text:
    THOMAS CUDDEBACK, Respondent, v. HUGH J. JEWETT, as Receiver of the Erie Railway Company, Appellant.

      Grossing of street by railroad — negligence of company in laying planks between rails — liability of the company to one infwred by such negligence.

    The plaintiff’s horse, while passing-, in charge of his servant, along a street in which the trades of the defendant’s road were laid, caught his hoof in a space between the rail and a plank which the defendant had laid alongside of it to facilitate the crossing of the tracks by teams. The horse wrenched his hoof off, and was thereby rendered valueless. The space between the plank and rail was greater than was necessary for the free operation of defendant’s cars. In an action by the plaintiff to recover the damages thereby occasioned to him, held, that he was entitled to recover.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before wbom tbe action ivas tried.
    Tbe action was brought against the defendant Jewett, as Receiver of the Erie Railway, to recover damages for injuries sustained by the plaintiff’s horse, at a crossing of tbe said railway at Port Jervis.

      Lewis E. Carr, for tbe appellant.

      John W. Lyon, for tbe respondent.
   Barnard, P. J.:

I have tbe same hesitation in regard to this case which tbe trial judge seems to have bad at tbe trial. The action was for injuries t© plaintiff’s horse, occasioned by defendant’s negligence. Upon the trial it appeared that plaintiff’s horse, while passing along a street across which the Erie Railway Company’s tracks were laid, in charge of plaintiff’s servant, caught his foot in the space between the rails of the railroad and a plank which the company had placed alongside its rail for ease and convenience in crossing with teams. The result of the accident was to wrench off the horse’s hoof, and destroy the value of the horse. No negligence could be imputed to plaintiff's servant. He was passing along a public street, and had the right to asume the safety of the crossing. The only difference between the witnesses was that the plaintiff gave evidence tending to show the siiace between the plank and the rail was from 3-^ to 3| inches. Defendant’s evidence, on the contrary, was that it was only three inches. The accident undisputedly did happen, and the space between the plank and rail was greater than was needed for the free operation of the defendant’s cars thereon. The jury should have found negligence on these facts, it seems to me, as matter of law. (Worster v. Forty-second St. R. R. Co., 50 N. Y., 203.) The road was not restored to its usefulness by the defendant if it was left liable to such an accident; especially is this so when the cavity between the plank and the rail is greater than needed for the operation of a road crossing on grade.

The judgment should be affirmed, with costs.

Present — Barnard, P. J., and Gilbert, J.; Pratt, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


source: Caselaw Access Project

author: Barnard P. J. :

license: Public Domain

text:
    JOHN E. DEVLIN, Jr., AND WILLIAM ROSE, Appellants, v. GEORGE W. COOPER, Sheriff of Suffolk County, Respondent.

      Insolvent debtor — application for discharge from imprisonment — inventory, when sufficient to give the officer jurisdiction.

    Where, in an action upon contract, an order of arrest has been granted on the ground that the defendant was guilty of fraud in contracting the debt, and he has thereafter been arrested under an execution issued upon the judgment, an application for his discharge from imprisonment must be made under article 5, chapter 5, part 2, title 1 of the Revised Statutes, and not under article 6 thereof.
    Where in an inventory, attached to the application of an insolvent debtor for a discharge from imiorisonment, all his debts were sufficiently set forth and described, except one, as to which the statement was probably insufficient, held, that the inventory was sufficient to give the officer to whom the application was made jurisdiction, and that a discharge granted by him would protect the sheriff in releasing the debtor from imprisonment.

      Appeal from a judgment in favor of the plaintiff.

      A. J. Heath, for the appellant.

      William Wickham, for the respondent.
   Barnard P. J. :

The defendant, as sheriff of Suffolk county, discharged one Frederick Maxwell from his custody under an execution, issued upon a judgment in favor of plaintiff upon contract, but where there had been an order of arrest, obtained before judgment, upon affidavits showing a fraudulent contraction of the debt by Maxwell. The discharge was made under an order of Henry P. Hedges, county judge of Suffolk county, and the question presented is whether the discharge is a good defence to the sheriff. The application for the discharge of Maxwell from imprisonment came from himself and not from his creditors. It was made under article 5, chapter 5, part 2, title 1 Revised Statutes. This article provides for a discharge from imprisonment by reason of any debts arising upon contracts previously made.

Article 6 of the same chapter and title provides for a discharge in cases of imprisoment under execution in civil cases, “ which shall have been specified in his petition.”

The first objection made is, that the application was not under article 6. The question is not without difficulty. When these laws were passed there was imprisonment for debts as well as for torts. There was no such cause of arrest as for fraudulently contracting a debt. Article 5 would then apply to one class of actions, namely, contracts; and article 6 to executions where the defendant could be arrested and imprisoned. Now imprisonment for debts is abolished, and there can be no imprisonment therefor, except in specified cases; and thus the cases in which arrests may be made are still contracts, but with the power to imprison on execution.

In principle, the case is one under article 6, but in fact, and under the letter of the law, the case is still contract. I think the application was proper under article 5 ; it covers all cases of contracts, and provides for a discharge from imprisonment which reaches all contracts, and the article provides for the discharge of persons thereunder when they are actually imprisoned. To limit article 5 to cases' where there was no imprisonment, and article 6 to cases where there was, could not have been the Legislature’s intent, or there would have been no provision for release from imprisonment under article 5.

The next objection taken to the proceedings I deem not well taken.

It is provided that application for the insolvent or imprisoned debtor’s discharge shall be made to an officer residing in the county in which the -debtor resides “ or is imprisoned.” There was no proof accompanying the petition that the debtor resided in Suffolk. The petition stated that the imprisonment was therein. (Article 7, chapter 5, part 2, title 1, § 2 ; 2 It. S., 35, § 2.)

The next objection is to the inventory of the estate of the insolvent. He states in his schedule and inventory, that he “ has now no estate whatever, whether real or.personal, in law or in equity;” and further, that since July 30, 1877, the petitioner has not come into possession or ownership of any property whatsoever. This was a date long anterior to the date of the petition.

The inventory is a good one; if false it does not destroy jurisdiction.

The objection to the inventory of the creditors, that it does not state the true cause and consideration of the indebtedness of each, is not well founded. A statement that the indebtedness is one on drafts drawn by the debtor and discounted by the creditor is a sufficient statement. It is not necessary to state what the money was used for by the debtor.

There is one statement of indebtedness which is probably insufficient if objected to ; it is stated as “ arising upon certain promissory notes, and sundry transactions between Payson and Maxwell.” It is a sufficient statement of indebtedness to confer jurisdiction. It would be a hard measure of liability to require the sheriff to guard against .such a defect. There was a petition duly verified made to the proper officer and in the proper county. There was a schedule and inventory of all the debtor’s property and of his creditors which, in form, stated the true consideration. One out of a great many is perhaps insufficient. The county judge deemed otherwise and granted the discharge. I think the discharge ought to .be a protection to the sheriff.

The error in the statement, if it be one, might have been corrected by certiorari, but the adjudication is sufficient to stand.

Judgment should be affirmed, with costs.

Gilbert, J., concurred; Pratt, J., not sitting.

Judgment affirmed,- with costs.


author: Barnard, P. J. : Gilbert, J.:

text:
    JOHN A. MILLARD, Jr., Respondent, v. THE MISSOURI, KANSAS AND TEXAS RAILROAD COMPANY, Appellant.

      Former adjudication — only a tar, as to matters litigated and decided therein— Entire contract — what is not.

    April 30, 1873, the plaintiff purchased from the defendant, at St. Louis, a ticket for Dennison, Texas. He had with him a valise containing wearing apparel and a hox or trunk containing merchandise.
    Upon applying for checks he informed the defendant’s agent that the trunk contained articles other than his baggage, and was required to, and did, pay extra compensation for the transportation thereof by the defendant. The valise and . "trunk having been burned the plaintiff brought an action to recover for the loss of the contents thereof, describing the articles as baggage. Upon the trial upon the demand of the defendant, the court refused to allow the plaintiff to recover for the loss of the articles of merchandise, on the ground that they ■were not included in the word ‘ ‘ baggage, ” used in the complaint. The plaintiff having recovered in that action for the loss of his baggage, brought this action to recover for the articles of merchandise.

      Held, that his right to recover for the loss of his merchandise was not litigated in the former action, and that the judgment therein was not a bar to the prosecution of this action. That the contract to cany the baggage was distinct and separate from the contract for the carriage of the merchandise.
    Appeal from a judgment in favor .of the plaintiff, entered upon the trial of this action by the court without a jury.
    On the 30th of April, 1873, the plaintiff and one William Brady purchased tickets and took passage on board defendant’s cars at St. Louis, Mo.,, for Dennison, Texas. Plaintiff had with him a valise containing his' wearing apparel and articles known as baggage, and a packing-box, or trunk, containing the merchandise specified in a schedule annexed to the complaint in this action.
    Brady had with him one trunk, contaimng his personal baggage and two packing-boxes, or trunks, contaimng the articles specified in a schedule annexed to the complaint in this action.
    The tickets entitled the plaintiff and Mr. Brady to carry a certain amount of baggage without extra compensation, and their baggage contained in .the valise and trunk did not exceed the amount so allowed. The defendant’s agent at St. Louis, however, refused to put the packing-boxes aboard the train, and insisted that they should be sent as freight. The plaintiff explained to him the nature of their contents, and that it was important that they should go on the train with them; and, thereupon, the agent weighed them together with the baggage, and charged eight or ten dollars for carrying the packing-boxes, which plaintiff and Mr. Brady paid to the defendant, and they were then put aboard the train with the baggage, and all were destroyed on the following day, while in defendant’s possession during the journey.
    Mr. Brady assigned his claims against the defendant to the plaintiff, and, in 1873, the latter brought an action to recover the value of the 'baggage, so lost, and in January, 1878, recovered a judgment in said action, which was paid. A bill of particulars was served in that action which contained the items of merchandise contained in the packing-boxes as well as the baggage, but the court ruled upon the trial that nothing but the personal baggage, viz.: the contents of the valise and trunk, could be recovered for in that action, as the complaint did not allege the contract to convey the merchandise, and that the merchandise did not come within the term baggage, and accordingly excluded proof in regard to the same ; and, thereupon, plaintiff withdrew all claims for such merchandise from the consideration of the jury.
    This action was then brought upon the agreement of defendant to carry said merchandise as special freight, for which it was paid as aforesaid ; and from the judgment recovered by the plaintiff for the value thereof this appeal was taken.

      Starr & Ruggles, for the appellant.
    The contract, between plaintiff and defendant being entire, and plaintiff baying bad one recovery and satisfaction tberofor, bas exhausted bis remedy ; tbe former judgment is a complete bar to tbis action. (Baird v. United States, 96 U. S. [YI. Otto], 430, 432; O’Beirne v. Lloyd, 43 N. Y., 248; Hojf v. Myers, 42 Barb., 270; Secor v. Sturgis, 16 N. Y., 548; Bendernagle v. Codes, 19 "VYcnd., 207; Fish v. Folley, 6 Hill, 54; Miller v. Covert, 1 Wend., 487; Farrington v. Caswell, 15 Jolms., 432; Jex v. Jacob, 8 W. Dig., 557.) Tbe judgment of a court of competent jurisdiction is final not only as to tbe subject matter thereby actually determined, but as to every other matter which tbe parties might litigate in tbe cause and which they might have had decided. (Embury v. Conner, 3 Comst., 522 ; Uojyf v. Myers, 42 Barb., 270; Dunham v. Eovoer, Ct. of App., 19 Alb. Law Jour., 458.)

      Freling H. Smith, for the respondent:
    The plaintiff had two cases of action against the defendant. (1.) One for the loss of baggage. (2.) The other for the loss of merchandise, upon the agreement to carry the same, as special freight, for a consideration separate from the purchase of the tickets. (Sloman v. The Great Western Railway Co., 67 N. Y., 208; Stoneman v. Erie Railway Co., 52 id., 429.)
   Barnard, P. J. :

There is but a single question presented by this appeal. The facts are undisputed. The plaintilf and one Brady were passengers upon the defendant’s road, having purchased tickets at St. Louis, Mo., for Dennison, in the State of Texas. Each had what is technically known as baggage, and each beside had articles and merchandise, not baggage, in separate trunks and boxes. The agent of the defendants refused to check the baggage and merchandise without extra charge. He was informed that the trunks contained articles other than baggage. The trunks were weighed, and a special rate of freight charged for and paid by plaintiff and Brady. The defendants failed to carry the same safely, and it was entirely lost before reaching Dennison. The plaintiff brought his action in the Supreme Court of New York, claiming to recover the entire damage under the name of the descriptive word, as stated, of baggage. Upon the trial the defendant objected that the articles now sued for did not come within the description of baggage, and the judge who tried the case so decided, and, as to the articles now in question, dismissed the complaint. The plaintiff, who is also the assignee of Brady, now seeks to recover for the articles which were not comprised within the term baggage, and the defendant claims that the former action is a bar to his recovery. A former action is a bar to a subsequent one only as to those claims which were in fact litigated or might have been litigated under the issues as made. There was no issue made except as to the baggage. All other proof was excluded by defendant, thus confining the former action to tha,t alone. Some cases even hold that when a clainq is within the issues, if it was not in fact litigated, the former action is no bar to a subsequent action for the claim not litigated. In this case the articles now sued for were formally withdrawn by the plaintiff, after the judge decided that nothing but baggage could be recovered for under the pleadings in the former action. The ruling seems to be sustained by authority that the present articles could not be included as baggage. (Dexter v. Syracuse R. R. Co., 42 N. Y., 326.) The objection being made by defendant that they were not so included, and the claim, in consequence of such objection having been withdrawn, it should, as between the parties, be held conclusive in this case. It was not an entire contract which could not be severed, as to baggage and. things not so classed.

The defendant having been informed that the trunks and boxes contained other articles, and a special rate having been charged therefor, there were two- agreements: one to carry the passengers and their baggage, and the other to carry their merchandise with the baggage. (Sloman v. The Great Western Railway Co., 67 N. Y., 208 ; Stoneman v. Erie Railway Co., 52 id., 429.)

The judgment should therefore be affirmed, with costs.

Gilbert, J.:

I think that the judgment in the former suit is not a bar : (1.) That was a suit to recovér for the loss of personal baggage, whereas this is one to recover for the loss of merchandise. (2.) Separate contracts were made for the transportation of each description of property. (3.) If either of these facts were susceptible of doubt that is obviated by the defendant’s conduct upon the former trial. The defendant then objected to the admission of evidence of the loss of the items embraced in the present action, upon the ground that they did not come within the description of personal baggage, and, therefore, such evidence was excluded, and all claim for such loss 'was voluntarily withdrawn from the consideration of the jury by the plaintiff. The rule that an entire claim cannot be divided and so made the subject of several actions, and that a judgment for a part is a bar to another suit for the remainder, is one for the protection of the debtor and may be waived by him. Such a rule cannot be perverted into an instrument of fraud or injustice. (Mills v. Garrison, 3 Keyes, 40.)

Moreover, it is plain that tlie articles included in this action were not personal baggage. (Dexter v. Syracuse R. R., 42 N. Y., 326.) Hence the defendant might properly exact compensation for the transportation of them as merchandise. Its agent did so, and the extra compensation was paid. The law implies from such a transaction a contract distinct from that which springs from the purchase of tickets. The latter imposed only the obligation of carrying the passenger and his baggage, while the former was made at a subsequent time and imposed a different obligation. (Stoneman v. Erie R. Co., 52 N. Y., 429; Sloman v. Great Western R. Co., 67 id., 208.) Nor can a railroad company be heard to claim that merchandise, for the transportation of which extra compensation had been exacted by them and paid, is baggage, because its weight, together with that of the other articles received for transportation, did not exceed the weight which the passenger was entitled to have carried as baggage.

The judgment must be affirmed, with costs.

Present — BarNard, P. J., and Gilbert, J.; Pratt, J., not sitting.

Judgment affirmed, with costs.


author: Gilbert, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. DAVID A. SCOTT and others, Appellants, v. THE BOARD OF SUPERVISORS OF ORANGE COUNTY, Respondent.

      Appeal from the determination of commissioners of highways —fees of referees, token, a county charge —• sect. 9 of chap. 455 of 1847 — Denial of an application for a mandamus — when not a bar to a second application.

    The term “reversed,” as used in section 9 of chapter 455 of 1847, providing that when, on appeal from the determination of commissioners of- highways, such determination is reversed, the fees of the referees shall be a county charge, embraces tl\e case in which the determination is reversed in part, as well as that in which it is reversed entirely.
    The relators, referees appointed to hear an appeal taken by one Stillman from the determination of commissioners of highways, applied for a mandamus to compel the board ,of supervisors to audit and allow, as a county charge, their fees for hearing and deciding the same. The application was denied on the ground that it appeared from the papers that the appeal was taken from the whole of the determination of the commissioners, and that such determination had been affirmed in part and reversed in part.
    Subsequently this application was made upon papers showing that, in fact, Still-man had appealed only from a part of the determination of the commissioners; and had on such apiseal been wholly successful.

      Held, that the denial of the former application was not a bar to this one.
    That as the determination of the commissioners had been reversed as to that part appealed from, the fees of the referees were a county charge.
    Appeal from an order dismissing an alternative writ of mandamus, and denying the relators’ motion for a peremptory one.
    On September 10, 1874, the commissioners of highways of the town of Cornwall, Orange county, laid out a certain highway in that town. One Charles Stillman, conceiving himself aggrieved, appealed to the county judge from a portion of the commissioners’ determination. The county judge duly appointed the relators herein, as referees to hear the appeals which might be taken from the determination of the commissioners of highways, but no other appeal than that of Stillman was taken. The referees heard the appeal, and on September 7, 1875, filed their decision, reversing that portion of the determination of the commissioners which had been' appealed from.
    The referees then presented a bill to the board of supervisors of the county for their fees at the rate of seventy-five dollars each; which claim was rejected on the 6th day of December, 1878, by a resolution of the board denying the liability of the county. An application was then made to the court for an alternative writ requiring the board to audit the referees’ bill, which was granted; but on its return, it appearing on the face of the papers that Stillman’s appeal was from the entire determination of the commissioners of highways, and that that determination had been affirmed in part and reversed in part, the alternative writ was quashed. From this decision an appeal was taken by the relators to the General Term.
    At that time it was believed that the appeal taken by Stillman was of the nature indicated ; but it was subsequently ascertained that he had in reality appealed from a part only of the determination of the commissioners of highways, and that his appeal was, therefore, entirely successful. The relators then discontinued the appeal, and this application was made to the court on an affidavit setting up the facts subsequently ascertained. The board made return to the writ, alleging the former proceedings as a bar, and in compliance with that view an order was granted dismissing the alternative writ, and denying a motion for a peremptory one.

      M. H. Ilirscliberg, for the appellants.
    The referees’ fees are charges upon the county. (1 E. S , title 1, art. 4, chap. 16, part 1, § 86; chap. 180, Laws of 1845; chap. 455, Laws of 1847; People v. Commissioners of Highways, 8 N. Y., 481; People v. Baker, 19 Barb., 240.) The former proceedings did not constitute a bar. There was no adjudication in the technical sense. The utmost that can be claimed is, that in effect and in law the respondent by its alleged return merely moved to quash the alternative writ, on the ground that on its face it made out no case ; which motion was granted. (Commercial Bank v. Canal Commissioners, 10 Wend., 25; Peoples. Supervisors of Ulster, 32 Barb., 473; 20 How., 206; 2 R. S., part 3, title 2, chap. 9, §§ 54, 55, 56, 57; Bissell v. Kellogg, 60 Barb., 617; Lanigan v. The Mayor, etc., 70 N. Y., 454.) But even admitting that the return to the first writ is to be regarded as a demurrer, no estoppel exists; for judgment on demurrer is never a bar to another action, unless the second action present the precise case made by the pleadings in the first. (Stowell v. Chamberlain, 60 N. Y., 272; Burdick v. Post, 12 Barb., 168; Manny v. Hams, 2 Johns., 24; Snider y. Croy, 2 id., 227, and cases cited; Lampen y. Kedgewin, 1 Mod., 207.) A judgment rendered on any issue, whether of fact or of law, is no bar unless the same question is twice presented. (8intzenick v. Lucas, 1 Espinasse, 43; Young y. Mummell, 2 Hill, 481; Lawrence v. Hunt, 10 Wend., 83y Smithy. Weeks, 26 Barb., 463; Yates v. Lyon, 61 id., 205; Mason’s Executors v. Alston, 9 N. Y., 28; Dunckely. Wiles, 11 id., 420; Sweet v. Tuttle, 14 id., 465; Campbell v. Consalus, 25 id., 613; Rockwells. Brown, 36 id., 207; Peoples. Johnson, 38 id., 63; Woodgatev. Fleet, 44 id., 1; Sager v. Blain, id., 445; Bennetts. Cook, 45 id., 268; Malloneyy. Horan, 49 id., Ill; Platter probate will Frederick Diez, 50 id., 88; Brinkley y. Brinkley, id., 184; East JY. Y. and J. B. Co. v. Elmore, 53 id., 624; Pullman y. Alley, 53 id., 637; Pathbone v. Honey, 58 id., 463; Fisher v. Hope Mut. Life Ins. Co., 69 id., 161; Douglass v. Ireland, 73 id., 100.) The order constitutes no bar to subsequent proceedings, for the reason that it was not in favor of the respondent, generally, on the merits, but merely dismissed the alternative writ and deified the motion for a peremptory one; it was analogous and equivalent to a judgment of nonsuit or one dismissing a complaint; and such a judgment is no bar whether granted before or after trial. (Harrison v. Wood, 2 Duer, 50; Ripley v. Hazelton, 3 Daly, 329; Brintnall v. Foster, 7 Wend., 103; Bobbins v. Wells, 1 Robt., 666; Bobbins v. Wells, 26 How., 15; Mechanics’ Banking Association v. Mariposa Co., 7 Robt., 225; Dexter v. Clark, 22 How., 289; Wheeler v. Buckman, 35 id., 350; Cillilan v. Spratt, 41 id., 27; Coit v. Beard, 33 Barb., 357; Dexter v. Clark, 35 id., 271; Harveys. Large, 51 id., 222; BurweTl v. Knight, 51 id., 267; White v. Madison, 26 N. Y., 117; Harris v. Harris, 26 id., 433; Audubon v. Excelsior Ins. Co., 27 id., 216; People v. Vilas, 36 id., 460; Wheeler v. Buck-man, 51 id., 391; Harris v. Delaware, Lackawanna and West. B. Co., 61 id., 656; Matter of Spellman v. Terry, 74 id., 448; Beebe v. Bull, 12 Wend., 504; Bully. Hopkins, 7 Johns., 22; Wolf v. Washburn, 6 Cow., 262.) An application for a writ of mandamus is a motion within the spirit of section 401 of the Code.
      {People ex rel. Gagger v. Supervisors, 1 Abb. [N. S.], 78.) An order on a motion is not conclusive, as an adjudication, as to a fact which might have been, but which was not, actually litigated. The motion may always be renewed upon a different state of facts, or by supplying defects in proof. (Smith v. Spalding, 3 Eobt., 615; Dickerson v. Gilliland, 1 Cow., 482; Van Rensselaer v. Sheriff of Albany, 1 id., 512;. Snyder v. White, 6 How., 321; Mack v. Patchin, 29 id., 29; Belmont v. Brie Railway Go., 52 Barb., 637; Brinkley v. Brinkley, 47 N. Y., 49; Brinkley v. Brinkley, 50 id., 184; Book v. Moss, 70 id., 466; Riggs v. Pur-sell, 74 id., 370; Simson v. Hart, 14 Johns., 63-76; Arden v. Patterson, 5 Johns. Ch., 44; Hackelt v. Gonnett, 2 Edw., 73.) Proceedings upon mandamus, and other prerogative wilts such as prohibitions and habeas corpus are not in their nature conclusive, at least, until a final and definitive judgment has been passed. {Suart v. Wolfe, 3 T. E., 340; Le Oaux v. Eden, Doug., 620, note; Yates v. People, 6 Johns., 338, 339, 430, 431, 445, 468; People v. Kelly, 1 Abb. [N. S.], 438; People v. Fancher, 1 Hun, 27; Hughes v. Blake, 1 Mason, 519; Garmony v. Hoober, 5 Barr., 305; Quackenbush v. Bide, 3 Barb., 469; Kirkpatrick v. Stingley, 2 Carter, 269.)

      George W. Greene, for the respondent.
    The appeal should be dismissed and the order or judgment appealed from affirmed: 1. Because a motion once denied cannot be renewed without leave granted. {Dolfus v. Frosch, 5 Hill, 493; Willett v. Fayerweather, 1 Barb., 72; Harker v. McBride, 1 How. Pr., 108; Pikey. Power, id., 164; Bascomb v. Feazler, 2 id., 16.) 2. Nor can it be renewed on substantially the same facts without leave of the court. {Hally. Emmons, 39 How. Pr., 187; Snyder v. White, 6 id., 321; Smith v. Spaulding, 3 Rob., 615; 30 How., 334; Bellenger v. Martindale, 8 id., .113; Mills v. Thursby, 11 id., 114.) The facts upon which this motion was made for a peremptory mandamus were and are the same as those in the former motion, save the notice of appeal. {Patterson v. Bacon, 21 How. Pr., 478; 22 Abt. Pr., 142.) But if this case is to be considered upon its merits, the order or judgment should be affirmed: 1. Because the board of supervisors is a body of inferior jurisdiction and power, having-no authority or power, except it be given by legislative enactment. (People v. Lawrence, 6 Hill, 244; Board of Supervisors of Richmond Co. v. Bilis, 59 N. Y., 620; People ex rel. Hadley v. Supervisors of Albany Go., 28 How. Pr,, 22; People v. Stocking, 50 Barb., 573.) 2. The act providing for the appointment of referees in such cases of appeal has made no provision for their compensation in cases where the order appealed from is reversed in part and confirmed in part, as was done by the appellants in this case. No fees of county or town officers are chargeable upon the county, except as expressly provided by law. (§ 23 of act of 1845, chap. 180; § 8 of chap. 835, Laws of 1869; Board of Supervisors of Richmond County v. Bilis, 59 N. Y., 620.)
   Gilbert, J. :

We think that the former adjudication in this matter does not affect this proceeding. The question then before the court was whether the fees of referees were a county charge, when the appeal was from the entire determination of the commissioners, and such determination had been reversed only in part. The question now arises indeed upon the same appeal, but it has turned out to be an appeal only from that part of such determination which affects the appellant’s yard and enclosure. That question was not involved in the former proceeding, and could not have been adjudicated therein. Such proceeding is not, therefore, a bar. “ If a man mistakes his declaration and defendant demurs, there is no doubt but that the plaintiff may set it right in a second action.” (Vin. Ab. Judgt, 2, 4; Chit. Pl., 227; Gilman v. Rives, 10 Pet., 301; Wilbur v. Gilmore, 21 Pick., 253; Dutchess of Kingston’s Case, 2 Smith Lead. Cas. [6th Am. ed.], 808; Stowell v. Chamberlain, 60 N. Y., 272.)

The referees reversed that part of the determination of the commissioners which was embraced in the - appeal. The statute governing this case expressly authorizes an appeal to reverse a determination of this kind in part. (Laws 1847, chap. 455, § 8; 1 R. S., 518, § 86.) It also provides that when such determination shall be reversed the fees of the referees shall be a county charge. (Laws 1847, chap. 455, § 9.) The true interpretation of this section is that the fees of the referees shall be a county charge when the appellant succeeds on his appeal. The Legislature evidently intended to provide for the payment of such fees, either by the appellant or by the county upon every appeal. But in this case the appellant clearly is not liable, because the determination was modified and not confirmed. Such modification was in legal effect a reversal pro tanto. 'The statute giving the appeal and that fiying the fees of the referees and providing for their payment are in pari materia, and the intention of the Legislature may properly be gathered from both. (Smith v. People, 47 N. Y., 330.) Taking those statutes together we think it is quite evident that the word “ reversed ” was intended to embrace a reversal in part as well as an entire one. “ When the Superior Court gives a judgment different from the inferior, they are said to reverse the proceeding.” (Bouv. Law Dic., tit. Reversal.)

The order should be reversed, and a peremptory writ should issue, with costs.

Pratt, J., concurred ; BarNard, P. J., not sitting.

Judgment reversed, and peremptory writ of mandamus issued, with costs, with leave granted to appeal to Court of Appeals.


author: Gilbert, J.

text:
    In the Matter of the NEW YORK AND BRIGHTON BEACH RAILWAY COMPANY for the Appointment of Commissioners to Appraise, Etc.

      Eminent domain — when a railroad company cannot acquire title to lands already taken, for public use — Chap. 583 of 1874 and chap. 489 of 1875 — land acquired under, cannot be taken by a railroad company.

    Chapter 583 of 1874, as amended by chapter 489 of 1875, authorized the park commissioner’s of the city of Brooklyn to lay out and improve a public highway through-the town of Gravesend, and on and across Coney Island to the Atlantic Ocean, and to lay out, open and imxrrove a concourse or shore road, extending along the beach, not to exceed 3,000 feet, and in depth not more than 1,000 feet, and provided that when laid out and improved the said highway and concourse should be under the exclusive charge and management of the park commissioners, and the cost of their maintenance should be a charge upon the city of Brooklyn.

      In pursuance of these acts the park commissioners acquired title to the necessary lands, and laid out and improved the said highway and concourse, grading the latter, planting trees therein, and otherwise embellishing it. The petitioner, a railroad company, sought to acquire title to a considerable portion of the concourse lands to be used for the purposes of a depot, engine house, etc., and accordingly applied for the appointment of commissioners to apioraise the damages to be paid therefor.
    On appeal from an order appointing commissioners for that purpose, held,, that the uses to which the petitioner sought to apply the lands were entirely inconsistent with the uses for which the lands had been acquired, and to which they were then applied.
    That the general railroad act did not authorize the petitioner to acquire title to lands which had already been taken for, and applied to a public use under an express act of the Legislature.
    That while the Legislature has power to supplant one public use by another1, yet that such power will not be implied from a general authority to acquire land, but must be conferred in express terms.
    Appeal from an order made at Special Term appointing commissioners to appraise damages, in an application of the New York and Brighton Beach Railway Company to acquire title to certain lands,

      John II. Knaebel for the Brooklyn Park Commissioners, appellants.

      John Sidney Davenport, for the respondent.
   Gilbert, J.

This is an appeal from an order of the Special Term appointing commissioners, on the application of the New York and Brighton Beach Railway Company, in a proceeding under the general railroad act, to acquire certain lands for railroad purposes. \

The petitioner seeks to appropriate in fee and devote to its-exclusive use for the purposes of a depot, engine-house, etc., a considerable part of the concourse lands which were acquired for public use as a seaside concourse or park under special statutes (Laws 1874, chap. 583; Laws 1875, chap. 489), and which are now entrusted to the care, management and control of the park commissioners of Brooklyn. The park commissioners object to the proceeding, on the ground that the petitioner is not entitled to supplant with railroad uses the public uses for which the lands in question were specially acquired and are now held under the statutes aboye cited.

By section 1 of chapter 583 of the Laws of 1874, as amended by chapter 489 of the Laws of 1875, the Brooklyn park commissioners were directed to lay out and improve a public highway or avenue (now called the Ocean Parkway) through the town of Gravesend, and on and across Coney Island to the Atlantic Ocean; and they were further directed as follows, viz.: to “ lay out and open and improve such concourse or shore road at the southerly terminus of said highway, hereby extended as in their judgment, shall be wise and proper, not exceeding 3,000 feet in length on each side along the beach, and not exceeding 1,000 feet in width, exclusive of such accretions and additions which may be caused by the action of the elements, or otherwise, on the southerly side thereof, which accretions, if any, shall attach thereto and be under the control and care of the Brooklyn park commissioners as the said concourse or shore road shall or may be ; and for this purpose they may enter upon any lands that may be necessary, and cause a proper survey and map of the said avenue as well as of the district of assessment therefor to be made.” By section 3 of the said act of 1874, the commissioners are directed “ to grade and otherwise improve said concourse,” etc. By section 7 of the same act the commissioners are authorized “to improve the said avenue and one hundred feet road, and said concourse, lateral branch, or shore road at the ocean beach, according to a plan to be devised or adopted by them ; and for that purpose they may cause the same to be graded, paved, curbed, guttered and bridged, and shade trees planted thereon, and may lay out and construct such carriageways, side-walks, and areas, with such terraces, drives or concourses on the ocean beach as they may deem expedient, and such improvements may be made in sections, and from time to time, if they shall so elect.” By section 11 of the same act- it is declared as follows : “After the said avenue shall have been opened the said avenue, and the concourse lateral branch or shore road, at the ocean beach, shall' be under the exclusive charge and management of the said park commissioners, and they shall make and enforce rules and regulations for the proper use thereof. And after the said avenue and shore road shall have been improved, as herein-before directed, its subsequent maintenance shall be a charge upon the city of Brooklyn, and such amounts as the said park commissioners shall, from time to time, by resolution, determine to be necessary for the purpose, shall be annually raised by the board of supervisors of the county of Kings, and collected in the taxes of the then current year, and paid over to the said park commissioners.”

Pursuant to these statutes the Brooklyn park commissioners, by a resolution formally passed at a meeting of the board, laid out the concourse, and declared its bounds to be, on the south, the high-water mark of the Atlantic Ocean ; on the east, a line drawn parallel to and distant 1,500 feet easterly from the center line of the Ocean Parkway, as theretofore laid out; on the north, a line parallel to and distant northerly 1,000 feet from high-water mark of the Atlantic Ocean ; and on the west, a line drawn parallel to and distant 1,250 feet westerly from the center line of Ocean Parkway.

The lands thus required for the concourse were surveyed, mapped and regularly condemned by due process of law, and thereafter the park commissioners took possession thereof, and proceeded to improve the same as required by law- — grading the land, constructing a tarred drive, with a water-break, planting-trees, erecting shelters, introducing water, providing gas-lamps, etc.

The petitioner seeks in this proceeding to acquire in fee a considerable part of the concourse, and to devote the same to the petitioner’s exclusive use for the erection of an engine-house, depot, etc. It is evident that such railway uses are utterly inconsistent with the concourse uses, for which the lands in question were acquired. It also appears that, in view of the present public use of the tarred road and the uses for which the rest of the concourse is designed, the proximity of the petitioner’s cars and engines would be a public nuisance and a source of annoyance, and even danger, to the throng of equestrians and other persons using horses on the drive.

While the Legislature has power, by express statute, to supplant one public use by another, yet the delegation of such power must be made in. express terms. It cannot be implied from a general power to acquire lands. The language of the general railroad act, conferring power to acquire lands for the use of a railroad, does not authorize a railroad corporation to subvert an appropriation of property to other public uses which are inconsistent with the use thereof for a railroad. (In re Buffalo, 68 N. Y., 171.) To take property already appropriated to another public use, the act of the Legislature must show the intent so to do by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting the intent. The Legislature is not presumed to have abandoned the former use and turned over the property to the later use, without clear and unmistakable expression of that intention. (Mills Em. Dom., chap. 5, § 45, and cases cited.)

In the case of The Rochester Water Commissioners (66 N. Y., 413), Judge AlleN said: “A corporation, either private or municipal, cannot, under a general power to take lands for a public use, take from another corporation, having the like power, lands or property held by it for, a public purpose pursuant to its charter.” “ Lands held upon a special trust for a public use cannot be appropriated to another public use without special authority from the Legislature.” In re Boston and Albany R. R. Co., (53 N. Y., 574), the court held that prior public uses for park purposes were sacred from the invasion of a railroad company, proceeding under the general act, and in the case In re Buffalo (68 N. Y., 167), it was held that a railroad could not be interfered -with under a general power to take lands for a canal. In Rensselaer and Saratoga R. R. Co. v. Davis (43 N. Y., 146), it is said by Judge Andrews : “ Statutes authorizing condemnation are not to bo extended by inference or implication.” * * * It is a prerogative power necessary to the government and the welfare of its citizens. At the same time it should not be allowed to be exerted by or in behalf of individuals or corporations, except under the express sanction and clear authority of law.”

The petitioners claim that part of the concourse lands has been abandoned, but we think that such a claim is not supported by the evidence. No right to abandon exists in the park commissioners. They are trustees of express public trusts. The land was acquired for tbe execution of, and is now devoted to, the purposes of such, trusts. It cannot, without legislative authority, be diverted from the purposes for which it was acquired. (The Brooklyn Parle Comrs. v. Armstrong, 45 N. Y., 234; In re B. and A. R. R. Co., 53 id., 576.)

The testimony as to the supposed “Park street,” so far from showing any intention to abandon any lands, or any purposes in respect to them, shows on the part of the persons concerned in the negotiations for the opening of the street, a desire to develop and perfect the original plan by straightening the northerly boundary, and to that end acquiring additional lands largely exceeding in quantity the small part, the separation of which from the concourse proper, by dedication to street uses, was discussed between the parties to the conference. But the subject of Park street never proceeded beyond mere informal discussion. Nothing binding on any one was accomplished.

This order, so far as it affects the concourse, must be reversed, with costs and disbursements.

Pratt, J., concurred; BarNArd, P. J., not sitting.

Order so far as it affects the concourse reversed, with costs and disbursements.


author: Gilbert, J.:

text:
    THE SYRACUSE CHILLED PLOW COMPANY, Appellant, v. GEORGE E. WING AND CAROLINE WING, Respondents.

      Post-nuptial agreement betwem'hnsband and wife — transfer from husband to wife — what consideration is sufficient to support it.

    In 1844 the defendant Caroline Wing received from her father’s estate $1,666, $1,366 of which was received by her husband, and was by him used in buying a farm. Thereafter the husband, at various times, conceded that the money belonged to his wife, and promised to pay it to her. In April, 1878, a computation was made, by which it appeared that there was then due to the wife $4,611.32, for which amount the husband gave to a third party his bond secured by a mortgage on the farm, with the understanding that they should be, as in fact they were, assigned to the wife. The farm was then subject to a mortgage for §1,400, with, interest thereon, from May 1, 1866, which was then owned by the wife; to a further mortgage for §2,200, and interest from December 10, 1877, and to the wife’s inchoate right of dower. In September, 1878, the husband conveyed the farm, through a third party, to his wife (subject to the §2,200 mortgage), in payment of the two mortgages then owned by her. The farm was worth about §5,700.,
    In an action by a judgment-creditor of the husband to set aside the transfer to the wife as fraudulent as against him, held, that as it appeared that the conveyance was made for a full consideration, and as no fraudulent intent was proved, the action could not be maintained.
    Appeal from a judgment in favor of the defendants, entered' upon the trial of this action by the court without a jury.
    The action was brought by the plaintiff, a judgment-creditor of the defendant George E. Wing, to set aside as fraudulent a conveyance made by him to his wife.
    The court below found that on the 1st day of May, 1844, the defendant, Caroline Wing, became entitled to the sum of $1,666 from the estate of her father; that her husband, George E. Wing, received $1,366 of the said money and applied the same to the-purchase of a farm to which he then took the title in his own name; that from time to time thereafter the said money was spoken of by and between the defendants as money belonging to said Caroline Wing, and said George E. Wing, prior to any liability to the plaintiff or its predecessor in interest, had promised the said Caroline to execute to her a paper to show for said money • that no paper was executed until on the 8th day of April, 1878, when said George E. Wing executed and delivered to one Alexander McGeorge a mortgage upon the premises described in the complaint, as collateral security to his bond of the same date to said McGeorge, both being conditioned for the payment of the sum of $4,611.32, with interest on demand, said sum being the amount of said $1,366, with interest from May 1, 1844, said bond and mortgage being executed and delivered under an agreement with said McGeorge that he would, and he immediately did, assign the same to said Caroline Wing on account of and as security for the payment of the said sum of $1,366, with interest as aforesaid ; that on the 4th day of May, 1866, the said Caroline had purchased, with money belonging to her, a mortgage for $1,400 against the said form, which had been given to one Mary D. Griffin in 1860; that on the 10th day of December, 1877, a mortgage upon tbe premises described in tbe complaint, securing tbe payment of tbe sum of $2,200, with interest, was given to one John Wing; that said Caroline Wing continued tbe owner and bolder of tbe said two mortgages, with interest on tbe first from April 8, 1878, and on tbe other from May 1, 1866, at six per cent per annum, until tbe 24th day of September, 1878, at which latter date tbe husband conveyed the farm to her, through a third person, subject to the $2,200 mortgage, and in payment of tbe two mortgages then owned by her; that tbe market value of said premises, at tbe time of such conveyance, was the sum of $5,700; that tbe said conveyance to the said Caroline Wing was fairly and honestly made, and without any intent to cheat or defraud tbe creditors of George E. Wing.
    Tbe plaintiff’s judgment was recovered on September 24, 1878, in an action commenced December 1, 1877, for an indebtedness contracted m January, 1877.

      Charles B. Sedgwick, for tbe appellant.

      O. D. M. Baker, for the respondents.
   Gilbert, J.:

This suit was brought to set aside a conveyance to tbe defendant, Caroline Wing, of a farm in Clinton, Dutchess county, and .to have such farm declared subject to tbe lien of a judgment recovered against her husband, George E. Wing and others, upon a joint liability. In tbe spring of 1878 tbe farm in question was subject to two mortgages : one made to Mary D. Griffin and then owned by Mrs. Wing, dated May 3, 1860, upon which there was then due' $1,400 principal, with interest from May 1, 1866, at six per cent; tbe other to John Wing for $2,200 and interest, dated December 10, 1877. The premises were also subject to the inchoate right of dower of Mrs. Wing.

Post-nuptial agreements between husband and wife, though void in law, will be upheld in equity if made bona fide, and upon good consideration. An additional portion brought by the wife after marriage is a sufficient consideration both against creditors and purchasers. If the husband has received a fair and reasonable consideration for the thing settled that repels the presumption of fraud. So the relinquishment of the wife’s dower will be deemed a sufficient consideration. (2 Kent’s Com., 163; Shepard v. Shepard, 7 Johns. Ch. R., 59; Wickes v. Clarke, 8 Paige, 165; Babcock v. Eckler, 24 N. Y., 623; Hunt v. Johnson, 44 id., 27; Woodworth v. Sweet, 51 id., 8; Jaycox v. Caldwell, id., 395; McCartney v. Welch, id., 626.)

In the case before us it appears that Mrs. Wing received in May, 1844, as her share of her father’s estate $1,666, all but $300 of which was appropriated to the purchase of a farm. The husband made the purchase and the farm was conveyed to him. Mrs. Wing testified that her father’s estate was settled on May 1, 1844 ; that she was then a minor, and that from that time there were conversations between her husband and herself with reference to that money, to the 'effect that the money was hers and that she should have it. Mr. Wing, who was called by the plaintiff as a witness, testified on his direct examination that he had given to Mrs. Wing a note for the money aforesaid, and that he had paid the note by giving her a mortgage. That mortgage was given in April, 1878, pending the suit in which the judgment against Mr. Wing and his partners was recovered, for the purpose of securing the payment of the sum of $1,366, the part of Mrs. Wing’s share of her father’s estate before referred to and the interest thereon.

It was proved, and the court below found, that the value of the premises conveyed to Mrs.- Wing was $5,700. The conveyance to her was subject to said mortgage of John Wing for $2,200. It is apparent, therefore, that such conveyance cannot bo impeached on the ground of an excess in value of the premises conveyed over the amount of the demands of Mrs. Wing. Were such demands fair and just or only colorable ? The trial judge found that the conveyance was made upon a full and fair consideration. He did not find, nor was he requested to find, that it was made with a fraudulent intent.

We think the evidence is quite sufficient to sustain the finding in favor of the validity of the conveyance. In any point of view it is supported by the strong moral obligation which rests upon a husband to provide for his wife, and the evidence fairly consid-erecl justifies tbe' belief that Mr. Wing received bis wife’s patrimony, not in the assertion of his marital rights, but to hold the same for the benefit of his wife. Creditors may have been misled by his apparent ownership, but no more so than if Mrs. Wing had held an unrecorded mortgage or agreement to convey. Nor did the lapse of time bar her claim, for that might be and was waived by her husband.

Upon the whole, we think the judgment should be affirmed, with costs.

Pratt, J., concurred ; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    DELOS D. PIER, Respondent, v. GEORGE GEORGE, Appellant.

      Report showing the amount of capital paid in — must state amount paid in cash, and in property, separately — sect. 12 of chap. 40 of 1848 — sect. 2 of chap. 333 of 1853 —when trustee liable for a false report — evidence of knowledge by a trustee of its falsity — assignee of debt may enforce personal liability caused by — sect. 15 of chap. 40 of 1848.
    The trustees of a manufacturing corporation filed a report, as required by section 12 of chapter 40 of 1848, stating as follows, viz. : “ Capital stock, $60,000; capital paid in, §36,500.” Of the §36,500 stated to have been x^aid in, only $11,500 had been paid in cash, the balance of $25,000 having been paid in property, for which full paid up stock had been issued.
    In an action to charge the trustees individually with the payment of the debts of the company, under section 15 of chapter 40 of 1848, on the ground that they had signed a false report, held, that the term “ capital paid in,” as used in section 12 of the act of 1848, meant capital which had been paid in in cash.
    That section 12 of chapter 40 of 1848, and section 2 of chapter 333 of 1853, were in pan materia and were to be read together.
    That the act of 1853 had not been repealed by any of the subsequent acts amending section 12 of the act of 1848.
    That the report required by section 12 of chapter 40 of 1848, as amended by section 2 of chapter 333 of 1S53, must state the amount of capital stock paid in in cash, and the amount paid in in property, separately and according to the actual fact.
    That the trustees were liable, under section 15 of chapter 40 of 1848, for siguing a false report.

      The minutes of the proceedings of the corporation, are admissible to show knowledge on the part of a trustee of the falsity of the report.
    The right to enforce the personal liability of a trustee, incurred by his signing a false report, passes with an assignment of the debt.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action ivas brought to charge the defendant with personal liability for a debt of a corporation of which he was a trustee, for faffing to file, in 1875, the annual report required by law; and for making a false report.
    A report was actually filed on January 19, 1875, signed by a majority of the trustees, including the defendant, and verified by the secretary, as follows :
    “Capital stock,.$60,000.00
    Capital paid in,. 36,500.00
    Amount existing debts, - - - ■ - 30,130.24.”
    Of the capital paid in $11,500 was paid in cash and $25,000 was paid in property, for which full paid-up stock was issued.
    The principal question in the case was whether the omission in this report to state separately the amount of capital paid in cash, and the amount paid in property, rendered the defendant liable personally for the debts of the corporation.
    The debt in question was not contracted in favor of the plaintiff, but came to him by assignment after the defendant’s liability was said to have accrued.-
    Upon the first trial the plaintiff was nonsuited. The General Term set aside the nonsuit. (14 Hun, 568.) A motion for reargument at General Term was made and deified. (17 Hun, 207.)
    From the judgment entered upon the new trial this appeal was taken.

      JE. A. Brewster, for the appellant.

      Charles H. Searle, for the respondent.
   Gilbert, J. :

The act passed in 1875 (chap. 510), amendatory of the general manufacturing act of 1848 (chap. 40), merely'modified the provision contained in section 12 thereof respecting the time of making the arinnal report, and added a proviso that nothing in the amendatory act 'contained should affect any action pending at the time it became a law. In other respects the provisions contained in section 12 of the act of 1848, as amended by chapter 657 of the Laws of 1871, were left untouched. The act of 1853, chapter 333, amended the act of 1848, but it was an independent enactment, and was not an amendment of section 12 of the act of 1848, specifically. The omission to re-enact the act of 1853, in the amendatory acts subsequently passed, therefore, affords no basis for an inference that the Legislature intended to repeal that act or any of the provisions thereof. Section 12 of the act of 1848 as amended, and section 2 of the act of 1853, are in pari materia, and must be read together. So read, it seems to me to be perfectly clear that a report which treats property, purchased by the issue of stock pursuant to the act of 1853, as capital paid in, is a violation of section 12 of the act of 1848. The preceding sections of that act ¡irovide in what manner the capital of the corporation shall bo paid in. They relate exclusively to contributions in money, and section 14 expressly provides that nothing but money shall be considered as payment of any part of the capital stock. While property necessary for the business of the corporation and purchased at its value by stock issued irarsuant to section 2 of the act of 1853 may, by virtue of that section, be treated as a contribution of capital, so as to relieve stockholders from liability under the tenth section of the act, yet that section of the act of 1853 prohibits the including of such property in the annual report of the capital actually paid in, and requires that it shall be reported according to the fact. Whether the ordinary signification of the -words “capital paid in,” or the meaning thereof as modified by the act of 1853 be applied, therefore, the company failed to comply with the twelfth section of the act.

The fifteenth section of the act of 1848 provides that if any certificate or report made, or public notice given by the officers of any company incorporated under the act in pursuance of the provisions thereof, shall be false in any material representation, all the officers who shall have signed the same, knowing it-to be false, shall be jointly and severally liable, etc.

That the report in controversy did represent that $36,500 of the capital of the corporation had been paid in, .when in truth $25,000 of that amount represented property purchased by the issue of stock pursuant to section 2 of the act of 1853 is undisputed. It is urged that that representation was not false, because capital may be paid in with property ás well as money, and that the second section of the act of 1853 requires no discrimination in that respect. If the views on this subject already expressed are correct that argument has been sufficiently answered, and it has been shown that the representation was that the $36,500 of the capital had been paid in in cash, although the report merely stated that it had been “ paid in,” omitting the words “ in cash.” The omission to comply with the requirements contained in the second section of the act of 1853, by reporting the portion of the capital contributed by means of purchases of property, necessarily. produces that result. Such representation was, therefore, false. (See Arthur v. Griswold, 55 N. Y., 400.) I think the minutes of the proceedings of the corporation received upon the trial were properly admitted to show knowledge on the part of the defendant of the falsity of the report, and that such knowledge was satisfactorily proved.

The action, though sounding in tort, is to enforce a statutory liability against .the defendant for the debt of another. The right of action under the statute passes with an assignment of the debt. (Bonnell v. Wheeler, 1 Hun, 332; Bolen v. Crosby, 49 N. Y., 183.)

The judgment must be affirmed, with costs.

Pratt, J., concurred; BarNakd, P. J., .not sitting.

Judgment affirmed, with costs.


text:
    THE POUGHKEEPSIE GAS COMPANY, Respondent, v. THE CITIZENS’ GAS COMPANY, Appellant.

      Gas main, laid at request of owner — still continues to be the property of the gas company — a mal company cannot use it, even at the request of the owner of the house

    In 1873 the plaintiff, an incorporated gas company, at the request of one Eastman, who had erected a row of ten buildings on land belonging to him, laid amain in said land in the court yards in front of said houses, and connected each house therewith in order to supply the same with gas. The main was made larger than was necessary to supply the ten houses, in order that it might’ have sufficient capacity to furnish gas to another block of buildings proposed to be erected. It belonged to and was laid at the expense of the plaintiff, about three and a-half feet below the surface of the ground. Subsequently the houses were sold to various persons, to whom the plaintiff supplied gas by means of the said main. No mention of the gas main was made in any of the deeds.
    In 1879, the defendant, a rival gas company, with the consent of the owners of each house, severed the said main from the general main laid by the plaintiff in the street in front of the houses, connected it with its own main laid in the said street, and thereafter supplied the houses with gas.
    In an action brought by the plaintiff against the defendant for such wrongful act held, that it was entitled to a judgment requiring the defendant to reconnect the said main with the plaintiff’s street main, and forever enjoining it from again interfering therewith.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The plaintiff and defendant are gas companies, both duly organized under the general gas laws of this State, and located in the city of Poughkeepsie, and authorized by the common council to lay their gas-mains under the surface of the streets and avenues of said city.
    ■ In 1873, II. G. Eastman was the owner of certain lands in said city, on a part of which he made what is known as “ Eastman Terrace,” and erected thereon ten first-class dwelling-houses. Eastman wanted his block lighted with gas, and asked plaintiff’s superintendent what the cost to him would be to lay a main directly in front of the houses, and was told, “that there would be no expense for the main ; that it belonged to tho company; ” and he said: “ go ahead.”
    The plaintiff laid a three-inch iron pipe from its main in South avenue under and across the lawns in front of tbe bouses ; about three feet north of the stoops. It was larger than was needed to supply the block and was laid of that size in order to accommodate another block proposed to be erected. The length of the pipe was 238 feet, and it was laid three and a-half feet below the surface. From the front of the buildings to the “ driveway” in front is forty feet.
    After the pipe was laid the grounds were ornamented with flower-beds, walks and grass-plats, and it was not possible to remove it without breaking up the ground and destroying the appearance of the lawns. This pipe, if taken out, would not be worth the cost of removal.
    Eastman conveyed all the property to Innis and Pelton, by deed, April 1, 1874, and they convoyed the ten houses and lots, by separate deeds, to the several purchasers,, between May 11th and October 1, 1874. All of said deeds contain covenants of warranty and seizin, and neither of them contain any reservation or mention of any right or claim of the plaintiff1 to this pipe.
    The plaintiff furnished gas to houses Nos. 2 and 4, for Eastman, before his sale ; and to all the owners and occupants after his sale.
    In pursuance of the written consent of the owner of each house, the defendant, on January 7, 1879, severed the pipe, within the curb-line, from the plaintiff’s gas-main in South avenue, and connected it with the defendant’s gas-main in the same avenue, and put its own meters in the houses, and thenceforth supplied them with its gas. It was the custom when changes were made from one company to the other to sever the connection at the curb. The severance was done in the best possible manner.
    The plaintiff claimed to be the owner of this pipe, and brought this action to compel delivery of the same to the plaintiff.
    The judgment directed the defendant to re-connect the pipe with plaintiff’s main on Market street, and to deliver up the pipe to the plaintiff, and enjoined the defendant from again interfering with, or in any way molesting or controlling said pipe, and directed that plaintiff recover costs.

      H. A. Nelson, for the appellant.
    The pipe was intended to be and became a permanent accession to the realty. (Murdoch v.
      Gifford, 18 N. Y., 28, 33; Potter v. Cromwell, 40 id., 287; Van Hess v. Packard, 2 Peters, 144; Firms v. Maw, 3 East, 52; BuTkleyY. BulJcley, 11 Barb., 54; Miller y. Plumb, 6 Cow., 666; Pool’s Case, 1 Salk., 368; Richardson v. Copeland, 6 Gray, 536; Sudbury y. Jones et al., 8 Cush., 184; Murphy v. Marland, 8 id., 575; Faber v. Robinson, 36 Barb., 484; Powell v. McA.shen, 28 Missouri R., 70; Providence Gas Co. v. Thurber, 2 R. I. Rep., 22; Voorhies v. McGinness, 48 N. Y., 278, 284; McRea v. (?e7&-¿rai IV". Bk. of Troy, 66 id., 489.) The several purchasers became the owners of so much of this pipe as lay in their soil, subject only to an easement in favor of each owner, in every other part of the pipe. (Flint v. Bacon, 13 Hun, 457; Hand v. Griffith, 84 How., 305; Butterworth v. Crawford, 46 N. Y., 349.)

      Thompson, Weeks & Town, for the respondent.
   Gilbert, J. :

The trial court found that the pipe in question was laid at the request of Eastman, the owner of the premises over which the same ran, at the plaintiff’s expense, and that it was understood and agreed between the plaintiff and Eastman that the pipe should belong to the plaintiff. These findings are sustained by the evidence. Indeed it is not disputed that the plaintiff owned the pipe at the time it was laid. The only pinpose of it was to conduct a supply of gas to buildings erected upon Eastman’s land, to be furnished by the plaintiff The transaction amounted to a license from Eastman to the plaintiff to eutor upon and use the land for the purposes mentioned. It is perfectly valid, although resting in parol. The statute of frauds does not apply to an executed parol license. (1 Wash. R. P., 399; Mumford v. Whitney, 15 Wend., 381; Wolfe v. Frost, 4 Sand. Ch., 77; Babcock v. Utter, 1 Keyes, 397.) The undisputed facts rebut the idea that the parties intended that the property of the plaintiff in the pipe should be divested by an annexation thereof to the freehold. No doubt the license mentioned could be revoked by Eastman, or by his grantees, and perhaps a conveyance by Eastman of the locus in quo would be per se á revocation. But the latter point was not suggested on the argument, nor does it appear that the convey-anees put in evidence include the site of the pipe. Until revoked the license remains in force.

It does not appear that either Eastman or either of his grantees have at any time notified the plaintiff of a revocation of the license.

Nor did the employment of the defendant by some of Eastman’s grantees to supply gas to their houses operate as a revocation, or authorize the defendant to use the plaintiff’s pipe. The defendant’s interference with and use of the pipe was a simple invasion of the property of the plaintiff, and was therefore illegal.

The judgment should be affirmed, with costs.

Pratt, J., concurred ; BARNARD, P. J., not sitting.

Judgment affirmed, with costs.