author: Haight, J.

text:
    CHARLES H. WEBSTER, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURG RAILROAD COMPANY, Appellant.

      Hegligence — when it is not negligence for a passenger to enter a baggage ear to smoke— •when that question, as well as one relating to a ear being blown upon the track, should be left to the jury.

    This action was brought to recover damages .for personal injuries sustained by the plaintiff while riding in a baggage car in one of the defendant’s trains. The plaintiff left the passenger car and went into the baggage car to smoke, sitting on a trunk, and finding there the baggageman and another passenger. While he was there the conductor came in and had a conversation with him as to the train being late. The train ran into a freight car,which had been blown from a side trackupon the main track, and the plaintiff received the injuries to recover damages for which this action was brought. The sleeping car of the train on which the plaintiff was a passenger went through the passenger car, killing eight persons and injuring others.

      Held, that the question as to whether the plaintiff was guilty of contributory negligence in going into the baggage car was properly left to the jury, and that a verdict in his favor would not be disturbed.

      Held, further, that the question as to whether or not the defendant was chargeable with negligence in neglecting to properly secure the freight car left standing on the side track was, on the evidence, properly left to the jury.
    Appeal from a judgment, entered upon a verdict rendered at tbe Monroe Circuit, and from an order denying a motion for new trial made upon tbe minutes.

      Daniel R. Chamberlain, for tbe appellant.

      John M. Beehley, for tbe respondent.
   Haight, J.

This action was brought to recover damages for injuries claimed to have been sustained by tbe plaintiff in a collision on defendant’s road, at Carylon, on tbe 27th day of July, 1883. The plaintiff was a passenger upon tbe defendant’s train, consisting of two engines, one baggage car, one day coach and nine sleeping cars. After leaving Lewiston tbe plaintiff rode in tbe day coach until tbe train was within about ten miles of Carylon, when he went into tbe baggage car to smoke. He entered it by tbe rear door next to tbe day coach, and sat on a trunk. The baggageman and another passenger were there smoking. After the plaintiff entered the conductor came in and had a conversation with him in reference to the train being behind time. A short distance east of Carylon depot the train ran into a box freight car standing upon the main track, breaking it up and tipping it over in front of the first engine, on the north side of the track. The first engine was thrown from the track and tipped over on the same side, directly behind the freight car; the second engine was thrown bottom side up and across the track; the baggage car was thrown on top of the engine lengthwise ; the day coach was thrown across the1 track by the side of the second engine; the first sleeping car went through the passenger coach and stove it up, and eight persons were killed and others-injured. The plaintiff received injuries in his back and shoulder, for which the jury has found a verdict in his favor for the sum of $4,500.

At the conclusion of the plaintiff’s evidence the defendant moved for a nonsuit, upon the ground that the evidence failed to establish negligence on the part of the defendant, and also upon the ground that it appeared from the evidence that the plaintiff was guilty of contributory negligence. The motion was denied, and the defendant excepted. When the evidence was closed a motion was made for the direction of a verdict upon the same grounds, which was refused, and an exception taken. These exceptions present the only questions which we are called upon to consider upon this appeal. It appears from the evidence that at the time the accident occurred it was very dark and stormy; that the engineer in charge of the first engine did not discover the freight car upon the main track until he was within three or four rods of it; that he immediately blew the whistle, shut off steam, and reversed his engine, and that the crash immediately followed. It further appeared that there were no air-brakes upon the train ^ that the cars were supplied with the old hand-brakes, but we are of the opinion that no negligence chargeable in this regard contributed to or caused the injury, for it distinctly appears from the testimony of all the witnesses who have given evidence upon the subject, that had the train been supplied with air-brakes they could not have been set in time to prevent the collision or to have lessened its effect. It further appeared from the evidence that tbe day before tbe accident tbe box freight car was placed upon a side tract and left standing there; that at tbe time it was shoved onto tbe side tract, one Marvin was in charge of tbe car as a brateman; that be was seen to set tbe brate and get down off tbe car; it remained standing upon the side tract until after seven o’clock of the evening of tbe accident; that shortly thereafter a heavy wind and thnnder storm occurred, after which this car was found out on the main tract by the engineer in charge of the first engine, under the circumstances already related. Evidence on the part of the defendant was given tending to show that the wind storm was one of great- violence, whilst on the part of the plaintiff evidence was given tending to show that it was an ordinary storm and did not prostrate the fences or growing grain in that vicinity. William E. Rogers, a civil engineer and one of the railroad commissioners of the State, testified that he had made certain experiments upon a similar ear- and tracks, and found that when the brakes were tightly set upon the wheels, it would take from 1,800 to 2,000 pounds traction to start the car; that the surface of the car was about eighty-five square feet and that the wind would have to exert a pressure of about twenty-three pounds to the square foot in order to move the car under such circumstances, and that the wind would have to attain a velocity of from sixty to eighty miles an hour to produce that amount of pressure. The brakeman Marvin could not be found, and consequently his testimony was not given as to how tightly he set the brakes. A rule of the company required the station agent, before leaving at night, to see that all standing cars were out. of the way and secured against a possibility of being blown out of the side track. The station agent left the station sometime before the storm; he did not go to the box car to see whether the brakes were firmly set or not, but observed that the chain was tight and that the brakes were against the wheels.

Under these circumstances the court submitted to the jury the question as to whether or not the defendant was guilty of negligence in not properly securing the box car upon the side track, and we think properly. It is true that the burden of showing that the accident was occasioned through the negligence of the defendant, and that the plaintiff was free from contributory negligence was upon the plaintiff, and that it is not necessarily negligent for a company to omit performance of its own rule; but it was clearly the duty of the company to so secure the box car upon the side track that it could not be run out upon the main track by any of the ordinary wind storms liable to occur in that locality, and failing to do this it would be chargeable with negligence. The evidence was of that character that the court could not say, as a matter of law, that the brakes were properly set upon this car, for had they been, according to the testimony of the witness Rogers, it would have required a wind storm of unusual velocity and power to have moved the car out onto the main track.

The question as to whether or not the plaintiff was guilty of contributory negligence is one of more difficulty. The statute provides that “ in case any passenger on any railroad shall be injured while on the platform of a car or on a baggage, wood or freight car, in violation of the printed regulations of the company, posted up at the time in a conspicuous place inside of its passenger cars then in the train, such company shall not be liable for the injury, provided said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passengers.” (Laws of 1850, chap. 140, § 46.) It does not appear that any printed regulations of the company were posted in its cars, and consequently the plaintiff cannot be said to have violated any of the regulations of the company in going into the baggage car. Ordinarily the baggage car is a place of greater danger than the passenger coach, but on this occasion it turned out otherwise, for the first sleeping ear smashed entirely through the passenger coach breaking it in two and killing a number of the passengers. Undoubtedly, a passenger who voluntarily rides in a baggage car or other known place of danger, in violation of the known rules of the company, when there is room in the passenger coaches provided for his accommodation, and is injured in consequence of such violation, cannot recover damages therefor. (2 Wood’s Railway Law, § 804, and authorities there cited.) But in this case there were no rules of the company prohibiting passengers from riding in the baggage car; on the contrary, they appear to have been permitted to so ride by the agents of the company in charge of the train. Another passenger was nding in the baggage car at the time tbe plaintiff entered. The baggageman was there and shortly after the conductor entered. The conductor conversed with the plaintiff but does not appear to have warned him against riding in that car.

In the case of Haley v. Earle (30 N. Y., 208) it was held that the general rule in actions for damages arising from negligence, is that the defendant’s negligence makes him liable unless the plaintiff has done something to contribute to the accident. If he has he cannot recover.

In the case of Carroll v. The New York and New Haven Railroad Company (1 Duer, 571) it was held that a passenger injured by two trains of cars, running in opposite directions, coming in collision, is entitled to recover, although at the time of the collision he was in an apartment of the baggage car, notwithstanding the fact that he knew the position to be much more dangerous in the event of a collision than a seat in the passenger car, and that, too, though the result may have demonstrated that he could not have been injured if he had been in a passenger car. This case is very much in point and, so far as we have been able to discover, it has not been criticised or overruled, but is recognized as correct in the case of Eaton v. The Delaware, Lackawanna and Western R. R. Company (57 N. Y., 396), and by Wood in his recent work on Railway Law in section 304 (supra).

In the case of Nolan v. The Brooklyn City and Newtown Railroad Company (87 N. Y., 63), it is stated, in the opinion of the court, that “it is settled that independent of the mandate of the statute, * * * it is not, even in the case of steam cars, negligence per se for a passenger to stand on the front platform of a moving car.”

In the case of Werle v. The Long Island Railroad Company (98 N. Y., 650), it was held that the fact that a passenger, failing to find, a seat and having none pointed out to him by any employee of the company, takes a position on the platform of the car where other passengers are riding, and without objection from any employee, and is thrown from the car by a sudden lurch given it by the great and increased speed with which the train is run when turning a curve, does not, as matter of law, establish contributory negligence.”

In the case of Goodrich v. The Pennyslvania emd New York Canal and Railroad Company (29 Hun, 50), we were called upon to determine in some respects a similar question to the one now under consideration. We then reached the conclusion that under the circumstances of that case the question of contributory negligence was one for the jury. In that case we regarded the evidence tending to establish contributory negligence even stronger than the evidence presented in this case. Whilst the conclusion in that case was reached with some hesitancy, we are still inclined to the opinion that it should be followed in this case, and that the question of contributory negligence was one properly submitted to the jury.

The judgment and order should be affirmed.

Bjkadlet and Coelett, JJ., concurred.

J ndgment and order affirmed.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    JOHN P. MAGOVERN and Others, Appellants, v. EVOLIN B. ROBERTSON and Others, Respondents.
    Partnership— when a person sha/ring in the profits is not liable as a partner.

    In this action, brought to recover the value of goods, wares and merchandise for which the defendants were claimed to he liable as partners, it appeared that the defendant Evolin Robertson entered into a written agreement with the other defendants by which she agreed to put a stock of goods, worth at least $3,000, in the store of one John R. Robertson, her husband, in the village of Busti, and to induce him to manage the store. The other defendants agreed to indorse her paper to the amount of $3,000, which sum was to go into the business, and they were to have an interest at all times in the goods in the store to the amount of their indorsement, subject, however, to no liability except such indorsement.
    At the end of a year an invoice was to be taken in the presence of two of the defendants, and the defendants were to be paid one-third of the net profits, if any, for their indorsement and general interest in the business, and if at any time during the year a majority of the parties of the second part should so request in writing, an invoice of the stock of goods should be taken, and if it was ascertained that any considerable loss had been sustained, and they so demanded, then the said Evolin was to turn over a sufficient amount of the goods to secure them against any liability for their indorsement, or was to cause the paper to be canceled.

      Held, that the agreement did not make the defendants partners of Evolin, as between themselves or as to creditors.

      Appeal from a judgment in favor of the defendants, entered in Chautauqua county, upon the report of a referee.

      William II. Henderson, for the appellants.

      A. G. Piekard, for the respondents.
   Haight, J.:

This action was brought to recover for goods, wares and merchandise, consisting of boots, shoes and rubbers, of the value of $1,281.59, alleged to have been sold by the plaintiffs to the defendants, as •copartners. The defendant, Evolin B. Robertson, does not answer. The other defendants deny that they were copartners.

The referee, among other things, has found that the defendant Evolin B. Robertson, in or about the month of April, 1881, proposed to the other defendants to open a store at Busti for the sale -of dry goods, groceries and such other goods as are usually sold in a village or country store ; that she said to the other defendants that she had not sufficient means with which to engage in such business ■unaided, and desired assistance in establishing the same; that thereupon the following contract was executed:

Memoranda of an agreement made and entered into this 30th day of April, 1881, by and between Evolin B. Robertson, of the village of Mayville, Chautauqua county, N. Y., of the first part, and M. Mattison, W. B. Martin, C. H. Johnson, Oren Stoddard, James Moon, W. Holt, A. C. Pickard, R. D. Bush, H. D. Stod-dard, A. M. Rinehart, Jackson and Hollenbeck, W. H. White, A. W. Smith, Mark Jones, J. H. Wood, J. W. Broadhead, of the town of Busti, said county, of the second part, witnesseth: That for and in consideration of the covenants hereinafter expressed the said party of the first part hereby covenants and agrees, to and with the said parties of the second part, to put in a stock of dry goods, groceries, hats, caps, boots and shoes, etc., in what is known as the John R. Robertson store building, situate in Busti village; said stock to be at least of the value of three thousand dollars, to be replenished from time to time as it runs below that amount; the said party of the first part to procure the services of John R. Robertson to manage said store and devote his time thereto to the interests of the business. The parties of the second part agree to indorse the paper of the said party of the first part to the amount of two thousand dollars, which sum is to go into the business, and the parties of the second part are to have an interest at all times in the goods in said store to the amount of their indorsement, subject, however, to no liability except such indorsement. At the end of one year the party of the first part is to cause an invoice of the goods on hand to be taken in the presence, if so required, of two of the parties of the second part, and the net profits of said business, including all commissions received for buying hides, butter,[cheese, wool and ocher produce received by said manager, and after deducting insurance on goods, fuel, lights, additional clerk hire, freights and other necessary expenses of the business, to be divided as follows: Two-thirds of said net profits to belong to the party of the first part in consideration of her capital and management of said business through said J. R. Robertson, and the use of said store building, and the other one-third of said net profits are to be paid to the said parties of the second part, fro rata, in consideration of their said indorsement ' and their general interest in the business. It is further stipulated by and between the said parties, that at any time previous to the expiration of said year, when a majority of the parties of the second part shall make a request in writing to that effect, the party of the first part shall cause an invoice of the stock of goods on hand to be taken in the presence of two of the parties of the second part, and if it be ascertained that the business, is sustaining any considerable loss, and the said parties of the second part so demand, the party of the first part shall turn over sufficient amount of said goods to secure said parties of the second part against any liability on account of said indorsement, or relieve said parties of the second part from said indorsement, by causing said indorsed paper to bo-canceled. And it is further agreed by and between the parties that if, at the end of one year, it be ascertained that there has been a profit in said business, and the party of the first part so require, the provisions of this agreement shall extend another year, but if the party of the first part desires to continue said business without the aid of said indorsement, then this contract from and after that date becomes abrogated. Said parties to this contract are to do what they reasonably can to make said business a success. In witness whereof, We have hereunto set our hands and seals this 29th day of April, 1881.’*

Tbe said contract was signed and sealed by all tbe defendants. That on tbe 7th day of May, 1881, tbe defendant Evolin B. Robertson made ber promissory note for $2,000, payable to tbe order of J. R. Robertson, at tbe First National Bank of Jamestown,, and that tbe same was indorsed by tbe payee and by all of tbe other defendants except Davis H. Matthews and tbe maker of such note, and that tbe proceeds of tbe note went into tbe business and was-used, made and indorsed in compliance with the agreement above set forth, and when tbe note matured a like note was given in renewal, indorsed by most of tbe defendants, and a second renewal was made like tbe first, and tbe proceeds of tbe original note were-by such renewals kept in tbe business until December, 1881, when tbe business terminated. That tbe J. R. Robertson named in the-contract became the manager of tbe store referred to in the contract, and called tbe same “Tbe Busti Union Store,” by which, or some similar name, tbe business of the store was carried on, and by that name its checks were drawn upon a bank account kept by the manager, some of which checks were drawn, delivered and accepted by some of the defendants for produce sold at tbe store, and to-some extent tbe same name was used on advertising cards which were given away in tbe store to customers, and that tbe name was-used openly and without concealment, as the name under which tbe business contemplated by tbe contract was carried on.

As a conclusion of law tbe referee found that tbe contract did not constitute or create a partnership between tbe defendants as to-third persons, and that tbe complaint should be dismissed as to the-defendants answering. Tbe question presented for our determination turns upon tbe construction to be given to tbe contract.

Tbe contract, as we have seen, is between Evolin B. Robertson of tbe first part and the other defendants of the second part. She-agreed to put in a stock of goods in the John R. Robertson store, in tbe village of Busti, of at least tbe value of $3,000, and to procure tbe services of John R. Robertson, her husband, to manage tbe store and devote bis time to tbe interests of the business. The parties of the second part agreed to indorse ber paper to the-amount of $2,000, which sum was to go into tbe business, and they were to have an interest at all times in tbe goods in tbe store to the-amount of their indorsement, subject, however, to no liability ¡except such indorsement. At the end of a year an invoice was to be taken in the presence of two of the parties of the second part, and out of the profits the parties of the second part were to be paid one-third of the profits, if any, in consideration for their indorsement and their general interest in the business, and if at ■any time during the year a majority of the parties of the second part should so request in writing, an invoice of the stock of goods on hand should be taken in the presence of two of their number, ■and if it be ascertained that the business was sustaining any considerable loss, and they so demanded, the party of the first part agreed to turn over a sufficient amount of the goods to secure the parties of the second part as against any liability on account of ■their indorsement, or else the party of the first part should relieve ■them by causing their indorsed paper to be canceled. The party of the first part was given the right, at the end of the year, to terminate the contract and continue the business without the aid of the indorsement of the parties of the second part.

No joint ownership in the stock of goods is given to the parties of the second part by express terms, and we do not think it can be implied. They are only given an interest in the goods in the store to the amount of their indorsement, and this indorsement is given subject to no liability except such indorsement. They are not given .any right to control, manage or conduct the business. They are not given any interest in the goods after the termination of the ■contract. Only two are permitted to be present at the taking of the invoice. They are only entitled to have a sufficient amount of the goods turned over to them to secure them against loss on account of their indorsement, in case it should be ascertained that there was any considerable loss in the business, and at the end of the year they are to receive one-third of the net profits in consideration for their indorsement. We do not understand that this would constitute them copartners as to the defendant Robertson or as to third persons.

It was doubtless the rule in England at an early day that a participation in the profits of a trade made one liable as a partner to third persons. (Grace v. Smith, 2 Wm. Bl., 998; Waugh v. Carver, 2 H. Bl., 235.) But this doctrine was substantially overturned in the case of Cox v. Hickman (8 House of Lords Cases, 301), since which time numerous cases are to be found in the books making exceptions to the ancient rule.

The case of Leggett v. Hyde (58 N. Y., 272), the strongest case in support of the appellants’ theory to which our attention has been called, in effect holds that one interested in the profits of a business as a means of compensation for services is not liable to third persons as a partner ; and to the same effect is the case of Greenwood v. Aldridge (1 Hun, 227).

A still further exception to the old rule is made in the case of Richardson v. Hughitt (76 N. Y., 55). It was there held that a person who has no interest in the business of a firm or in the capital invested, save that he is to receive a share of the profits as a compensation for services, or for money loaned for the benefit of the business, is not a partner, and cannot be- held liable as such by a creditor of the firm. This case has been subsequently approved in the cases of Burnett v. Snyder (81 N. Y., 550); Curry v. Fowler (87 id., 33-38), and Cassidy v. Hall (97 id., 159).

Under the view which we have taken of the contract, the defendants answering merely gave to Mrs. Robertson credit for $2,000, by indorsing for her to that amount. As a consideration for the indorsement she was to give them a share in the profits, and under the authorities to which we have referred this would not constitute them copartners.

Again, it appears that the plaintiffs sold the goods in question under full knowledge of the existence and contents of the contract. The witness Jackson testified, and he was not disputed, to a conversation with Chaffee, the plaintiffs’ agent who sold the goods, in which he told him of the existence of the contract and what it contained.

The question of misjoiner of the defendants was discussed upon the argument, but under the view which we have taken of the contract we do not deem it necessary to here consider that question.

The judgment should be affirmed.

Smith, P. J., Barker and Bradley, J J., concurred.

Judgment affirmed.


text:
    In the Matter of the Alleged Election of Directors and Officers of the ROCHESTER DISTRICT TELEGRAPH COMPANY.

      Meeting of stockholders of a corporation — right of each to one vote for each share of stock held hy him — 2 B. 8. (7th ed.), 1585, § 6.
    At the annual meeting of the stockholders of a telegraph company, formed under chapter 265 of 1848, an injunction was served upon the president and others restraining them from voting upon 2,560 shares of stock recently issued hy the board of directors. A motion to adjourn received the affirmative vote of seven stockholders present and holding 1,724 of the original shares, and the negative vote of five stockholders present and holding 4,275 of said shares. The seven stockholders having left the room the five stockholders elected a hoard of directors. Neither the certificate of incorporation nor the hy-laws made any provision as to the manner of voting at stockholders’ meetings.

      Held, that the matter was regulated hy section 6 of 2 Kevised Statutes (7th ed.), 1535, hy which each stockholder was entitled to one vote for each share of stock held by him.
    That a motion hy the dissenting stockholders to vacate the election was properly denied.

      Quasre, as to whether such decision would have been made if it had been shown that the injunction was procured and served, after the meeting had assembled, for the purpose of preventing the appeUants from voting upon stock legally and properly issued to and owned by them.
    Appeal by the 'Western Union Telegraph Company and certain of the outgoing directors of the Rochester District Telegraph Company from an order of the Monroe Special Term denying a motion to vacate and declare void the election of directors and' officers of the Rochester District Telegraph Company.

      H. E. White, for Rochester District Telegraph Company, Western Union Telegraph Company and others, appellants.

      George F. Yeomans, for the directors elected and for said company, respondent.
   Haight, J.:

The Rochester District Telegraph Company is a corporation organized under chapter 265 of the Laws of 1848, and the amendments thereto. An annual meeting of the stockholders of the corporation had been called for the 14th day of May, 1885, for the purpose of electing directors and transacting such other business as should come before the meeting. At the time and place noticed, the meeting was called to order by the president, and thereupon an injunction was served enjoining him and certain others from voting upon 2,560 shares of stock which had recently been issued by the board of directors of the company. Thereupon a motion was made that the meeting adjourn to May 18, 1885, at two p. m. A counter-motion was made to proceed to the election of inspectors of election, but the president ignored the motion and put the motion to adjourn. Thereupon the respondents requested the president to take the vote thereon by ballot of shares. The president then called for the ayes upon the motion, and proceeded to call the roll of stockholders, allowing and recording one vote for each person responding and seven voted in the affirmative. The respondents again objected to the vote being so taken and demanded that the vote be taken by shares; that upon the nays being called each of the respondents voted the number, of shares held by him, each claiming to cast as many negative votes as he had shares of stock. The president refused to receive the votes upon the basis of the stock held by the respondents, and recorded, against their protest, the vote as seven ayes and five nays and then declared the motion carried. The respondents then openly protested against the adjournment as illegal and asked the president to remain and proceed with the meeting and the election of directors. The seven stockholders that voted for an adjournment then retired, and the five stockholders that voted against the adjournment remained and reorganized the meeting with the vice-president and elected a board of directors. The seven stockholders who voted in favor of an adjournment were the owners, or held proxies, of the original stock of the company to the number of 1,724 shares. The five who voted against an adjournment were the owners of 4,275 shares of the stock. Motion was made on behalf of the seven stockholders who voted for an adjournment to have the election of directors set aside, and from the order denying the motion this appeal was taken.

The regularity of the election of the board of directors depends upon the question as to whether or not the meeting was properly adjourned, and the regularity of the adjournment depends upon the question as to whether or not the stockholders had the. right to vote upon each share of stock owned by them. The certificate of incorporation and the by-laws of the company make no provision as to the manner of voting at a stockholders’ meeting.

We shall assume that at common law the members of a corporation were each entitled to but one vote, and that the majority controlled the whole. (2 Kent’s Com., 293; Morawitz Private Corporations, 360.)

It remains to be determined whether or not the rule has been changed by statute. It.is provided that “ no by-law of the directors- and managers of any incorporated company, regulating the election of directors or officers of such company, shall be valid unless the same shall have been published for at least two weeks in some-newspaper in the county where such election shall be held, at least thirty days before such election; and in all eases where the right of voting upon any share or shares of the stock of any incorporated company of this State shall be questioned, it shall be the duty of the inspectors of the elections to require the transfer books of said company, as evidence of stock held in the said company; and all suck shares as may appear standing thereon in the name of any person or persons shall be voted on by such person or persons directly by themselves, or by proxy, subject to the provisions of the act of incorporation.” (2 Revised Statutes [7th ed.], 1535.)

It is contended in the first place that this provision of the statute is only applicable in cases where the charter or by-laws of the corporation provides for the voting upon each share of stock, but such does not appear to us to be its meaning. The section referred to is a part of the general provisions of the statute in reference to-incorporations. It will be observed that the words used are “ any incorporated company.” To be sure there are many incorporated companies that do not issue stock. In such companies no stock can be voted upon for the reason that none exists, and of necessity, this-section can only apply to stock companies.

In the case of Ex parte Holmes (5 Cow., 426, 434), a motion was made to set aside an election of a board of directors of the Tradesmen’s Insurance Company. The court, after quoting the above statute, remarks: “There is nothing in the act of incorporation of the Tradesmen’s Insurance Company which interferes to prevent the application of this provision (of the statute), and it is broad enough, Literally, to include all stockholders, whether in their own right or as mere trustees for others.” (See, also, In the Matter of Barker, 6 Wend., 509.)

The case of Taylor v. Griswold (2 Green’s R., 222) has no application, for the reason that the corporation was organized under the laws of New Jersey, in which State the question was controlled by the common law.

Again, it is contended that if it shall be held that the statute referred to applied to the election of directors, that it only applied to such election and had no bearing upon the question of an adjournment. The first subdivision of the section pertains to by-laws of the corporation, regulating the election of directors or officers, and for the publication of notices, etc. The second subdivision then provides that, “in all cases where the right of voting upon any share or shares of stock shall be questioned,” etc. The word “voting” »is not qualified or limited to voting at an’*election of directors or officers, and, we think, it ought not to be so limited.

In the case of Taylor v. Griswold (supra), at page 237, it is said that “ the right to a plurality of votes, if it exists at all, extends to every subject that may be discussed and every resolution that may be submitted at any meeting of the stockholders.” This must, of necessity, be so, otherwise the statute would be nullified. The appellants being in the majority, could, at every meeting called for ■an election of directors, pass a resolution to adjourn the meeting and indefinitely continue the old board in office, and prevent the respondents from holding the election, although they owned nearly three times the amount of stock. Such does not appear to us to be the logical or rational construction of the statute.

It appeared that as this meeting assembled an injunction was served restraining some of the appellants from voting upon certain stock. The practice of procuring an injunction and serving it after the meeting had assembled is not to be commended and should only be tolerated in cases where the right thereto is clearly established. Motion has been made to the Special Term to vacate the same and has been refused; no appeal from that order is now before us. We must, therefore, for the purposes of this motion, assume that the injunction order was properly granted. Had it been made to appear that the injunction order was procured for the purpose of preventing the appellants from voting upon stock legally and properly issued to and owned by them, a very different question would have been presented.

The order should be affirmed, with costs.

Beadlet, J., concurred; Baeeee, J., [concurred in the result; Smith, P. J., not sitting.

Order affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant, v. WILLIAM P. LOW and Others, Assessors, and GEORGE D. DOVER, Supervisor of the Town of Avon, Respondents.
    Certiorari to review an assessment— the practice as to, is regulated, by the provisions of chapter 2G9 of 1880, and not by the Gode of Givil Procedure.

    As chapter 260 of 1880, providing for the review of assessments by certiorari, was passed before and remained in force after section 2132 of the Code of Civil Procedure, regulating the time within which a writ of certiorari must be made returnable, took effect, its provisions were, by virtue of the express provisions of sections 2132 and 2147 of the said Code, in no way varied or affected by the adoption of the said Code.
    Appeal from an order of the Monroe Special Term, quashing writ of certiorari upon the ground that the writ was not made returnable at a Special Term within twenty days after the service thereof, as provided by section 2132 of the Code of Civil Procedure.

      Henry W. Sprague, for the appellant.

      K A. Nash, for the respondents.
   Haight, J.:

On the 14th day of September, 1885, a writ of certiorari was issued out of the Supreme Court, on the petition of the relator, to review the action of the assessors of the town of Avon, in the county of Livingston. The writ commanded the respondents to certify and return, at a Special Term of the Supreme Court to be held in and for the county of Monroe, at the court-house, in the city of Rochester, on the twenty-sixth day of October, at the opening of court on that ■day, a certified and sworn copy of the assessment-roll, etc. The certiorari was issued under and pursuant to chapter 269 of the Laws of 1880, and the return commanded is in accordance with the provisions of that act. Section 2132 of the Code of Civil Procedure provides that “ a writ of certiorari must be made returnable within twenty days after the service thereof, at the office of the ■clerk of the court.” Section 2138 provides that “in the Supreme Court it must be heard at a General Term, held within the judicial' department embracing the county where the writ was returnable.” Section 3 of the act under which the writ was issued provides that “ the court or justice granting the writ shall prescribe in the writ the time within which the return thereto must be made, which shall not be less than ten days, and may extend such time.” Section 2 of the act provides “such writ shall only be allowed by a justice of the Supreme Court in the judicial district, or at a Special Term of the court in the judicial district in which the assessment complained •of was made, and shall be made returnable at a Special Term in said district.” Under the Code the writ can be granted only at a General or Special Term of the court, whilst under the statute referred to it can be granted only by a judge of the court or at •Special Term. It will be observed that the practice provided for in the act under which this writ was issued differs materially in many respects from that provided by the Code. The question presented for our determination is whether or not the provisions o.f the Code are applicable and to be followed upon the issuing of writs of this character. Section 2132 of the. Code is a part of chapter 16. Section 3355 provides that “for. the purpose of determining the effect of this act upon other acts, and the effect of other acts upon this act, chapters 14 to 22 of this act, both inclusive, are deemed to have been enacted on the 12th day of January, in the year 1880, and all acts passed after the last mentioned date are to have the same effect as if they were passed after those chapters.” Section 3356 provides that “ chapters 14 to 21, both inclusive (shall take effect), on the 1st day of September, 1880.” So that we are required to consider section 2132 as having been passed on the 12th day of January, 1880, and that it took effect on the 1st day of September, 1880. Chapter 269 of the Laws of 1880 was passed May 12, 1880,. and took effect in twenty days thereafter. Section 2147 of the-Code provides that “ where the right to a writ of certiorari is expressly conferred, or the issuing thereof is expressly authorized by a statute passed before and remaining in force after this article-takes effect, this article does not vary or affect in any manner any provisions of the former statute, which expressly prescribes a different regulation with respect to any of the proceedings upon the cerUorari to be issued thereunder.” ft thus appears that chapter 269-was passed before, and remained in force after, section 2132 took effect, and under the express provisions of section 2147 the Code does not vary or in any manner affect the provisions of the statute.

The order of the Special Term should be reversed, with ten dollars costs and disbursements, and the motion denied.

BARKER and Bradley, JJ., concurred; SMITH, JP. J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion denied.


text:
    ARTHUR P. FLAGLER, Assignee, etc., of ORVILLE A. WHEELER, Respondent, v. FRANCIS SCHOEFFEL, Appellant.

      General assignment — not invalidated because tire property is conveyed to the assignee, his heirs, executors, administrators and assigns — evidence — declarations of the assignor, made before or after the assignment, a/re inadmissible — one not a pa/rty to a proceeding cannot claim the benefit of an order made therein as deciding the issue involved.

    The plaintiff, as the general assignee for the benefit of the creditors of one-Wheeler, brought this action against the defendant, a sheriff, to recover for the conversion of certain wheat and corn which had been assigned to the plaintiff, and which the defendant had levied upon and sold under an execution issued upon a judgment recovered by one Ellas against Wheeler, after the assignment had been executed and the assignee had taken possession of the property therein described. The defendant claimed that the assignment was fraudulent and void, alleging as one reason therefor that it assigned the property to the plaintiff, “his heirs, executors, administrators and assigns.”

      Weld, that there was nothing in this claim; that the words objected to were used to describe the quality of the estate conveyed, and not the class of persons taking it.

      Upon the trial the defendant offered to prove declarations made hy the assignor, some before and some after the assignment had been made and the assignee had taken possession of the property, tending to show that he made the assignment with intent to defraud his creditors.

      Reid, that it was proper to exclude this testimony.

      Bullía v. Montgomery (50 ÍT. Y. 852) followed, and Adorn,s v. Rcmdson (10 id., 809) distinguished.
    It appeared that a mortgage upon the real estate assigned to the plaintiff was foreclosed; that a surplus arising upon the sale was paid into court, and that in proceedings instituted to distribute the fund, the claim of the plaintiff, as assignee, was successfully attacked on the ground of fraud hy one Reed, a judgment creditor, who procured an order directing the surplus to he paid to him. Upon the trial of this action the court exciuded evidence of these records and proceedings.

      Reid, that this was proper as it did not appear that the judgment creditor, under whose authority the defendant acted, was á party to these proceedings.
    That this objection was not removed by an offer to show by parol that the attorney for the Ellas estate was the attorney for Reed, and that the attorney was acting in fact for the Ellas estate, as these facts did not show that the Eliases were parties to or appeared in the proceedings so as to be hound by the facts determined therein.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict of a jury at the Monroe Circuit, and from an order denying defendant’s motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Horace MoGmre, for the appellant.

      H. Si. Dv/t'fee, for the respondent.
   Haight, J.:

On the 13th day of March, 1883, one Orville A. "Wheeler made a general assignment for the benefit of creditors to the plaintiff, who took possession of the property and entered upon the discharge of his trust. The assigned property consisted chiefly of a farm, upon which winter wheat was growing at the time of the assignment, which the assignee procured to be harvested and threshed. In the spring of the year the plaintiff entered into an agreement with Ruth Wheeler, the wife of the assignor, to cultivate the farm on shares, under which agreement some corn was raised, which was divided between her and the plaintiff. In September, 1883, Edward H. Ellas and another, as executors, etc., recovered judgment against Orville A. Wheeler for the sum of $691.13, on which judgment execution was issued to the defendant, who was then sheriff of Monroe county. The defendant, by virtue of the execution, levied upon and sold the wheat and corn held by the plaintiff as assignee, and this action was brought to recover for the alleged wrongful conversion of the wheat and corn. The defense was that the assignment by "Wheeler to the plaintiff was fraudulent and void. The verdict was in favor of the plaintiff.

It is contended, in the first place, that the assignment is fraudulent and void upon its face for the reason that it assigned to the plaintiff, “ his heirs, executors, administrators and assigns.” We are, however, of the opinion that there is nothing in this claim. The objectionable words, as usually employed in conveyances, are used as descriptive of the quality of the estate conveyed, and are not understood as conveying an estate to the classes of persons named. The power and manner of assigning, for the benefit of creditors, is expressly limited and prescribed by statute, and under it we are required to give effect to the intent of the parties to every conveyance of an estate or interest in land. Under the assignment in question it was the evident intent and purpose of the assignor to vest the estate in the plaintiff as assignee for the benefit of creditors.

Upon the trial the defendant offered to prove the declarations of Wheeler before the assignment. These declarations were offered solely upon the question of intent. Objection was made and sustained, to which the defendant took exception. Other declarations of Wheeler were offered to be proved made after the assignment had been made and the defendant had taken possession of the assigned property.

It is now contended that the evidence was competent and that it should have been admitted. In the case of Adams v. Davidson (10 N. Y., 309) it was held that where a debtor had made an assignment in trust for creditors of a stock of merchandise, and that the assignee, after a mere symbolical delivery, had permitted the assignor to continue in possession of the goods, selling them as before the assignment and apparently for the benefit of the assignor, that these facts unexplained were evidence that the assignment was made in fraud of creditors, and the declarations of the assignor as to the object of making the assignment, made by him after its execution, and while he continued in possession of the property, are evidence against the assignor and creditors claiming under the assignment.

In the case of Cuyler v. McCartney (40 N. Y., 221), it was held that after the execution and delivery of the assignment in trust for the benefit of creditors, and the entry of the trustee upon the performance of the trust by taking possession of the assigned property, the assignor cannot, by his declarations or admissions made out of court, invalidate the assignment or furnish evidence of his own or of the trustee’s fraudulent intent in making or receiving it.

In the case of Bullis v. Montgomery (50 N. Y., 352), the action was brought by an assignee against the sheriff, to recover the possession of personal property levied upon by the sheriff under a requisition issued in an action brought by Montgomery and Sage to recover chattels. Upon the trial evidence was offered by the defendant that Walters, the assignor, had, previous to the making of the assigment, declared his intent to cheat Montgomery and Sage out of the property. The evidence was objected to and excluded. UolgeR, <J., in delivering the opinion of the court, says: “Were the declarations of Walters admissible in evidence? Walters was a competent witness and was not a party to the action. They were, then, hearsay evidence, and were not competent unless brought within some of the exceptions to the rule which forbids the use of such evidence. It is suggested that they were a part of the res gestee. But there is nothing in the case to sustain this. They were made before the sale of the property, not in the progress of the bargaining for it, not so far as appears in reference to an anticipated purchase or bargaining for it, nor while engaged in endeavoring to bring about a sale. In these respects the case differs from Crary v. Sprague (12 Wend., 41) and pther like cases cited by the defendants. It is also suggested that there was such a privity between Walters and the plaintiffs, such an identity or community of interest as made these declarations ..competent evidence. There may be such cases but this is not one. It exists in the case of an administrator, the declarations and admissions of whose intestate may be given against him. But there is no such identity of interest between an insolvent assignor in trust for creditors and his assignee. The latter holds primarily for the creditors, and for these in hostility to the assignor. He does not represent merely or principally the assignor, nor hold chiefly for his interest and benefit, but rather for the creditors of the assignor, and is accountable in the first place to them.”

The court in tbis case, and in the case of Cuyler v. McCartney, refers to tbe case of Adams v. Davidson (supra), and questions tbe correctness of tbe rule there stated. But inasmuch as that case went no farther than to bold that tbe declarations of tbe assignor were competent after tbe assignment, where tbe assignor bad remained in possession of tbe goods, selling them as before the assignment, and apparently for bis own benefit, under such circumstances as to become evidence that tbe assignment was made for bis benefit and in fraud of bis creditors, it was not necessarily in conflict with the rule laid down in tbe later cases.

The case of Bullis v. Montgomery, so far as tbis question is concerned, appears to be in point and upon all fours with tbe case under consideration. Tbe action was by the assignee against tbe sheriff for tbe wrongful taking of a part of tbe assigned property. Tbe evidence excluded was an offer to show tbe declarations of tbe assignor that he “ untended to cheat them out of the property.” Tbe declarations offered were claimed to have been made before tbe assignment and not in tbe progress of tbe bargain. So in the case under consideration; tbe declarations sought to be proved were claimed to have been made fourteen days before tbe assignment to one Heed and other creditors who were trying to collect their claims. It is not pretended that they were made at or about tbe time of tbe assignment, or in tbe presence and bearing of tbe assignee. They consequently were not a part of tbe res gestee ; there bad been no attempt to prove a conspiracy or to bring them within the rule that admits tbe declaration of a co-conspirator. We are, consequently, of tbe opinion that tbe declarations were properly excluded. (See, also, Coyne v. Weaver, 84 N. Y., 386-392; Vidvard v. Powers, 34 Hun, 221.)

The declarations of the assignor, after the assignment and after possession bad been delivered to tbe assignee, were properly excluded under tbe authorities to which we have already referred. He could not, then, by bis own declarations out of court, not under oath, make evidence against the 'assignee that would prejudice or impeach tbe title vested in him for tbe benefit of creditors.

Upon tbe trial tbe court first received in evidence, and then struck out, the records and proceedings bad for tbe purpose of distributing surplus moneys arising upon a sale in a foreclosure action, it •appeared that one Barnet B. Flagler, as executor, etc., beld a mortgage upon tbe real estate assigned to tbe plaintiff; that an action was brought to foreclose tbe mortgage; that a judgment of foreclosure was entered and tbe premises sold under the decree; that a surplus arose from such sale which was paid into court and proceedings were then instituted to distribute the surplus. The same was claimed by the plaintiff, as assignee, and by one Reed, a judgment creditor of "Wheeler’s, but whose judgment was obtained subsequent to the assignment. Such proceedings were thereupon had that an order of reference was made and a hearing had before the referee, who made and filed his report to the effect that he found, as a fact, that the assignment from Wheeler to the plaintiff was made with the intent to hinder, delay and defraud creditors, and, as a conclusion of law, that the judgment of Reed should be paid out of the surplus moneys prior to the claim of the plaintiff as assignee.

Motion was made on the part of the assignee to set aside this report. The Special Term denied the motion and confirmed the report. It is now claimed that these proceedings were competent evidence, first, as constituting a bar; and second, as evidence of the fact establishing that the assignment was fraudulent and void. TTpon referring to the answer we find that the defendant has failed to plead these proceedings as a bar to the action.

In the case of Krekeler v. Ritter (62 N. Y., 372) it was held that the record of a former judgment is not admissible in evidence as constituting a bar or estoppel to an action without being pleaded, and yet it was held that when the issues in an action had been adjudicated in a former action between the parties, the judgment in the former action is proper as evidence of the facts established thereby although not pleaded. In the proceedings to distribute the surplus money the question as to the validity of this assignment was squarely raised and necessarily determined. The court had jurisdiction, and the facts, as established by the final order in the proceedings, are doubtless res adjudicada as to all of the parties to that proceeding.

The difficulty, however, is that the appeal book fails to show that the defendant or the Eliases, tbe judgment creditors, were parties to those proceedings. It does not appear that they ever filed any claim for a share of the surplus money; that they were ever served with any notice of the proceedings to distribute the money, or that they ever appeared in the proceeding. It is contended, however, that the defendant offered to show by parol that the attorney for the Ellas estate was the attorney for Reed, and that the attorney was-acting in fact for the Ellas estate. This offer was excluded and exception taken. We are of the opinion that this offer does not go far enough. The attorney for the Ellas estate may have been the attorney for Reed in these proceedings; he may at the same time have been acting as attorney for the Ellas estate in other matters, generally looking after the interests of that estate, and still the Eliases may not have been parties to or appeared in the proceeding so as to be bound by the facts determined therein.

The court very fairly submitted the questions involved in the case to the jury, and we discover no errors in the charge as made or in the refusals to charge as requested. The leasing of the farm to Mrs. Wheeler to work upon shares raised a question of fact, which was submitted to the jury under proper instructions.

The judgment and order should be affirmed.

BRAdley and Corlett, JJ., concurred.

Judgment and order affirmed.


author: Bradley, J. :

text:
    CHRISTOPHER WILLOVER, Appellant, v. THE FIRST NATIONAL BANK OF OLEAN, Respondent.
    Counter-claim— when a claim, cannot he used as — when not available under subdivision 3 of section 502 of the Code of Oivil Procedure.

    The complaint alleged that one Phelps acted as an attorney for one Alexander, both in an action in which Alexander recovered a judgment against one Funk, and also in a subsequent action, brought unsuccessfully by Funk, to restrain its collection; that before the second action was determined the first judgment was-assigned to the defendant by Alexander, subject to the claim of Phelps for his compensation; that after the determination of the second action Phelps-assigned to the plaintiff his claim against Alexander for services in that action, together with his lien upon the judgment; that the parties being unable to-agree upon the amount of Phelps’ claim submitted the matter to arbitration and agreed to abide by the award, and that the amount awarded -should be paid to the plaintiff out of the judgment; it further set forth the making of the award and its amount, the subsequent receipt of the amount of the judgment by the defendant, the payment by it of a part of the plaintiff’s claim and its refusal to pay the balance.
    The defendant set up as a counter-claim that prior to the assignment to the plaintiff the assignor Phelps was indebted to the defendant for an overdraft, and that the alleged assignment to the plaintiff was merely nominal, without consideration, and made and accepted with the fraudulent purpose of enabling Phelps to take the proceeds, exempt from the claims of his creditors, and particularly of the defendant.

      Held, that the complaint set forth facts sufficient to constitute a cause of action. That the indebtedness of Phelps to the defendant, existing at the time of his-assigning his claim against Alexander to the plaintiff, was not the subject of a set-off or counter-claim as against the plaintiff.
    That the plaintiff was not a trustee for Phelps, nor was the action brought for his benefit so as to render the indebtedness of Phelps to the defendant available-as a counter-claim under the provisions of subdivision 3 of section 502 of the-Code of Civil Procedure.
    Appeal by the plaintiff from an interlocutory judgment, entered' upon the decision of the Cattaraugus Special Term, overruling-a demurrer interposed to an alleged counter-claim of the answer.
    The complaint alleges that one Phelps was attorney and counsel for one Alexander in an action brought by him against one Punk, in which a judgment was recovered against the latter for $1,752.42: damages and eosts; that Punk then brought an action against Alexander in equity to restrain the collection of the judgment, and gave-an undertaking, executed by sureties, to pay the amount of the-judgment in the event of failure to obtain the relief prayed for in the complaint; that Phelps was attorney and counsel for the defendant Alexander in that action, and the complaint was dismissed, but. before the action was determined Alexander assigned to the defendant the judgment and so much of the undertaking as secured its-payment, so that the “ defendant became the owner of said judgment, damages and costs, and all securities, * * * subject only to the claim of said Phelps for his compensation for services rendered ” for Alexander; that after the determination of the equity action Phelps assigned to the plaintiff his claim against Alexander for services in that action, together with his lien upon the fund therefor; that thereupon the parties, being unable to agree upon the amount to which the plaintiff was entitled for the services of Phelps, submitted the matter to an arbitrator, and agreed to
      •abide by the award, and “ that the amount awarded should be paid to the plaintiff out of the judgment and funds so assigned by Alexander to the defendant; ” that the arbitrator awarded the plaintiff $535 “for the services in said equity case;” that the defendant received from the sureties in the undertaking the amount of the judgment, and holds it by virtue of the assignment to it; that only $440 of the award have been paid, and there yet remains due ninety-live dollars, for which the -defendant is indebted to the plaintiff, for which he asks judgment. The defendant, by the second count of the answer, alleges that prior to the time of the alleged assignment to the plaintiff, his assignor, Phelps, drew his check upon the defendant for fifty-six dollars and -thirty-seven cents, and by it obtained from the latter that amount when he had no funds with the defendant to pay it, whereby he became indebted to the defendant for that sum; that the alleged assignment to the plaintiff “ was merely nominal, without consideration, and made and accepted with the fraudulent purpose of enabling Phelps to take * * * the proceeds * * * exempt from the claim of his creditors and particularly the defendant.”
    The plaintiff demurred to the counter-claim set up in the second ■count of the answer, on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled and the plaintiff appealed.

      Geo. Id. Phelps, for the appellant.

      J. JEd. Waring, for the respondent.
   Bradley, J. :

The facts, as alleged in the complaint, may be deemed sufficient to establish a lien in behalf of Phelps upon the fund represented by the judgment against Punk, for the value of his services as attorney and counsel for the defendant’s assignor in the action brought to restrain its collection, and in that view it may be assumed that the submission for arbitrament of the question of the value of such services was had.

The assignment by Phelps to the plaintiff, as alleged in the complaint, was of a claim against Alexander for services, together with his lien upon the fund as security for its payment, and did not purport to transfer any claim due the assignor from the defendant. But the judgment and the securities for its payment having been assigned by Alexander to the defendant, the latter had some interest in the matter of the amount of the lien upon the fund. And the plaintiff, from the assignment to him, derived the right to charge it fey action in equity, to which the defendant would have been a necessary party. But at the time of the assignment to the plaintiff, Phelps had no claim or right of action at law against the defendant which was transferred by it. And the defendant had no right to set-off or assert, by way of counter-claim as against the plaintiff as assignee, the debt it then had against Phelps. The right to do so is dependent upon the statute, which provides that if the action is founded upon a contract which has been assigned by the party thereto, * * * a demand existing against the party thereto * * * at the time of the assignment thereof, and belonging to the defendant, * * * must be allowed as a counter-claim * * * if it might have been so allowed against the party * * * while the contract belonged to him.” (Code Civ. Pro., § 502, sub. 1.)

The contract before and at the time of the assignment was between Phelps and Alexander, and no right of set-off then existed with the defendant against the plaintiff’s assignor affecting the claim assigned, and, therefore, the claim derived from the assignment by the plaintiff was in no manner taken subject to any right of the defendant to make the set-off. And in this respect the provision of the Code is substantially the same as the prior statute. (2 R. S., 354, § 18, sub. 8; Myers v. Davis, 22 N. Y., 489; Martin v. Kunzmuller, 37 id., 396; Taylor v. Mayor, etc., 82 id., 10.) This action and the right to maintain it depend upon a contract of the defendant, express or implied, made since the assignment to the plaintiff, and accruing to him as such assignee. But it is contended on the part of the defendant that the complaint does not state a cause of action against the defendant. If that is so, the plaintiff’s demurrer to the answer was properly overruled, without reference to the question of the sufficiency of the alleged counter-claim. (People v. Booth, 32 N. Y., 397.)

The complaint alleges the assignment of the judgment to the defendant; the lien of Phelps upon the fund represented by it, on account of bis claim for services as attorney and counsel against tbe defendant’s assignor; tbe assignment of tbat claim to tbe plaintiff; tbe agreement between bim and tbe defendant to submit tbe matter of tbe claim to arbitration to ascertain its amount in wbicb it was agreed tbat tbe amount awarded should be paid to tbe plaintiff out of tbe judgment and funds so assigned to tbe defendant; tbe making the award and its amount, and tbe subsequent receipt by tbe defendant of tbe amount of tbe judgment, etc. These facts are sufficient to furnish a claim and cause of action in favor of tbe plaintiff against tbe defendant. And for tbat purpose it is not necessary now to determine whether or not tbe allegation is sufficient to constitute an express agreement of tbe defendant to pay the amount to tbe plaintiff. Tbe alleged agreement of tbe defendant, tbat it should be paid out of the particular fund to tbe plaintiff in view of tbe purpose of tbe arbitration and award, was a recognition by tbe latter tbat tbe plaintiff had tbe right to the amount of tbe award established by it from tbe proceeds of tbe judgment. And tbe fact that tbe defendant afterward received tbe fund was sufficient to permit recovery of tbe amount, as for money bad and received by tbe defendants to and for tbe use of tbe plaintiff. In tbe view taken of the question here, tbe result must be tbe same whether the'right of action rests upon that ground or upon an express agreement of tbe defendant to pay tbe plaintiff from tbe proceeds of tbe judgment the amount of the award.

Tbat part of the answer alleging tbe matter of counter-claim is not sufficient to support tbe defendant’s claim against tbe plaintiff as assignee, unless the allegations of tbe answer place tbe plaintiff’s assignor in such beneficial relation to the subject of the action as to justify it. The answer in question alleges “ tbat at the time of tbe alleged assignment to tbe plaintiff, set forth in tbe complaint of tbe cause of action therein set forth, Phelps was indebted to tbe defendant,” etc. This is adopted as tbe basis upon which tbe right to charge tbe countei-claim against tbe cause of action and assignment as alleged in tbe complaint is asserted. Then tbe answer proceeds to allege that tbe assignment to the plaintiff was merely nominal, without consideration, and made and accepted for the benefit of said Phelps, and with tbe fraudulent purpose of enabling said Phelps (under cover thereof) to take hold, use and appropriate the proceeds of such award free and exempt from the claims and demands of the creditors of said Phelps and particularly this defendant.” The question arises whether this allegation brings the case within the statute, which provides, “ if the plaintiff is a trustee for another, or if the action is in the name of a plaintiff who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counter-claim, but so much of a ■demand existing against the person whom he represents, or for whose benefit the action is brought as will satisfy the plaintiff’s demand, must be allowed as a counter-claim, if it might have been so allowed in an action brought by the person beneficially interested.” (Code Civil Pro., § 502, sub. 3.)

This right of defense, founded in set-off or counter-claim as it is now defined as against an assignee, is wholly statutory. (Wheeler v. Raymond, 5 Cow., 231.) And the allegation in support of it must in express terms bring such defense within the statute. .We think that is not done in this case. It is neither alleged that the plaintiff was trustee for Phelps, or that the plaintiff had no interest in the subject of the action within the meaning of the statute. In matters of pleading nothing will be inferred, but all elements requisite to the cause of action or defense must be alleged.

The purpose of the assignment to the plaintiff, as distinguished from its legal effect, is not important for the purposes of this question in this action at law. Whether, within the meaning of this statute, the plaintiff was a trustee or had no interest in the subject-matter, of the action, depended upon the legal effect of the assignment to him as between the parties to it.

The intent of the parties is not the ■ subject of inquiry. The plaintiff may have the legal right as against his assignor to the entire subject of the cause of action, and yet the assignment be held fraudulent as to the creditors of the latter in a proper action for the purpose, by reason of some understanding that the assignor shall have some of the benefit to be derived,from it, the trust in such case is not created by the instrument, but is adjudged by the court as the result of fraud for the purposes of the remedy in behalf of creditors, that question cannot be raised in this action for the purpose of the alleged counter-claim.

The allegations in the answer do not necessarily go to the terms or legal effect of the assignment, but may relate only to the purpose and intent of the-parties in making and taking it. For aught that appears by the allegations of the answer the assignor has no legal interest or right which he can assert against the plaintiff to any part of the subject of the action.

It is unnecessary to consider the question which might have been presented, if it had appeared by the pleadings, or been alleged by the answer, that the money was received by the defendant upon the judgment prior to the assignment by Phelps to the plaintiff. If these views are correct, the defendant has faffed to allege facts sufficient to constitute a counter-claim or set-off, and the demurrer was well taken.

The recovery of costs of the demurrer and of this appeal by the plaintiff must await and depend upon the defeat of the defendant upon ,the issues of fact. If the latter prevails, then the plaintiff will not be entitled to recover such costs. (Masters v. Barnard, 6 How., 113; Belknap v. McIntyre, 2 Abb., 366; Mora v. Sun Mut. Ins. Co., 13 id., 304-308 ; S. C., 22 How., 60.)

The judgment should be reversed, with leave to the defendant to amend answer within twenty days on payment of costs.

Smith, P. J., Baeeee and Haight, JJ., concurred.

Interlocutory judgment reversed and demurrer sustained, with leave to the defendant to amend answer within twenty days on payment of the costs of the demurrer and of this appeal, and in case the defendant does not elect to amend, that the plaintiff recover such costs in case he succeeds in the action.


author: Bradley, J.:

text:
    DANIEL H. BIDWELL, Respondent, v. THE TOWN OF MURRAY, Appellant.

      Liability of towns for the negligence of highway commissioners — chapter 700 of 1881 is constitutional — duty of a traveler attempting to cross a bridge — admissibility of the declarations of a commissioner of highways to show his knowledge of a defect therein.

    In this action, brought against a town, under chapter 700 of 1881, to recover damages for injuries sustained by the plaintiff while crossing a bridge which was alleged to have been allowed to remain in an unsafe condition by reason of the negligence of the commissioners of highways, the defendant claimed that the act was unconstitutional upon the ground that the highways were for the public and not for local use, and that the highway commissioners were not the representatives or agents of the town in any sense, and that the legislature had no power to charge the property of its citizens with the consequences-of the misconduct and negligence of the commissioners.

      Held, that the act was constitutional and valid.
    A person approaching a highway bridge presenting no apparent defect or condition which would render it unsafe to cross over it, has the right ordinarily to assume that those charged with the duty of keeping it in repair have performed that duty and that he may safely proceed upon and over it.
    The character and weight of the vehicle and load, and the manner in which it is moved and the effect of the movement, are all to be taken into consideration, in crossing a bridge, and may require greater or less care.
    Evidence of the declarations of one of the commissioners of highways, made the summer before the accident, to the effect that he had got to go and repair this bridge, was received.
    Held, that the evidence was admissible as hearing upon the question of his knowledge of the condition of the bridge.
    Appeal by the defendant from a judgment, entered on a verdict rendered at the Orleans Circuit and from an order denying a motion fora new trial made upon the minutes of the trial judge.

      John Ounneen,, for the appellant.

      Isaac S. Signor, for the respondent.
   Bradley, J.:

The action is to recover damages, to the property of the plaintiff, caused by the breaking down of a highway bridge in the town of Murray, county of Orleans, alleged to have been occasioned by the negligence of the commissioners of highways of the town in not keeping the bridge in proper repair.

On the 14th day of September, 1883, when the plaintiff was passing over the bridge with his traction engine and water tank attached, a needle beam of the bridge gave way and the engine and tank were precipitated into the creek below and injured. The plaintiff recovered, and the defendant appeals. It appears that the bridge was constructed in 1860; that the needle beam which broke on this occasion was pine and decayed in the locality where it was broken. The evidence tends to prove that this timber was not put in when the bridge was originally constructed, but when it was placed in the structure, does not definitely appear. The duty was with the commissioner of highways of the town, to use ordinary care to keep the bridges in the town in suitable repair for the purposes of the pubhc travel over them, if he had the funds or the means of obtaining them for such purpose, and for failure in that respect, he is chargeable with negligence, and liable if injuries result occasioned by such neglect to parties lawfully passing over them, without fault on their part. (Hover v. Barkhoof, 44 N. Y., 113; Bryan v. Landon, 3 Hun, 500; S. C., 5 T. & C., 594.)

And this is an active duty of the commissioners, in so far that they are required to use reasonable diligence to ascertain the situation of the bridges and highways of their respective towns, and although they do not have actual notice of defective condition, they may be chargeable with notice of the defects which would have come to their observation by the use of reasonable diligence. (Bostwide v. Barlow, 14 Hun, 177; Todd v. Troy, 61 N. Y., 506; McCarthy v. Syracuse, 46 N. Y., 194.)

The commissioner, so far as appears, was not, before the injhiry, actually advised of the condition of this defective supporting timber, but in view of the age of the structure the jury were permitted to find that the commissioner was fairly required to have given it a more careful examination than it had received from him. And the evidence was sufficient to present a question of fact to the jury, and to justify the conclusion that a reasonable degree of care and vigilance on the part of the commissioner in the examination of the bridge would have disclosed the necessity for repair of its defective support.

This action is brought against the town of Murray pursuant to the statute which provides that “the several towns in this State shall be liable to any person suffering the same, for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways.” (Laws 1881, chap. 700, § 1.) It is contended on the part of the defense that this action cannot be maintained, because this statute is unconstitutional. And this contention is put upon the ground that the highways are for the public and not for local use, and that the highway commissioners are not the representatives or agents of the town in any sense, and, therefore, there is no legislative power to charge the property of its citizens with the consequences of the misconduct and negligence of those officers. The towns, as such, are mere civil divisions, except so far as they are invested by statute with corporate powers. They possess no corporate power in respect to the highways. And the highway commissioners are public officers, and as such have the entire care of the construction and repair of the highways, and at common law the towns are in no manner chargeable with the consequences to individuals of their neglect or misconduct in their management of the highways within the town. (Morey v. Town of Newfane, 8 Barb., 645; Lorillard v. Town of Monroe, 11 N. Y., 392; People ex rel. Van Keuren v. Town Auditors, 74 id., 310; People ex rel. Loomis v. Town Auditors, 75 id., 316; People ex rel. Everett v. Supervisors, 93 id., 397.)

The statute in question does not change the relation of the town to the highways in the town, or to the commissioners so far as relates to the control and supervision of them and the duty to keep them in repair. That duty is still upon those officers as such and not as agents of the town, to which no corporate power is given in that respect. And the liability which the town is, by this act, required to discharge is created in respect to matters with which it is charged with no duty, and over which, and the officers whose misconduct or neglect furnish the cause of such liability, the town has no control.

In view of this situation it is urged that the statute in question directs the taking of private property without due process of law. It will be observed that the system of laying out, opening and keeping in repair highways in the several towns in this State, has furnished officers, elected by the electors of the towns respectively, and they are supplied with the funds for those purposes by means of taxation of the property within them, and the towns in that manner are, pursuant to statute, charged with the legitimate expenses incurred by the commissioners in the maintenance of the highways within their limits respectively. And those officers are thus supported in the performance of the duties with which they are vested. There would be no constitutional objection to giving by statute to towns the corporate power and duty to take the control and supervision of the highways within them, and thus give the relation of agency to the officers in the performance of such corporate duty. While this statute does not vest the towns with any corporate power over the highways, it does create a primary liability for the negligence of the officers charged with that duty.

There seems to be no want of power to render such statute effectual. The legislature does not derive its powers from the Constitution, but as the representative body of the people of the State in their inherent power to enact laws, it has the character of sovereignty in that respect so far as consistent with our form of government, except as its powers are restricted by the federal and State Constitutions. The constitutional limitation upon taxation does not defeat the operation of this statute. [Town of Guilford v. Supervisors, 13 N. Y., 143; Town of Duanesburgh v. Jenkins, 57 id., 177-189.)

This creation of liability, in its application and results, is not a gift of the money or property of the towns to or in aid of an individual, within the meaning of article 8, section 11 o.f the Constitution. It has not relation to any individual, but concerns the public and is for the common benefit. The statute has in view the protection of the public in traveling upon the highways, for the maintenance of which the property in the towns is pledged for the purposes of taxation to the extent deemed requisite for the safety of travel upon them. The legislature by this act has sought to furnish indemnity to the public against loss, occasioned solely by the negligence or misconduct of the officers charged with the care and supervision of the highways. When this liability is established the means for its discharge’ are to be derived from taxation, and taxation is not taking property without due process of law within the meaning of the Constitution. (Art. 1, § 6.) By some method of equable apportionment and distribution of the burden, it operates upon communities and is a power essentially incident to government. (People ex rel. Griffin v. Mayor, 4 N. Y., 419; Brewster v. Syracuse, 19 id., 116; People ex rel. Witherbee v. Supervisors, 70 id., 228.) The delinquencies which may furnish the liability provided for are public, and relate to the performance of the duties of public officers and involve the consideration of the' public interest, and the statute seems clearly within the legislative power. ( Weismer v. Village of Douglas, 64 N. Y., 91.)

Several exceptions were taken to refusals to charge as requested and to the’charge as made, also to the admission and rejection of evidence. The court, with ample instructions, submitted the questions of fact to the jury, and after a careful examination of the several exceptions relating to the charge and refusals to charge, we think no error was there committed by the court. The charge was as full as could be required in respect to the duty of the commissioner, and the question as to what were ordinary tests under the circumstances, and whether they were applied by the commissioner to ascertain the condition of the bridge, was for the jury and fully submitted. Whether the plaintiff was chargeable with contributory negligence was in like manner submitted to them. And the court was not required to charge “ that if the plaintiff thought it would have been an act of prudence to examine the bridge before driving on to it, it was imprudent and negligent to drive on without such examination ” in the language of the request. The court charged that the plaintiff had the right to act on appearance as it presented itself at the time, and if there was any apparent defect he was chargeable with negligence. The mere fact that he thought it would have been an act of prudence to examine the bridge, would not necessarily charge him as matter of law with negligence for not going on to and examining it unless he saw or knew something of its character in a respect which might render it unsafe to go upon, or which would induce a prudent man to stop and examine it.

The question of negligence was for the jury. A person approaching a highway bridge presenting no apparent defect or condition which may render it unsafe to cross over, has the right ordinarily to assume that those charged with the duty have performed it, and that he may safely proceed upon and over it.

The character and weight of the vehicle and load, and the manner it is moved, and the effect of its movement, are to be taken into consideration in crossing a bridge, and may require greater or less care. This traction engine and apparatus had the weight of three tons, and whether its character required any and what additional care was a question properly submitted tó the jury. And they were permitted to say that the injury was attributable wholly to the defective condition of the bridge. And the court further charged that if the plaintiff had reason to suppose that the bridge was not properly cared for, and was in some respects defective, be could not recover.

There was no error in receiving the evidence of the declaration of the commissioner made the summer before the accident, to the effect that he had got to go and repair this bridge. This evidence was competent only as bearing on the question of his knowledge of the condition of the bridge, and not to show that it was defective, and it was received only for such limited and legitimate purpose.

The fact that it was then out of repair, depended wholly upon other evidence. It was his negligence that created the liability. The question of funds was properly disposed of as one of law. The want of funds, or of the means to’ obtain them, is a matter of defense. (Hover v. Barkhoof, 44 N. Y., 113-118; Hines v. Lookfort, 50 id., 236, 238, 239; Lament v. Haight, 44 How., 1, 4; Warren v. Clement, 24 Hun, 472 ; Babcock v. Gifford, 29 id., 186.)

The commissioner is entitled, as matter of course, to $250 per year (1 R. S., 502, § 4), and by vote at town meeting, he may be allowed not exceeding $750, in addition, to pay any balance that may be due for improvements before then made, as well as those in his opinion required for such purpose during the year following. (Laws of 1857, chap. 615.)

Then application may be made to the board of town auditors in the, cases and manner prescribed by Laws of 1858, chapter 103, section 2. The objection to the evidence offered to show by the commissioner, that he had made no such application, was on the grounds that he was not the agent of the town, and that the defendant is not liable for his negligence.

It is on his request alone that the board is convened for such purposes. And if there was any tenable objection to the evidence it was not embraced within the grounds specified. And assuming that this was a proper case for application to the board of town auditors, which was assumed on the trial, the refusal to submit the question of negligence in that respect to the jury was not, nor was the charge thereupon made, error. If he had known of the defect in this bridge and that it required repair, the commissioner, certainly, would have been in fault if he had no funds by reason of his omission to make available his lawful opportunity to apply for them, if necessary to do so, to repair the bridge ; but while the jury have found that he ought, and by reasonable diligence would have known of this defective condition, yet he probably was not in fact advised of such condition or of the necessity of funds to repair it, so the matter of his omission to make application for funds was not a germane question. But, as before remarked, when the negligence of the commissioner and the freedom from fault of the plaintiff were established, the further defense was with the defendant.

The expense required to make the repair requisite to give safety to travel upon the bridge was small. And if the attention of the commissioner had actually been called to it before the accident, it would pi’obably have been repaired.

The verdict seems to have been supported by the evidence. All the exceptions have been considered, and, we think, none of them well taken.

The judgment and order should be affirmed.

BaeKek and Haight, JJ., concurred; Smith P. J., not sitting.

Judgment and order affirmed.