Ind., and as Ex’r, Resp’t.
    Judgment affirmed, with costs.

      Henry Daily, Jr., for app’lt; Clarence M. Smith, for resp’t.
   All concur.

Affirming 25 N. Y. State Rep., 464.


text:
    Second Division.
    Filed January 14, 1891.
    Lena Mentz, Resp’t, v. Nathan J. Newwitter, App’lt.
    Motion for re-argument denied, with ten dollars costs.

      M. H. Cardozo, for motion; John J. Linson, opposed.
   See 34 N. Y. State Rep., 207.


text:
    Augusta C. Genet, App’lt, v. The Pres’t, etc., D. & H. C. Co., Resp’t.
    Motion to amend ‘remittitur denied.

      Geo. C. Genet, for app’lt. Frank E. Smith, for resp’t.
   See 34 N. Y. State Rep., 246.


text:
    Jennie V. Bunnell, App’lt, v. Isaac Stern et al., Resp’ts.
    Motion for re-argument denied, with ten dollars costs.

      Louis Marshall and A. L. Sanger, for motion; L. B. Bunnell, opposed.
   All concur.

See 34 N. Y. State Rep., 218.


text:
    James M. Comey, App’lt, v. Wallace C. Andrews, Resp’t.
    Order affirmed, and judgment absolute rendered against appellant, with, costs.

      Matthew Hale, for app’lt; Everett P. Wheeler and James W. Hawes, for
   All concur.

Affirming 14 N. Y. State Rep., 672.


text:
    Robert Douai, App’lt, v. The Metropolitan El. R. Co. et al., Resp’ts.
    Judgment affirmed, with costs.

      Henry Wehle, for app’lt; Brainard Tolles, for resp’ts.
   All concur, except Vann and Parker, JJ., not voting.

Affirming 14 N. Y. State Rep., 264.


text:
    Micajah W. Jackson, Resp’t, v. The City of Rochester, App’lt.
    Judgment affirmed, with costs, but without prejudice to an application by the defendant to the supreme court for such further stay of the issuing of the injunction awarded by it as may, under the circumstances of the case, seem to that court prop. r.

      George A. Benton, for resp’t; Henry J. Sullivan, for app’lt.
   All concur, except Bradley and Haight, JJ., not sitting.

Affirming 7 N. Y. State Rep., 53.


text:
    Thos. H. Rodman, Ex r, Resp’t, v. The City of Buffalo, App’lt.
    Judgment affirmed, with costs.

      Frank C. Ferguson, for resp’t; W. F. Worthington, for app’lt.
   All concur, except Bradley and Haight, JJ., not sitting.

Affirming 15 N. Y. State Rep., 583.


text:
    Leman W. Tyler, App’lt, v. Victor Cooper, Resp’t.
    Judgment affirmed, with costs.

      Watson M. Rogers, for app’lt; C. W. Thompson, for resp’t.
   All concur, except Follett, Ch. J., and Vann, J., not sitting.

Affirming 16 N. Y. State Rep., 545.


text:
    Amelia M. Robinson, App’lt, v. The City of Brooklyn, Resp’t.
    Judgment affirmed, with costs.

      Arthur H. Ely, for app’lt; William T. Gilbert, for resp’t.
   All concur, except Haight, J., not sitting.

Affirming 9 N. Y. State Rep., 716.


text:
    William H. Wood, App’lt, v. The Mayor, etc., of New York, Resp’t.
    Judgment affirmed, with costs.

      James M. & Wm. M. Lyddy, for app’lt; D. J. Dean and John J. Delany, for resp’t.
   All concur.

Affirming 13 N. Y. State Rep., 304.


text:
    Harvey Fikes, Resp’t, v. John Bouck, App’lt.
    Judgment affirmed, with costs.

      Wendell & Van Deusen, for resp’t; Francis & Wm. J. Kernan, for app’lt.
   All concur.

Affirming 10 N. Y. State Rep., 132.


text:
    Filed January 22, 1891.
    Michael McQuigan, Resp’t, v. The D., L. & W. R. R. Co., Appl’t.
    Motion for re-argument denied, with ten dollars costs.
   No papers.

See 34 N. Y. State Rep., 618.


text:
    John Travis et al., App’lts, v. Bernard Travis, Resp’t.
    Motion to amend remittitur denied, with ten dollars costs.
   No papers.

See 34 N. Y. State Rep., 32.


text:
    The Yates Co. Nat. Bank of Penn Yan, App’lt, v. Mason L. Baldwin, Resp’t.
    Judgment affirmed, with costs.

      William T. Morris, for app’lt; M. A. Leary, for resp’t.
   All concur, except Potter, J., dissenting, JJ., not

Affirming 5 N. Y. State Rep., 441.


text:
    Laura A. Knowles, Resp’t, v. William J. Erwin, App’lt.
    Judgment affirmed, with costs.

      Frederick W. Noyes, for resp’t; M. H. Peck, for app’lt.
   All concur, except Bradley and Haight, not

Affirming 5 N. Y. State Rep., 421.


text:
    Thomas M. Peters, Resp’t, v. George W. Carleton, Impl’d, App’lt.
    Judgment affirmed, with costs.

      John A. Beall, for resp’t; James A. Deering, for app’lt.
   All concur.

Affirming 15 N. Y. State Rep., 980.


text:
    Filed February 3, 1891.
    George A. Follonsbee, as Adm’r of Edwin Bean, Dec’d, v. The American Loan & Trust Co.
    Motion to amend remittitur denied.
   No papers.

See 34 N. Y. State Rep., 630.


text:
    Ann Keane, Resp’t, v. The Village of Waterford, App’lt.
    Case ordered stricken from the preferred calendar and to be given its proper number on the general calendar, without costs.
   No papers.

See 39 N. Y. State Rep., 34.


text:
    Augustus A. Levey, as Trustee, et al., App’lts, v. The Union Print Works, Resp’t.
    Motion to advance case from 805 to its proper number on the preferred calendar granted. ■
   No papers.

See 34 N. Y. State Rep., 900.


text:
    Mary Duffy, Resp’t, v. Catharine Duffy, Impl’d, App’lt, and Susan Daly et al., Resp’ts.
    Motion to substitute denied, without prejudice to the right of any party to renew the motion after the appointment of an administrator of Catharine Duffy, and without costs.
   No papers.

See 19 N. Y. State Rep., 338.


text:
    Supreme Court—General Term—First Department.
    Filed December 29, 1890.
    The People ex rel. Joseph A. Gardner v. John McClave et al.

   Further return ordered as to the production of the witnesses.


text:
    August Albertz, App’lt. v. Semon Bache, Resp’t.
   Motion denied, with ten dollars costs.


text:
    Patrick Kenny, Resp’t, v. The Ocean Steamship Co., App’lt.
   Motion denied, with ten dollars costs.


text:
    Charles A. Clegg, App’lt, v. The New York Newspaper Union et al., Resp’ts.
   Motion denied.


text:
    In the Matter of the Judicial Settlement of the Accounts of Hannah McGowan, Ex’rx of John F. Wallace, Dec’d.
   Motion "denied, with ten dollars costs to abide final event.


text:
    James C. Quinn et al., Resp’ts, v. Edward McDonald, App’lt.
   Order modified by striking therefrom the words “and the case and appeal taken herein declared abandoned,” and as modified the order affirmed, with ten dollars costs, and disbursements of appeal, to be paid by respondents to appellants.


text:
    James N. Platt, Resp’t, v. Andrew H. Mickle et al., App’lts.
   Order modified by requiring respondent to give security for costs.


text:
    General Term—Second Department.
    Filed December 8, 1890.
    Mary Hoskins, Adm’rx, v. James Stewart.
   Motion denied.


text:
    Julia Roach v. The Long Island R. R. Co.
   Appeal withdrawn.


text:
    John Powers v. George B. Valentine.
   Judgment affirmed for non-submission of papers. Dykman, J., not sitting.


text:
    Orlando Hand v. Abram S. Hewitt.
   Judgment affirmed for non-submission of case under order, with costs.


text:
    Carl E. R. Heyne v. John Doerfler, as Ex’r.
   Motion denied for re-argument and leave granted to appeal to court of appeals.


text:
    General Term—Fifth Department.
    Filed January 23, 1891.
    In the Matter of the Application of The New York, Lackawanna & Western Railway Co., App’lt, to acquire lands of Harriet A. Bennett et al., Resp’ts.
   Appeal dismissed, with ten dollars costs and disbursements, on the ground that the appellant accepted a substantial concession made by the respondents as a condition of obtaining the order appealed from.


text:
    Thurlow W. Abell et al., App’lts and Resp’ts, v. Alonzo Bradner et al., App'lts and Resp’ts.
   Ordered, that the case be referred back to the same referee, previously appointed herein, to take such proofs as may be offered, and to ascertain and report to this court what avails of personal property, if any, have come to the hands of the defendant Bradner, as administrator of the estate of David H. Abell, deceased, which are applicable to and should be charged against the payment by him of the equitable liens and claims upon the real estate in question which are allowed by the judgment from which these appeals are taken. Order to be settled by the presiding justice.


text:
    In the Matter of the Judicial Settlement of the Accounts of J. Moreau Smith and Emma Herrick, as Executors, etc., of Lewis R. Herrick, Deceased.
   Decree of the surrogate of Monroe county affirmed, on the opinion of the surrogate, 33 N. Y. State Rep., 1033, with costs to the respondent, payable out of the fund.


text:
    Peter Grant, Resp’t, v. The P. & N. Y. Canal & R. R. Co., App’lt.
   Orders appealed from affirmed, with costs. Dwight, P. J., taking no part.


text:
    Ashabel A. Miller, Resp’t, v. The Village of Genoa, App’lt.
   Judgment and order, appealed from affirmed.


text:
    John J. Weismiller, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.
   Judgment and order appealed from reversed, upon payment by the defendant of the costs of the circuit at which the case was tried, and of this appeal, and a new trial granted.


text:
    Mina Seymour, Resp’t, v. The Village of Salamanca, App’lt.
   Judgment and order appealed from affirmed.


text:
    Andrew H. Frank, Resp’t, v. George W. Batten, App’lt.
   Judgment and order appealed from affirmed, on opinion in the same case on former appeal. 49 Hun, 91; 17 N. Y. State Rep., 476.


text:
    The People, Resp’ts, v. Nathan Colgrove, App’lt.
   Order of court of sessions of Livingston county, affirming that of the justice of the peace, affirmed, with costs.


text:
    The Pennsylvania Mutual Insurance Co., Resp’t, v. Edward C. Bradley, App’lt.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Augusta Hereth, App’lt, v. Samuel Schuyer, Resp’t.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Jacob Hereth, App’lt, v. Samuel Schuyer, Resp’t.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    The People ex rel. Henry T. Noyes, Resp’t, v. The Board of Canvassers of Seneca County, App’lts.
    Order appealed from affirmed, with costs.
   Affirming 34 N. Y. State Rep., 8.


text:
    The People, Resp’ts, v. Ed. N. Anderson, App’lt.
   Judgment and conviction affirmed and the case remitted to the court of sessions of Chautauqua county to proceed therein.


text:
    Wm. B. Wilcox, Resp’t, v. Orasmus Wilcox et al., App’lts.
   Motion to dismiss appeal granted, with ten dollars costs.


text:
    Matter of Jane Le Breton, an alleged Lunatic.
   Motion to dismiss appeal denied.


text:
    Matter of the Rochester & Glen Haven R. R. Co. to Acquire Lands of Griebel.
   Order amended so as to read as follows: Order of special term reversed, with costs of this appeal as in an action, and application denied, with costs as in an action.


text:
    The People, Resp’ts, v. William Trimble, App’lt.
   Motion to dismiss the appeal granted unless the appellant serve motion papers on appeal within twenty days; if so served, then the motion is denied.


text:
    In the Matter of the Application of the Rochester Electric Railway Company, App’lt, to Acquire Lands of Jennie S. Wilkin et al., Resp’ts.
   Motion to correct order granted.


text:
    Margaret McDermott, Resp’t, v. James Conley, App’lt.
   Motion for re-argument denied.


text:
    Albertus Larrowe, App’lt, v. Herman J. Lewis et al., Resp’ts.
   Motion for re-argument denied. Leave to appeal to the court of appeals granted.


author: Bartlett, J.

text:
    Louise Dudley Carter, App’lt, v. William J. Ferguson, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Injunction—Breach op contract.
    To warrant the granting of a preliminary injunction to restrain the violation of a contract it should be made to appear that the plaintiff has no adequate remedy at law.
    2. Same—Actors.
    While an injunction may be granted to prevent actors from performing for other parties when they have undertaken to play only for the plaintiff, the exercise of jurisdiction to grant the same should be limited to cases where the artistic abilities of the defendant are exceptional so that his place cannot be readily supplied.
    Appeal from order denying motion for a preliminary injunction to restrain the defendant from breaking a contract binding him to perform as an actor exclusively for the plaintiff.

      Abe H. Hummel, for app’lt; A. J. Dittenhoefer, for resp’t.
   Bartlett, J.

In order to warrant the granting of a preliminary injunction to restrain the violation of a contract, made to appear that the plaintiff has no adequate remedy at law. The inadequacy of the legal remedy is the test as to whether the defendant should or should not be restrained in the class of cases to which the present suit belongs. The English courts and our own have frequently granted injunctions, pendente lite, to prevent ■actors from performing for other parties when they have undertaken to play only for the plaintiff; but the exercise of this jurisdiction has usually been confined, and ought in our judgment always to be limited, to cases where the artistic abilities of the defendant are exceptional, so that his place cannot readily be supplied ; for it would seem to be only under such circumstances that irreparable damage can be occasioned to the plaintiff.

As is well said by Mr, Pomeroy: “Where a contract stipulates for special, unique or extraordinary personal services or acts, or for such services or acts to be rendered or done by a party having special, unique or extraordinary qualifications, as for example, by ■an eminent actor, singer, artist and the like, it is plain that the remedy at law of damages for its breach might be wholly inadequate, since no amount of money recovered by the plaintiff might enable Mm to obtam the same or the same kmd of services or acts elsewhere, or by employing any other person.” 3 Pomeroy’s. Equity Jurisprudence, § 1343. The general term of the third department, commenting upon . this passage, points out that tl^e jurisdiction to interfere by injunction approved therein is confined to cases of special, unique and extraordinary qualifications on the part of the defendant, and Learned, P. J., remarks: “It can readily be seen that the court might restrain by injunction a great, actor from playing at another theatre in violation of his contract, while it would not restrain? a salesman from quitting his employer before his contract had expired, even though under the contract he were to be paid a percentage on sales.” Bronk v. Riley, 50 Hun, 489; 20 N. Y. State Rep., 401.

How it is in no wise derogatory to the defendant in this case to* say that he is not shown to be actor of special, unique or extraordinary qualifications. His own counsel on this appeal expressly asserts that the defendant is not a star or attraction, of the company, or even a prominent member thereof.

However capable an actor the defendant may be, he has not yet achieved distinction. He does not seem to have been engaged to perform the part of what is known as the leading man in the plaintiff’s company, his name appearing only third in the published list of the performers who were to act with Mrs. Carter. The affidavits do not satisfy us that his failure to keep his contract with her, or his appearance in violation of that contract at another theatre, has done or will do her any irreparable injury, or any damage incapable of being ascertained in an action at law. For these reasons, without considering the others urged by counsel, or referred to by the court below, we think the application for an injunction was properly denied.

The order appealed from must be 'affirmed, with ten dollars costs and disbursements.

Yak Brunt, P. J., and Barrett, J., concur.


author: Barrett, J.

text:
    John M. Knox et al., Ex’rs, Resp’ts, v. The Metropolitan Elevated R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Pleading—Parties.
    Where the averments in a complaint are sufficient to affix to the plaintiffs their proper representative character, an erroneous description thereof in the caption is immaterial.
    2. Will—Trust—Suspension oe power oe alienation.
    The absolute power of alienation is not unlawfully suspended by the consolidation of an estate into one trust, so long as it is a trust for distribution and payment to each beneficiary, or class of beneficiaries, upon the event specified in the will. In such'case, the trustees are vested with the whole estate, just as tenants in common of a piece of real estate are so vested, but the legal rights of each cestui que trust are separate and distinct.
    3. Trespass—Action by executors and trustees.
    In an action brought by the executors and trustees under a will, the right to damages for a continuing trespass is not affected by the death, pending the action, of one of the cestuis que trust under the will, where such damages sought are for trespasses during the lifetime of the cestui que trust.

      4. Same—Railroads.
    In an action brought by executors and trustees for past damages sustained by the construction and operation of an elevated railroad, and for an alternative injunction to restrain its further maintenance and operation, plaintiffs may recover as executors for the loss of rental value in the testator’s lifetime, and as trustees in their executorial capacity vested with the fee, such damage as resulted from the loss of rental values after testator’s death.
    5. Same—Limitation.
    There can be no limit to an action for a continuing trespass, whether such actions be legal or equitable, short of the twenty years from which a grant is presumed.
    ■6. Same.
    Where such a structure as the elevated road is authorized by law, the property owner cannot complain of it per se, and his only remedy is for the failure to offer him some due compensation, or to condemn his property under the right of eminent domain.
    7. Same—Estoppel.
    Acquiescence by property owners in the construction of the elevated road is not acquiescence in the appropriation of their easements without just compensation.
    8. Same.
    Property owners injured by the construction of the elevated roads, as they cannot maintain ejectment for the easements taken, nor to secure the value of the easements in actions for trespass for the damages sustained day by day, are remitted to an action in equity to restrain the continuous trespass as the only remedy whereby just compensation for the property taken can be compelled.
    9. Judgment.
    A judgment will not be reversed because of inconsistent conclusions of law, where the judgment directed to be entered is in accordance with the correct conclusions of law on the facts found.
    Appeal from a judgment rendered at special term in favor of the plaintiffs for past damages sustained by the construction and operation óf the elevated railroad, and, for an injunction nisi to restrain its further maintenance and operation.

      E. C. James, for .app’lts; J. M Burrill, for resp’ts.
   Barrett, J.

It is contended that the plaintiffs cannot maintain this action because in the caption of their complaint they have styled themselves “ as executors,” and not “as trustees.” In the body of the complaint, however, they set forth the testator’s will, and allege the' devise of the property in question (under the residuary clause) to his executors in trust to divide the same into eight equal parts, and to hold one of said parts for the benefit of each of eight grandchildren during his or her natural life, and to receive the rents, issues and profits thereof, and to apply the same to the use of such grandchild during his or her . natural life. It was proper, under such circumstances, to describe the plaintiffs as “ executors.” They are ex officio invested with the title for trust purposes, and as such they are entitled to maintain the action. "Were it otherwise, the averments in the complaint are sufficient to affix to the plaintiffs their proper representative character, and when that appears in the body of the complaint an erroneous description in the caption is immaterial. Stilwell v. Carpenter, 2 Abb. N. C., 238; Beers v. Shannon, 73 N. Y., 297.

It is also claimed that the plaintiffs did not take title under Mr. Clark’s will, or rather that their title was deferred until the actual partition of the estate into eight parts, and that until such division the fee passed to the heirs-at-law, subject to the execution of the power to divide, etc. This is an inaccurate view of the legal effect of this will. Under the sixth clause, the residue of the estate, real and personal, was devised to these executors “ in trust to receive the rents, issues and profits thereof, and h> apply the same to the use of Mr. Clark’s grandchildren during their respective natural lives, one share being held in trust for each grandchild.” Under this clause the executors took the whole estate, in law and in equity, subject only to the execution of the trust. This is entirely consistent with the creation of eight separate trus't estates. In law, the separation of the trust estates is effected by the provisions of the will, and this is not dependent upon an actual division or partition in ‘specie. Prior to such actual division or partition, the executors in their trust capacity are vested with each of the undivided eight shares in trust for each of the eight grandchildren, and thus they are vested with the whole. The absolute power of alienation is not unlawfully suspended by the consolidation of an estate into one trust, so long as it is a “ trust for distribution and payment to each beneficiary or class of beneficiaries upon the events specified in the will.” Wells v. Wells, 88 N. Y., 332, 333; Monarque v. Monarque, 80 id., 324; Stevenson v. Lesley, 70 id., 515. In such a case the trustees are vested with the whole estate, just as all the tenants in common of a piece of real estate are so vested, but the legal rights of each cestui que trust are separate and distinct.

The plaintiffs’ rights are not affected by the death of one of these eight grandchildren (Mary G. Leroy) subsequent to the commencement of this actipn. Damages were not awarded to the plaintiffs for trespasses committed after Mary C. Leroy’s death. Such damages were limited to the time of the commencement of the action. The plaintiffs were clearly entitled to all these damages. As executors, they were entitled to such as resulted from loss of rental values in the testator’s lifetime. As trustees, in their executorial capacity, vested with the fee, they were entitled tO' such as resulted from loss of rental values after the testator’s death. And in such an action as the present they could recover in both capacities. Shepard v. Manhattan Railroad Company, 117 N. Y., 443; 27 N. Y. State Rep., 705. Upon the issues as they stood at the time of the trial, they were also entitled to an injunction. There was no plea of a defect of parties, and no injustice was done by a refusal to permit the cause to stand over to enable the-defendants to raise this technical point.

Upon the death of Mary C. Le Eoy the undivided share held in trust for her passed under Mr. Clark’s will to the other seven grandchildren. The court provided that the injunction, to which the plaintiffs were absolutely entitled under the pleadings as they stood, should not go into effect unless, upon the defendants’ tender of the adjudged value of the easements, there was delivered to them a proper conveyance duly executed by all of these seven grandchildren, as well as by the executors and trustees. The court thus made ample and even superfluous provision against any possible prejudice to the defendants resulting from the failure to make these seven grandchildren parties. We say superfluous, because the plaintiffs, even after the vesting of Mary C. Le Roy’s share in these seven grandchildren, had a power of sale entirely sufficient to confer upon the defendants a perfect title to ‘these easements.

There is nothing in the point as to the statute of limitations. The trespasses are continuous and a cause of action accrues daily. The equitable cause of action which accrued ten years ago resulted from the continuous trespasses then committed. The present cause of action is based upon the continuous trespasses of to-day. There can be no limitation to such actions, whether legal or equitable, short of the twenty years from which a grant is presumed.

There is no greater force in the claim of acquiesence, and the cases cited by the appellants on that head (including specially Hentz v. Long Island Railroad Company, 13 Barb., 655; McAulay v. Western Vermont Railroad Company, 33 Vermont, 311; Goodwin v. C. & W. Canal Company ,18 Ohio State, 169) are entirely inapplicable. They proceed either upon the doctrine of estoppel or upon the principle that an injunction should not be granted until all the ordinary means for obtaining indemnity have failed. The rule governing estoppels is clearly inapplicable. To constitute an equitable estoppel there must have been some act or admission by the party sought to be estopped inconsistent with the claim he now makes and done or made with the intention of influencing the conduct of another, which he had reason to believe would and which did in fact have that effect. Silence will not estop unless there is not only a right but a duty to speak. N. Y. Rubber Company v. Rothery, 107 N. Y., 310; 12 N. Y. State Rep., 53. In Campbell v. Seaman, 63 N. Y., 568, it was held that no acquiescence short of twenty years will bar one from complaining of a nuisance, unless by some act or omission he has induced the party causing the nuisance to incur large expenditures or to take some action upon which an estoppel may be based See also Haight v. Price, 21 N. Y., 246. In Chapman v. City of Rochester, 110 N. Y., 277; 18 N. Y. State Rep., 133, the question of estoppel by acquiesence was also considered. The city had there constructed sewers in such a manner as to render the water in a creek above the plaintiff’s land unfit for use. Danforth, J., speaking for the court, said that the plaintiff was not estopped by acquiescence in the proceedings of the city in devising and carrying out its system of sewerage. “ It does not appear,” he observed, “ that the plaintiff in any way encouraged the adoption of that system, or by any act or word induced the city authorities to so direct the sewers that the flow from them should reach his premises.”

The defendants’ structure, being authorized by law, is not a nuisance, but for that very reason the rule enunciated in Campbell v. Seaman, and Chapman v. City of Rochester, should be applied, and applied even more stringently than in the case of a nuisance. Where the structure is authorized by law the property owner cannot complain of it per se. His only complaint is of the failure to offer him due compensation or to condemn his property under the right of eminent domain. In the present instance, it cannot truly be said that the property owners stood by and permitted large or any sums to be expended on the faith of their apparent acquiescence. Acquiescence in what ? In the building of the road? Yes, but even as to that the word resignation would better express the property owner’s condition. Hot, however, in the taking of their property without compensation. The elevated railroad was constructed with the clear understanding that there was no such acquiescence. It was constructed, as already suggested, under legislative authority, authority claimed to be sufficient to entitle the promoters of the enterprise to appropriate these easements without compensation. The property owners saw the road built regardless of their wishes and in defiance of their rights. It has been repeatedly held, and it is sound doctrine, that failure to assert their rights while the road was in process of construction did not under the circumstances work an estoppel The promoters of the railroad proceeded in reliance upon what they supposed to be the law, see Powers v. Manhattan Railway Company, 120 N. Y., 178; 30 N. Y. State Rep., 584, not at all in reliance upon the property owners’ inaction. And the latter’s acquiescence was, as we have seen, only in the construction of the road under legislative authority, net in the appropriation of their easements without just compensation. The road was built in the year 1878, and it was not until the year 1882 that the court of appeals finally decided that compensation was a right. Story v. N.Y. Elevated Railway Company, 90 N. Y., 122. Even after this decision, the property owner had no direct means of compelling compensation. He cannot apply under the act with regard to condemnation proceedings, nor can he compel the corporation to apply. He certainly cannot maintain ejectment for the easements of light, air and access. Hor can he secure the value of his easements in actions of trespass for the damages sustained day by day. Pond v. Metropolitan Elevated Railway Company, 112 N. Y. 186; 20 N. Y. State Rep., 479. “ A recovery of judgment for damages for a trespass or the invasion of an easement,” said Andrews, J., in the Pond case, “ does not operate to transfer the title of the property to the defendant, either before or after satisfaction, nor does it extinguish the easement.”

The only remedy then whereby just compensation for the property taken can be compelled is an action in equity to restrain the continuous trespasses. ' To deprive the plaintiffs of an injunction nisi would therefore be to leave them remediless in that regard. It would be to admit the existence of a distinct wrong without a specific remedy, and it would also be to permit the possibilty of the wrong ripening by presumption into a right It was held in Campbell v. Seaman, supra, that under our present system the right to an injunction in a proper case is just as fixed and certain as the right to any other provisional remedy. It is no longer a matter of grace, “ except,” as Bari, J., observed, “ that it rests in the sound discretion of the court, and that discretion is not an arbitrary one. It can rightfully be demanded to prevent irreparable injury, interminable litigation and a multiplicity of suits.”

We think, therefore, that the remedy by injunction was properly granted in the present case.

The only other point calling for special consideration is that based upon the seeming inconsistency in the conclusions of law found by the learned judge at special term.

In the fifteenth and sixteenth findings of fact, the learned judge finds the diminution of the rental value of the plaintiffs’ .premises, caused by the erection, maintenance and use of the defendants’ railroad, from the 14th day of J une, 1883, to the 14th day of June, 1889. In the first conclusion of law he finds that the plaintiffs are entitled to recover from the defendant the damages awarded by these findings of fact

At the request of the defendants, however, he found in the fourth conclusion of law that the plaintiffs are not entitled to recover any damages in this action which accrued prior to the death of their testator on the 11th of July, 1884. This was plainly an inadvertence. The learned judge had already found, and correctly, that the plaintiffs were entitled to recover these very damages. If the inconsistency had been in the findings of fact,' the appellants might have invoked the rule that where such findings are irreconcilable, those most favorable to them should be taken. Redfield v. Redfield, 110 N. Y., 673; 18 N. Y. State Rep., 560. There is, however, no inconsistency in the facts found, and upon these there can be no doubt as to the proper conclusion of law. It is that the plaintiffs are entitled, as found in the first conclusion of law, to recover the sum specified in the fifteenth and sixteenth findings of fact We agree with the superior court in Welsh v. Metropolitan Elevated Railway Company, 57 Super. Court Rep., 411; 29 N. Y. State Rep., 511 (Ingraham, J., writing the opinion), that, “no principle requires us to reverse a judgment because of inconsistent conclusions of law when the judgment directed to be entered is in accordance with the correct conclusions of law on the facts found.”

The sums awarded for past damages and allowed for the value of the easements were reasonable. We have examined the evidence on this head and see no reason for disturbing the findings of the learned judge at special term.

And we are at a loss to understand what the appellants mean by the assertion in their brief that these sums have been awarded arbitrarily and without evidence to sustain them. Such assertions are gratuitous and without justification in the record. The judgment should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.