text:
    MARY L. FISHER, JULIA J. DE CAMP and FLORENCE J. MORRIAM, Appellants, v. CHARLES W. HERSEY, HENRY J. BOTCHFORD, GEORGE M. BOTCHFORD, and others, Respondents.

      Employment of puffer — when it vitiates a sale— order — when appealable.

    The defendants employed a puffer to bid at a sale in partition in this action, with intent to impose upon the plaintiffs and induce them to bid more for the property than they otherwise would have done. The xilaintiffs were thereby induced to purchase the property at a higher price than they otherwise would have given.

      Held, that they were entitled to have the sale set aside absolutely, and that an order denying a motion therefor and compelling them to carry out the sale at a reduced price was appealable, and should be reversed.
    Appeal from an order made at a Special Term denying tlic plaintiffs’ motion to sot aside the sale in this action, and confirming the sale upon terms specified in the order.
    The action was brought to obtain a partition or sale of certain premises, consisting of 800 acres of land in Lyonsdalo, Lewis county, on which was a largo tannery, owmed by the plaintiffs and the defendant Hersey, in common. Each of the three plaintiffs owned one undivided eighth of the premises, and the defendant Hersey owned five-eighths. The defendants Botchford, as partners of Hersey, claimed an equitable interest in his share. The sale was had under the judgment entered in this action, and the property was struck off to the plaintiffs at the sum of $32,500. The principal ground, upon which the motion to set aside the sale was based, was that the plaintiffs were induced to bid a larger sum than they otherwise would have bid by the fraudulent acts of Hersey, in employing one Whittier, as a puffer, to enhance the price. The affidavits read on the motion were conflicting, and the matter was sent to a referee to take evidence and report what was the market-value of the premises on the day of the sale, and wliether any fraud was practiced on the part of the defendant, Hersey, affecting the sale, or the bidding of the plaintiffs, and contributing to the purchase, and if any, what it was, and to file the proofs. The referee reported that the value of the property at the time of sale was $30,000. Ho also reported that some days before the sale Hersey, who lived in Boston, requested Whittier, who also lived in Boston, and was a leather dealer there, to attend the sale and bid upon the property, and it was agreed between them that Whittier should conceal from the plaintiffs the fact that he was acquainted with Hersey, and that there should ■ be no recognition between them at the sale. That in pursuance of that agreement, Whittier went to the plaintiffs a few days before the sale and represented to them that he was from the city of New York, had seen the notice of sale and wished to know the terms of sale and to inspect the tannery, and that he had a young friend who wished to engage in the business of tanning with him. Later in the same day he informed the husbands of two of the plaintiffs (the plaintiffs being married women) that he had visited the tannery and was favorably impressed with it, and ho wished to know if, in case the plaintiffs purchased the property, he could .buy it of them for $35,000, and if not, wdiether ho could rent it, and was told that the plaintiffs did not wish to rent, but wanted to sell. On being asked for his address, he gave it as follows : “I. Whittier, care of B. C. Wright, Grand Central Hotel, N. Y.” This interview was communicated to the plaintiffs. Whittier attended the sale and bid .upon the property, but there was no recognition between him and Hersey, and they appeared to be entire strangers to each other. The first bid was made by Hersey at $25,000 ; the plaintiffs then bid $30,000; Whittier bid $32,000 ; after some consultation the plaintiffs then bid $32,500, and Whittier soon after withdrew from the sale and went away in the cars. After the property was struck off to the plaintiffs they telegraphed •to Whittier at New York that they had bought the property and would sell to him at $35,000, and two days afterwards tlxey received a despatch from him dated at New York, saying that ho had decided to do nothing about the tannery. The referee also reported that Whittier resided in Boston and not in New York; that he and Hersey were well acquainted with each other ; that Whittier had no young friend or other person who wished to engage in the business of tanning Avith him, unless it Avas Hersey, Avho Avas of mature years; and that Whittier did not desire or intend to purchase the property of the plaintiffs for the sum of $35,000, or to rent it of them. Ho further reported that the representations and acts of Whittier, reported by him, Avere calculated to, and did deceive the plaintiffs, and cause them to bid off the property under the belief that Whittier desired to and would purchase the same of them for the sum of $35,000, and caused them to bid a larger sum than they Avould have bid, except for such belief; and to that extent the acts and untrue representations made by Whittier, in pursuance of his agreement Avith Hersey, Avere a fraud upon the plaintiffs.
    On the coming in of the referee’s report, the Special Term made an order setting aside the sale and directing a re-sale, unless defendants stipulated that plaintiffs’ bid be reduced to $30,000 and stand at that sum, and unless defendants pay certain costs of the motion and of the reference, as specified in the order; and such stipulation being then and there given, it was further ordered that if the costs be paid as therein provided, the motion to set aside the sale be denied, and the sale confirmed, except that the bid be $30,000. From that order the plaintiffs iioav appeal.

      Q. I). Adams, for the appellants.

      Walter Ballou, for the respondents.
   Smith, J.:

The facts found by the referee relating to the question of fraud are established by evidence which, in most material particulars, is uncontradicted. Not only did the defendant Hersey procure Whittier to act as a puffer at the sale, but by express arrangement betAveen them, concealment and artifice were resorted to, to impose upon the plaintiffs, and induce them to bid more for the property than they would othenvise have done. Laying out of view the misrepresentations made by Whittier before the sale, the conduct of Hersey and Whittier at the sale in pretending to be strangers to each other, according to their preconcerted arrangement, shows very clearly that the bid of Whittier was procured by Hersey to be made, with the design of taking advantage of the eagerness of the plaintiffs to enhance the price. The employment of a puffer for such a purpose, and not merely as a defensive precaution against an undue sacrifice of the property, is a transaction that cannot be justified by a court of equity. (Smith v. Clarke, 12 Ves., 477; Veazie v. Williams, 8 How. [U. S.] R., 148; 2 Kent's Com., 537.)

The conduct of the defendant and of his instrument, Whittier, was a fraud upon the plaintiffs, and they are entitled to be released from their purchase, and to have the property re-sold. Merely reducing their bid to a sum considered to be the value of the property, and compelling them to stand purchasers at that sum, is dealing out to them but partial justice. For aught that appears, they would not have bid, even that sum for the property, but for the deceit practiced upon them. They are entitled to an opportunity to bid at a fair sale.

It is insisted by the respondents that the order of the Special Term is discretionary and not appealable. Not so. The plaintiffs are entitled, absolutely, to have the fraudulent sale set aside, and it is not a case for imposing terms on granting relief.

The order of the Special Term should be reversed, and a re-sale ordered under the judgment, with ten dollars costs and disbursements of the appeal, and the costs of prior motion at Special Term, and the fees of referee and disbursements on reference to be paid by the defendant Hersey to the plaintiffs.

Talcott, P. J., concurred; Hardin, J., not sitting.

So ordered.


source: Caselaw Access Project

author: Smith, J. :

license: Public Domain

text:
    WILKES ANGEL, as Receiver of the Buffalo and Belmont Railroad Company, Respondent, v. THE TOWN OF HUME, Appellant.

      Town bonding — effect of chapt. 907 of Laws of 1869 — what the petition must contain — verification thereof.

    On the 10th of March, 1871, proceedings, to bond the town of Hiune in aid of a railroad, were commenced under chapter 907 of 1869, by filing a petition with the county judge who, on the 22d of April, 1871, determined that the requirements of the statute had been duly complied with, and caused a judgment to be entered to that effect in the county clerk’s office, and appointed commissioners as provided in the act. In February and July, 1872, the commissioners issued bonds to the company.

      Held, that the passage on May 12, 1S71, of chapter 925 of 1871, amending the act of 1869, did not nullify or avoid the judgment previously entered by the county j udge, nor render the subsequent issue of the bonds invalid.
    Section 1 of chapter 907 of 1869, provides that whenever a majority of the taxpayers of any municipal corporation in this State shall make application to the county judge by petition, verified by one of the petitioners, setting forth that they are such a majority of the taxpayers, and “ that they desire that such municipal corporation shall make and issue its bonds to an amount named in such jietition (but not to exceed twenty per cent of the whole amount of taxable property, as shown by said tax list and assessment roll),” the county judge, on proof of certain.facts, shall appoint commissioners to issue the bonds.

      Held, that to give the county judge jurisdiction to act the petition must show that the amount named therein did not exceed twenty per cent of the whole taxable property.
    That the verification of the petition must cover all the allegations contained therein, and one only including a portion thereof was fatally defective.
    That where jurisdictional defects in town bonding proceedings are patent upon the record, the bonds issued thereunder are void in the hands of the railroad company.
    Appeal - from a judgment in favor of the plaintiff, entered on tbe report of a referee. The action was brought to recover the amount of certain coupons attached to bonds, issued by the town of. Hume, in aid of the Belmont and Buffalo Railroad Company.^ The following is the petition upon which the proceeding for the issuing of the bonds was based :
    “ To the county judge of the county of Allegany, in the State of Nexo York:

    “ The petition of the undersigned respectfully states that your petitioners are a majority of the taxpayers of the municipal corporation in said State, known as the town of Hume, in the county of Allegany, whose names appear on the last preceding tax-list or assessment-roll of said corporation, as owning or representing a majority of the taxable property in the corporate limits of said corporation. That your petitioners represent a majority of all the taxable property in said corporate limits appearing on said last preceding tax-list or assessment-roll of said corporation.
    “ That your petitioners desire that such municipal corporation shall create and issue its bonds to the amount of $50,000, and invest the same, or the proceeds thereof, in the stock of the railroad company in said State, known as the Belmont and Buffalo Eailroad Company, pursuant to the provisions of chapter 907 of the Laws of the State of New York, passed May 18th, 1869.
    “ Dated Hume, February 10th, 1871.
    “ NAMES. ASSESSED VALUE. NAMES. ASSESSED VALUE.”
    “ State oe New York, Gounty of Allegany.

    “Miles Dodge, of Hume, in said county, being duly sworn, says that he is one of the petitioners named in the foregoing petition. That he is a resident and taxpayer of the town of Hume, mentioned in said petition, and that his name appears upon the last preceding assessment-roll or tax-list of said town as owning or representing property assessed upon said roll. That deponent saw a large number of names subscribed to said petition, and that deponent is informed by credible persons that they saw the names of all the other persons whose names appear upon said petition subscribed thereto, and from his knowledge and such information — and which deponent believes to be true — this deponent says that all the names which appear upon said petition are the genuine handwriting of the persons whose names appear thereon, or were written thereon by the direct authority of the said persons. And deponent further says that the names annexed to said petition are the names of a majority of the persons whose names appear upon the last preceding assessment-roll of said town of Hume as owning or representing a majority of the taxable property upon the said roll.
    “ MILES DODGE.
    “ Subscribed and sworn to before me ? this-day of February, 1871. $
    “A. B. Hopkins,
    “ Justice of the Peace.”

      H. L. Comstock and C. W. Harding, for the appellant.
    The judgment of the county judge, assuming it to have been valid when rendered, had no validity, and did not confer any authority to subscribe for any stock, or to issue any bonds in behalf of the town of Hume, after the 12th day of May, 1871, for the reasons that the act of 1871, passed on that day (chap. 925 of the Laws of 1871), repealed so much of the act of 1869 that it destroyed the force and effect of the judgment of the county judge, and took away the power of the commissioners thereby appointed. (Kay v. Goodioin, 4 Moore & Payne, 341; Surtees v. Ellison, 9 Barn. & Cress., 750; Regina y. Denton, 18 Q. B. [N. S.], 761; Rex v. Justices, etc., of London, 3 Burr, 1456; Butler v. Palmer, 1 Hill, 324; New London, etc., R. R. Co. v. Boston, etc., R. R. Co., 102 Mass., 386; Illinois, etc., Canal v. Chicago, 14 111., 334; Covington, etc., R. R. Co. v. Kenton County Court, 12 B. Mon., 144; Hampden v. Commonwealth, 19 Penn. St., 329; IIuntY. Jennings, 5 Blackf., 195; McQuilkin v. Doe, 8 id., 581; Stephens v. Doe, 8 id., 508; Pope v. Lewis, 4 Ala., 48; Lewis v. Foster, IN. H., 61; BaihjY. Mason, 4 Minn., 546; Bay City, etc., R. R. Co. v. Austin, 21 Mich., 390; Springfield v. Commissioners of Hampden, 6 Pick., 501; North Canal Street Road, 10 Watts, 351; Veats v. Danbury, 37 Conn., 412.) It is well settled that where a statute is amended by providing that a section of it shall read in a certain way, the portions of the act amended, which are not merely copied without material change, are repealed. {Ely v. Holton, 15 N. Y., 595; Moore -v. Mansert, 5 Lans., 173; S. C., on App., 49 N. Y., -332; Bay v. Gage, 36 Barb., 447; State v. Andrews, 20 Texas, 232; State v. Ingersoll, 17 Wis., 631; People v. Supervisors, 67 N. Y., 109; Steamboat Co. v. The Collector, 18 Wall., 478; Goodno v. Osh
      kosh, 31-Wis., 127; Kelsey v. Kendall, 48 Yt.-, 24.) If the later statute was intended as a substitute for the prior one, and was intended to prescribe the only rule which should govern in the case provided for, it repeals the original act as absolutely as if the appeal were expressly declared. (Gwinner v. Lehigh, etc., Railroad Co., 55 Penn. St., 136; Phiilips v. PicJcford, 9 Mans. Gr. & S., 459; United States v. Tynen, 11 Wall., 88; Morris v. Crocker, 13 How. [U. S.j, 429; Davies v. Fairbaim, 3 id., 636; Murdock v. Memphis, 20 Wall., 590; Jersey City v. Railroad Co., 20 N. J. Eq., 360; Warren v. Phillips, 36 Conn., 357; Sacramento v. Birds 15 Cal., 294; Industrial School Dist. v. Whithead, 2 Beas. Ch., 291; Farr v. Brackett, 30 Yt., 344; Pingree v. Snell, 42 Mo., 53.) The bonds could not be issued under the act of 1871, because that act had no retroactive effect, and does not apply to proceedings commenced before its enactment. (Kelsey v. Kendall 48 Yt., 24; M. Y. and O. M. R. R. Co. v. Van Horn, 57 N. Y., 473; Burton v. WicJcwire, 54 id., 226; The People v. Supervisors, 43 id., 130; Sanford v. Bennett, 24 id., 20; Dash v. Van Kleeclc, 7 Johns. K., 477; Smith v. Humphrey, 20 Mich., 398; The State v. Smith, 38 Conn., 397; The State v. Blakeman-, 52 Mo., 578; Sanford v. Barclay, 37 Cal., 11.) The bonds coidd not be issued under the act of 1869, after the act of 1871 took effect, because there was no longer any authority to issue bonds under that act, or according to its provisions, except as it was amended by the act of 1871. (The People v. Peck, 4 Lans., 530; The People v. Smith, 55 N. Y., .135; Wilson v. The Townof Caneadea, 15 Hun, 218.) The petition of the taxpayers to the county judge is void, because it does not show that the sum of $50,000, mentioned therein, does not exceed twenty per cent of the whole amount of taxable property of the town, as shown by the last preceding tax-list or assessment-roll of such town. This is a jurisdictional fact -which must be made to appear upon the face of the petition. (The People v. Spencer, 55 N. Y., 1; The People v. Smith, id., 135; The People v. Knowles, 47 id., 415; The People v. Ilulburt, 46 N. Y., 110; The People v. Peck, 4 Lans., 528.)

      Angel & Jones, for the respondent.
   Smith, J. :

This action was brought to recover the amount of several coupons or interest warrants attached to a bond for $1,000, issued by commissioners appointed by the county judge of Allegany in proceedings to bond the town of Hume in aid of the Belmont and Buffalo Railroad Company. The proceedings were instituted under chapter 907 of the Laws of 1869, by a petition filed with the county judge on the 10th of March, 1871. On the 22d of April, 1871, the county judge having given the notice and taken the proofs required by the statute, adjudged and determined that the petitioners in said petition represented a majority of the taxpayers of said town, as shown by the last preceding tax-list or assessment-roll, and also a majority of the taxable property upon said list or roll, and caused such judgment to be entered of record in the office of the clerk of said county, and thereupon appointed three commissioners for the purpose provided in the act. On the 16th of February, 1872, said commissioners subscribed for $50,000 of the stock of the said railroad company, and issued certain bonds, and on the 13th of July, 1872, they issued to the company the bond to which the coupons in suit were attached, in part payment of said -subscription. It appears from the foregoing statement that the petition was presented to the county judge and was acted upon by him, and judgment was rendered before chapter 925 of the Laws of 1871 was enacted, and while, chapter 907 of the Laws of 1869 was in full force.

It is insisted by the counsel for the appellant that the judgment of the county judge and the appointment of the commissioners ceased to bo of any validity after the passage of the act of 1871, for the reason that the latter act repealed the provisions of the act of 1869, by which alone such judgment and appointment were authorized. We are not prepared to assent to that proposition. It is undoubtedly true, as claimed by the appellant’s counsel, that where jurisdiction is conferred by a statute, the repeal of the statute arrests and terminates all proceedings under it which are not fully completed so that they can stand alone without the exercise of any further power under the repealed statute, unless there is a saving clause in the repealing statute exempting such pending proceedings from its operation. (Butler v. Palmer, 1 Hill, 324, and cases there cited by Cowen, J.) It makes no difference in this respect whether the repeal is express or by implication ; and although a repeal by implication is not favored, yet it is well settled that where two statutes are clearly repugnant to each other, the one last enacted operates as a repeal of the former. It is also true that the act of 1871 which, in terms, amended the act of 1869, made numerous changes in the law, and undoubtedly the provisions of the amended sections of the earlier act, which are omitted in the later act, are to be regarded as repealed. (Moore v. Mausert, 49 N. Y., 332.)

But it by no means follows that the partial repeal of the act of 1869, thus effected, annulled the judgment and appointment in question. Had the repeal been absolute of the entire act, doubtless no further proceedings could have been had under the judgment and appointment, after the repeal took effect. But the repeal affected merely certain details and modal provisions of the law. It left in full force and continued the essential policy of the act of 1869, which was, to provide a mode in which the credit of municipal corporations might be used in aid of the construction of railroads, and the same general mode of proceeding was retained, although modified in its details, to wit: The presentation of a petition of taxpayers to the county judge, an adjudication by that officer that the petitions represented a majority of the taxpayers and of the taxable property of the town, according to the provisions of the act, and an appointment by him of commissioners. By the judgment and appointment, the proceedings before the county judge, in the present case, were fully completed and closed, before the act of 1871 was passed. The judgment and the record thereof had the same force and effect as other judgments and records in courts of record in this State. (Act of 1869, § 2.) The question is one of legislative intent. There is nothing in the act of 1871 to indicate that the Legislature intended to annul valid and complete judgments under the act of 1869, and regular and valid appointments of commissioners made thereunder, even although the commissioners so appointed had made no contract and issued no bonds. The true construction we apprehend is, that from the time the act of 1871 was passed, it became the law as to all proceedings thereafter, whether then pending or commenced subsequently, while all that had been done before that time was supported by the first act and must be judged by it. (People v. Supervisors of Montgomery Co., 67 N. Y., 109, per AlleN, J., id. 117; Ely v. Holton, 15 id., 595; Moore v. Mausert [supra], there cited; The People ex rel. Hoag v. Peck, 4 Lans., 528.)

The counsel for the appellant lays stress upon the fact that no vested rights had accrued to third persons when the act of 1871 took effect, and he cites the cases of Aspinwall v. Commissioners of Daviess County (22 How. [U. S.], 364); In the Matter of the Buffalo and Jamestown R. R. Co. (5 Hun, 485); and Falconer v. The same Co. (7 id., 499); S. C., affd. (69 N. Y., 491). Those were cases in which, pending the bonding proceedings, a now constitutional provision intervened, absolutely prohibiting any municipal corporation from loaning its money or credit to any corporation, or from becoming the owner of any stock or bonds of a corporation. The courts hold in those cases, that by force of such provision, all action on the part of any municipal corporation to issue its bonds in aid of a railroad not then completed, at once became nugatory, unless where, by operation of law, or by some valid agreement, there had ■ been, prior to that time, created a right to have such action perfected by the issuing of bonds. Those decisions are not applicable to the present case, for the reason already suggested, that here the repeal related to certain details only, and the policy of town bonding was retained in force.

As no question was made on the argument but that the action of the commissioners in respect to contracting with the railroad company and issuing the bonds of the town, subsequently to the passage of the act of 1871, was in accordance with the provisions of that act, wo think their action in those particulars was valid, provided the proceedings before the county judge were valid under the act of 1869.

But there are other positions taken by the appellants’ counsel, which seem technicid at first, but which will be seen on examination to bo quite formidable.

It is contended by the appellants’ counsel that the petition presented to the county judge was void, because it did not show that tbe sum of $50,000 mentioned therein as the amount to which the petitioners desired the town should issue its bonds, did not exceed •twenty per cent of the whole amount of the taxable property of the town, as shown by the last preceding tax-list or assessment-roll of such town. The contention turns upon the construction of section one of the act of 1869. So much of the section as is material to the question is in the following words: “ Whenever a majority of the taxpayers of any municipal corporation in this State * * * shall make application to the county judge * * # by petition verified by one of the petitioners setting forth that they are such a majority of taxpayers * * * and that they desire that such municipal corporation shall create and issue its bonds to an amount named in such petition (but not to exceed twenty per cent of'the whole amount of taxable property as shown by said tax-list and assessment-roll), and invest the same or the proceeds thereof in the stock or bonds (as said petition may direct) of such railroad company in this State as may be named in said petition, it shall be the duty of said county judge,” etc. The petition by which the proceedings to bond the town of Hume were initiated set forth that the petitioners desired that the town should issue its bonds to the amount of $50,000, but it did not set forth that such amount did not exceed twenty per cent of the whole amount of the taxable property, etc. By reason of this omission, it is contended the petition was fatally defective and gave no jurisdiction to the judge. We have not been referred to any reported case in which the question has been passed upon. In The People ex rel. Haines v. Smith (3 Lans., 291) the same omission occurred, but the point does not appear to have been raised, and the proceedings were reversed on other grounds. In The People ex rel. Delafield v. Hughitt (5 Lans., 90), the petition was regular in that respect. But there are other cases involving questions that appear to be analogous. In The People ex rel. Rogers v. Spencer (55 N. Y., 1), the Court of Appeals held that the omission to set forth in the petition that the railroad company named in the petition, as the company in whose stock the petitioners desired the bonds of the town or their proceeds to be invested, was a railroad company in this State, rendered the petition fatally defective. The decision rested upon the familiar principle, that a special limited statutory power can only be exercised under the limitations and circumstances prescribed by the statute.

In The People ex rel. Haines v. Smith (45 N. Y., 772), it was held that the authority conferred by the act must be exercised in' strict conformity with the letter and spirit of the statute ; in The People ex rel. Freeman v. Hulburt (46 id., 110), that every step required by the statute must be shown to have been taken in strict conformity therewith. Is the omission pointed out, one of matter which the act of 1869 required to be set forth in the petition ? We are of the opinion that it is. The matter is found in the clause of the section which specifies the particulars that are to be set forth in the petition. It is as plainly required to be set forth, and by the same words, as is the statement that the railroad company to be named in the petition, is “in this State.” The circumstance that it is in the parenthesis does not affect the question. The parenthesis is no indication that the matter embraced in it need not be stated in the petition. It tends to perspicuity of expression, and it was probably used for that purpose alone. It is enough that, by a literal reading, the matter in question is required by the Legislature to be stated in the petition. The courts cannot declare it immaterial, nor say that its omission does not affect the proceedings. (Merritt v. Portchester, 71 N. Y., 309.)

The fact that the requirement was omitted in the act of 1871 indicates that, while the Legislature did not think it advisable to retain it, they thought a compliance with it was necessary while it was in force; otherwise, the omission was unnecessary. The omission was not intended to permit the issuing of bonds in excess of twenty per cent of the taxable property of the town. That is apparent from the fact that the prohibition upon the commissioners to that effect, contained in section four of the act of 1869, was not repealed by the act of 1871. Applying the strict rules of construction adopted by the court of last resort in like cases, we are brought to the conclusion, that the act of 1869 not only prohibited the commissioners from issuing bonds in excess of that limit, but it gave no jurisdiction to the county judge to entertain proceedings, except upon a petition stating that the amount of bonds which the petitioners desired to have issued did not exceed that limit. It follows that the statement in question was necessary to the validity of the petition, and that the omission of it was a fatal defect.

We are also inclined to agree with the appellant’s counsel in his position, that the petition was not verified as the act required. The statute requires that the petition shall be verified by one of the petitioners. The form and manner of the verification are not prescribed. The fair construction is that the statute intends the usual mode of verification, to wit, by affidavit subjoined to the petition, and it is obvious that the verification must extend to every material fact alleged in the petition. It is hardly to bo supposed, however, that all the'facts alleged would bo within the personal knowledge of any one individual, and consequently an affidavit made by one of the petitioners, to the effect that the petition is true, according to his'best knowledge, information and belief, would probably suffice. But that, at least, is essential. The verification in this case did not comply with the statute, as above construed. The affidavit purporting to verify the petition was made by Miles Dodge, one of the petitioners. It did not profess to state that the entire petition was true, on information or belief, or otherwise. It was but a partial verification. It was confined to particular averments only. The fact alleged in the petition, and essential to the jurisdiction of the judge, that the railroad company in whose stock the petitioners desired that the town should invest was a railroad company in this State, was not verified at all. A verification of every material part of the petition was essential to the jurisdiction of the judge.

In the case of Merritt v. The Village of Portchester (supra), it appeared that commissioners of estimate and assessment appointed under the charter of the village to apportion and assess the expense of a local improvement, instead of taking the oath “ faithfully and fully to discharge the duties,” required by the charter to be taken before they were authorized to act, each took an oath that he would perform the duties “ to the best of his ability.” The action was brought to restrain the collection of the assessment. Held, by the Court of Appeals, reversing the court below, that the failure to take the prescribed oath rendered the proceedings illegal. The case is not strictly analogous to this in its facts, but the rule of construction upon which it was decided is fully applicable here, to wit, that the statute must be strictly construed, and any departure in substance from the formula prescribed by the statute vitiates proceedings under it. If these views are correct, the proceedings were void for want of jurisdiction, and the bonds were issued without authority.

The defects above pointed out being patent upon the record of the proceedings, the bonds ivere void in the hands of the railroad company to whom they were issued. (Starin v. The Town of Genoa, 23 N. Y., 439; The Town of Duanesburgh v. Jenkins, 40 Barb., 574.) And the plaintiff, as receiver, has no better title than that of the company which he represents.

The judgment in favor of the plaintiff should be reversed, and as no state of facts can be shown entitling the plaintiff to recover, judgment should be ordered for the defendant.

Talcott, P. J., and HakdiN, J., concurred.

Judgment for plaintiff reversed, and judgment ordered for defendant.


author: Smith, J.:

text:
    MARIA McBRATNEY, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY, Appellant. (Two cases, and seventeen other plaintiffs against the same defendant.) CHARLES A. RICHARDSON, Respondent, v. THE SAME, Appellant. (Six other plaintiffs against the same defendant.) JAMES SULLIVAN, Respondent, v. THE SAME, Appellant. (Four other plaintiffs against the same defendant.)

      Idem of attorneys — when not protected try the court.

    A number of actions against a railroad company were gouen up by one McCarthy, the attorney for the plaintiffs, and one Bonnell, upon an agreement to divide between them the costs, and a considerable part of the penalty to be recovered in such actions, the several plaintiffs consenting thereto, and conveying to McCarthy their rights to such portions of the penalties. After issue joined the defendant’s attorney, for the purpose of preventing McCarthy from recovering such costs and portions of the penalties, procured from each of the plaintiffs an instrument, under seal, releasing the defendant from the cause of action and the costs; and agreeing that the actions be discontinued, and that orders to that effect might be entered on filing the stipulation. Defendant’s attorney accordingly entered orders to that effect, without notice to plaintiff’s attorney.
    On a motion by the latter to set aside such orders as irregularly entered, and as entered with intent to cheat and defraud him, held, that as the causes of action were not assignable, he acquired no interest in the subject of the actions by his agreement with the plaintiffs, and that the court would not set aside the orders of discontinuance to protect his right to the costs.
    Appeals from orders made at Special Term vacating orders of discontinuance entered in certain of the above entitled actions, and also appeals from orders made by the county judge of Oswego county, setting aside certain orders of discontinuance entered in other of the said actions.
    The above mentioned actions were brought to recover penalties under the act, entitled “ an act to prevent extortion by railroad companies,” passed 27th March, 1857 (chap. 1851. They were all commenced by the same attorney. The defendant appeared in each action and put in an answer. No action has been tried and no judgment has been entered in either of them. After issue was joined the plaintiff in each case executed an instrument in writing, under seal, releasing the defendant, for a valuable consideration, from the cause of action and the costs, agreeing that the actions might be discontinued, and stipulating that an order to that effect might be entered on filing the stipulation. The defendant's attorneys filed the stipulation in the clerk’s office, and entered an order of discontinuance in each case without notice to the plaintiffs’ attorney, and without notice to the court.
    Thereupon, the plaintiffs’ attorney moved, upon notice, that the order of discontinuance be vacated and set aside. The grounds of the two motions made at Special Term were, that the orders were irregular, and also that the settlement in each case was collusive and made with the design of preventing the plaintiffs’ attorney from obtaining his costs. The decision of the Special Term was based upon the latter ground only. The motion before the county judge was made upon the sole ground that the orders were irregular. Upon the motions at Special Term the plaintiff’s attorney alleged in his affidavit, that the stipulations and orders were procured and intended solely for the purpose of attempting to prevent him from recovering his costs ; that the defendant and its attorneys knew that the plaintiffs were irresponsible, and that the deponent’s costs were unpaid, and that before the stipulations were made lie notified the defendant not to settle or compromise said actions without payment of his costs. In opposition to the motions at Special Term an affidavit was read, made by one of the defendant’s attorneys, stating that said suits were a part of many actions gotten up and incited by the plaintiff’s attorney, A. McCarthy, Jr., and one Bonnell, on speculation and on agreement to divide the costs and penalties (if any should be recovered) with one another, and that deponent then had in his possession an agreement in writing executed by the plaintiffs' attorney, whereby he agreed that Bonnell was entitled to and should receive, when paid or collected of the defendant, tln-ee-fourths of McCarthy’s fees or costs, in ten suits therein named against the defendant for penalties (among which are three of the suits embraced in the Special Term orders above mentioned) up to forty dollars, and one-half of all above that sum, and in the event that the suits were settled before his costs amounted to forty dollars, McCarthy was to'have ton dollars in each case and Bonnell the remainder. The said affidavit also stated that the deponent then had in his possession agreements in writing, executed by all of the plaintiffs in the ten suits above mentioned, agreeing that McCarthy should have twenty-five dollars of the recovery of fifty dollars penalty (if a recovery was had), which said shares were subsequently assigned by McCarthy to Bonnell; that in other cases it was agreed that Bonnell was to have one-half of McCarthy’s fees and costs, and one-half of the .penalties ; that in some cases, McCarthy by agreement with the plaintiffs, was to have one-half of the penalty recovered and to pay it over to Bonnell, he, McCarthy, retaining his costs; and that in other cases, McCarthy was to have from the plaintiff one-half of the penalty, and to divide that half with Bonnell. The affidavit further alleged that the defendant’s attorney had no knowledge or intimation that McCarthy claimed to have notified defendant not to settle without payment of his costs until they read McCarthy’s affidavit; that the stipulations were entered into by defendant’s attorneys in good faith, and in most instances upon the application and request of the plaintiff, and for a valuable consideration paid for the purpose of effecting a settlement.

      JS. B. Wynn, for the appellant.

      A. McCarthy, Jr., for the respondents.
   Smith, J.:

It is apparent from the appeal papers, that the motions to set aside the stipulations and orders of discontinuance in these several actions were made exclusively in the interest of the plaintiffs’ attorney. The decision of the Special Term was put upon the sole ground, that the orders and stipulations vacated thereby, deprived the attorney of his costs. The irregularities specified in the motion before the county judge were prejudicial to no one but the attorney, as no question was made in that motion, but that the plaintiffs had settled the suits for a valuable consideration and in good faith, as between themselves and the defendant, and the orders of discontinuance were in precise accordance with the terms of the settlement. The important question, therefore, is whether the attorney has such an interest in the subject-matter of the litigation, by way of lien for costs or otherwise, as that he may challenge the stipulations and orders of discontinuance for irregularity or on the ground that they are collusive and fraudulent as against himself.

Since the adoption of section 303 of the Code of Procedure, which section is yet in force, the only measure of the compensation of an attorney for his services in an action, is the agreement, express or implied, between him and his client. (Rooney v. Second Avenue Railroad Co., 18 N. Y., 368.) If there is an express agreement as to the amount of compensation, which is in all respects lawful and not oppressive towards the client, it controls. In the absence of an express agreement, probably the sum recovered by the party as an indemnity for his expenses would be the measure of compensation allowed to the attorney. (Per Harris, J., in the case of Rooney, supra.) But whatever the measure of compensation,- the attorney has no lien until judgment is recovered, and his lien then is upon the whole judgment, not more upon one part than another. (Id.)

There are many cases in the books where the courts have intervened at the instance of the attorney, even before judgment, to set aside a collusive settlement intended to cheat him out of his costs. But in the recent case of Coughlin v. The N. Y. C. and H. R. R. R. Co. (71 N. Y., 443), it was said that the practice in those cases was not based upon the principle of a lien ; but it was an exercise of the power of the court to protect- its officers, adopted at a time when attorneys’ fees were fixed and definite sums easily ascertained by taxation. (Per Earl, J., p. 448.) And it appearing in that case that, by agreement between the plaintiff and his attorney at the commencement of the action, the latter was to receive a share of any recovery therein for his services, it was held that the practice above referred to should not be extended to that case, to enable the attorney to reap the benefit of his extraordinary agreement. It was also held, that as the cause of action was one which, in its nature was not assignable, the attorney, by his agreement before judgment, acquired no interest therein. These conclusions were sanctioned by the case of Pulver v. Harris (62 Barb., 500; S. C. affirmed, 52 N. Y., 73). They seem to be applicable to the present case and to require a reversal of the orders appealed from.

According to the statements contained in the opposing affidavits, the greater number of the actions embraced in these appeals were incited and gotten up by the attorney McCarthy, and one Bonnell, and all of them were taken by the attorney and Bonnell as a speculation upon an agreement to divide between them the costs and a considerable portion of each penalty when recovered. The agreement between the attorney and Bonnell evidently contemplated the assent of the several plaintiffs to the arrangement, and it appears, from the opposing affidavit, that in several cases the plaintiffs agreed that the attorney should have one-half of the penalty recovered, and that such half was subsequently assigned by the attorney to Bonnell. The papers used upon the motion justify the conclusion that all the actions included in these appeals, with several others, were incited by McCarthy and Bonnell for their mutual benefit, and that, by agreement between them, they were to divide between themselves the costs and a portion of each penalty when recovered, the several plaintiffs consenting to transfer such portion of the penalty for that purpose.

That the cause of action was not assignable can hardly be questioned. The claim for the penalty is personal to the party paying the excessive fare. The right to sue for it is given to him by the statute and to no one else. (Laws 1857, chap. 185.) The question is now upon the right of action to recover the penalty, and not to recover the money paid for excessive fare. The excess exacted, if not voluntarily paid, could be recovered without the statute. In Fisher v. The N. Y. C. and H. R. R. R. Co. (46 N. Y., 657) it Avas said by Gkovee, J., speaking for the whole court, that “ the statute was passed giving the fifty dollars to the party paying the money, not as a satisfaction for the injury received, for that was otherwise compensated ; but to enable him to prosecute in a court of record, where he could recover the compensation of his attorney as costs, and to compensate for any further expense that might be incurred in the suit, and to compel the payment of such a sum by the defendant as would effectually stop the practice.” The fifty dollars is a forfeiture — a penalty. It rests with the party to whom the penalty is given to say whether it shall be sued for or not. He cannot transfer it to another to sue, unless the statute so provides. In general, a cause of action that does not survive the death of the party is not assignable. In Little v. Conant (2 Pick., 527) it was held that an action of debt for a penalty for cutting and carrying away the plaintiff’s trees, contrary to statute, abates by the death of the plaintiff. In O'Donnell v. Sybert (13 Serg. & R., 54), where the question was whether a claim for a malicious and excessive distress survived, DuNCAN, J., instanced the case of an action on a penal statute as one which did not survive, and his remarles in that regard are referred to approvingly by Cowen, J., in The People v. Tioga C. P. (19 Wend., 77).

But it is unnecessary to pursue the subject further ; the fact that the statute which creates the penalty gives the right to sue for it to the party paying the excessive fare, and to no one else, seems to lead necessarily to the conclusion that the cause of action cannot be assigned.

On both grounds the present case is within the rule laid down in the cases of Pulver and Coughlin. In each of those cases the fact was found that the settlement was made with intent to defraud the attorney ; but as the court held that he had no interest to be affected, the question of intent was immaterial. So here the attorney is not m a position to question the fairness of the settlement. Neither can he inquire into the regularity of the orders of discontinuance on his own account. As against his clients, the orders are in pursuance of their stipulations, and justice will be promoted by allowing them to stand, even if they were irregularly entered. Whether they were irregular or not is an immaterial question, if the views above expressed are correct, and as it is unnecessary to decide it, we express no opinion upon it.

There are also other questions in the case which may be stated but need not be discussed. As has been said, the testimony warrants the conclusion that the actions were gotten up by McCarthy and Bonncll upon an agreement to divide between them tbe costs and a considerable portion of each penalty, the plaintiffs consenting thereto. Now, assuming that the attorney had a lien, it is questionable whether his assignment to Bonnell of a portion of the costs, i. e., of his claim for compensation for services, was not an extinguishment or destruction of the lien, at least pro tanto. It is also questionable, to say the least, whether the agreement between the plaintiffs, Bonnell and McCarthy, to divide the recoveries between them had not the effect to release what might be recovered, from the operation of the attorney's lien. But it is unnecessary to decide those questions, as we are of the opinion that, upon the authority of the cases above referred to, the orders appealed from should be reversed.

Each of the orders appealed from reversed, without costs to either side.

Talcott, P. J.',: and Hardin, J., concurred.

Orders in each case reversed, without costs to either party.


text:
    DORCAS BAINBRIDGE, Respondent, v. HENRY E. RICHMOND, Sheriff, etc., Appellant.

      Chattel mortgage— when, its terms may be varied by parol evidence.

    When a chattel mortgage appears by its terms to have been given to a second indorser of two notes to secure their payment, it may be shown by parol that it was intended as a security for all the indorsers upon the notes, and upon such proof being made it can be enforced by the first indorser.
    Appeal from an order made at the Monroe Circuit denying defendant’s motion for a new trial, made upon the judge’s minutes.
    The motion was made upon exceptions, and upon the ground that the verdict was against the weight of evidence.
    The action was brought against the defendant, as sheriff of Monroe county, for levying upon and selling the contents of a retail liquor and cigar store, owned and carried on by James P. Bainbridge, the plaintiff's son. The levy was made by virtue of one or more attachments against the property of James. The plaintiff claimed the property as mortgagee in possession, by virtue of two chattel mortgages executed by her son, one for $1,000 given to her, and the other for $2,000, given to Samuel D. Purdy, a brother-in-law of the mortgagor, and by him assigned to the plaintiff. It appeared by the terms of the latter mortgage that it was given to secure the payment of two notes, one of $1,500, and one of $500, due in three months from the date of the mortgage, at the Wyoming County National Bank, at Warsaw, which Purdy thereby agreed to pay. At the trial it appeared that said notes were made by James P. Bainbridge, and indorsed by the plaintiff as first indorser, and by Purdy as second indorser. Parol evidence was given against the defendant’s objection, which, as the plaintiff claimed, tended to show that when the mortgage was given to Purdy it was intended as a security for all the indorsers upon the notes, and that they all held it as security, and that it was assigned by Purdy to the plaintiff in consideration of her paying the notes at the bank. James, who was called by the plaintiff as a witness, testified that he canned on the business as usual from the time of the execution of the mortgage, from the twenty-ninth of January to the twenty-third of February, the date of his mother’s taking possession. The plaintiff testified that when the mortgage was executed she expected that James would go on in the business, and that he never sent her any of the proceeds. The levy was made very soon after the plaintiff took possession. The jury rendered a verdict in favor of the plaintiff for $1,620.67.

      Nathaniel Foote, for the appellant.

      J. A. /Stull, for the respondent.
   Smith, J.:

The appellant’s counsel takes the position that the mortgage to Purdy was a mere indemnity to him, against his liability as second indorser on the notes, and he, not having been compelled to pay, had no interest in the mortgage which he could assign ; and that as the plaintiff was the first indorser, she and Purdy were not co-sureties, and she had no right to be subrogated to the mortgage on paying the notes. The judge charged the jury in substance, that if the mortgage was intended as security for all the indorsers the plaintiff could hold it as security for her indorsement. The instruction was correct, and the parol evidence introduced on that subject warranted the jury in finding that such was the intent of the parties to the mortgage and the notes. The appellant’s counsel insists that parol evidence was not admissible to show such purpose ; that the effect of it was to contradict, or at least to vary the mortgage. But it has been held repeatedly that parol evidence, to show the purpose and intent for which a security was executed, is not regarded as contradicting or varying its terms or legal effect. (Truscott v. King, 2 Seld., 147, 161; Chester v. The Bank of Kingston, 16 N. Y., 336, 343; Agawam Bank v. Strever, 18 id., 502; Hutchins v. Hebbard, 34 id., 24.) So it was competent to show by parol in this case that Purdy was to hold the mortgage as trustee for the other indorsors, as well as in his own right, the fact was not inconsistent with the terms of the instrument, (Artcher v. McDuffie, 5 Barb., 147; Hall v. Crouse, 13 Hun, 557, 561; Hubbell v. Blakeslee, 71 N. Y., 63, 69.) The most that the defendant can claim is that as the mortgage did not express the true intent and purpose of the parties, it was liable to suspicion, and the variance was a circumstance to be considered in determining the question of fraud. (Per Marshall, C. J., in Shirras v. Caig, 7 Cranch, 34, cited by Jewett, J., in Truscott v. King, supra; McKinster v. Babcock, 26 N. Y., 378, 382.)

The point is made that the parol evidence did not show that the mortgage was intended to secure plaintiff as well as Purdy. Without repeating the evidence it is enough to say, that taken in connection with the terms of the mortgage, it fairly justified the submission to the jury of the question above stated, as to the purpose for which the mortgage was given. We think, therefore, that the plaintiff’s claim rested upon both mortgages, and if they were free from fraud she was entitled to recover. If the mortgage of the entire stock of goods in a retail store is accompanied with an agreement that the mortgagor may remain in possession and sell the goods, and apply the proceeds to his own use, the mortgage is void in law, whether the agreement be contained in it or not. (Wood v. Lowry, 17 Wend., 492; Edgell v. Hart, 5 Seld., 213; Russell v. Winne, 37 N. Y., 591; Dutcher v. Swartwood, 15 Hun, 31; Southard v. Pinckney, 5 Abb. [N. C.], 184.) There was bo direct proof of such an agreement in tins case but there was evidence from which it might have been inferred. It was, therefore, a question for the jury, and the court for that reason properly denied the motion for a nonsuit, and the request to direct a verdict for the defendant on that ground. The judge charged the jury that if they should find that when the mortgages were made it was agreed or understood, expressly or impliedly between the plaintiff, her son, and Purdy, that James was to be at liberty to sell the liquor, and deal with it at his pleasure, as if the mortgage had not been given, such agreement, of itself, would be evidence of fraud, which the jury might take into account in deciding whether the transaction was fraudulent. To this charge no exception was taken, and there was no request that the judge charge that such agreement would make the mortgage void in law. The jury having rendered a general verdict in favor of the plaintiff, it is impossible to say whether they found that there wras no such agreement, or whether they found that, notwithstanding such agreement, the mortgages were executed in good faith, and with a lawful intent. In Dutcher v. Swartwood (supra), relied upon by the appellant’s counsel, the fact of the vitiating agreement was taken as established, at the trial, without dispute, and in that respect the case differs materially from this. In this view of the case the question whether the mortgagee by taking possession of the property under the mortgage acquired a valid title as against the creditors of the mortgagor, which was the turning point in the case of Dutcher, does not arise.

These considerations dispose also of the position taken for the appellant, that when the plaintiff took possession she made a like agreement with her son, which vitiated the mortgage. That point also involves a question of fact, and the appellant is not in a position to claim that there was any error, either of commission or omission in respect to submitting it to the jury.

The question to which most of the evidence in the case was directed was, whether the mortgages were executed with a fraudulent intent in fact. We are not prepared to say, that upon that question the verdict is, as the appellant’s counsel contends, against the weight of evidence.

At the trial the defendant’s counsel offered to show the amount of the proceeds of the business, from the date of the mortgages until the plaintiff took possession. It is evident, from what immediately precedes the offer .in the printed case, that the offer was to make the proof by having the witness, James P. Bainbridge, read from certain account books produced by him, and which we may assume were the books in which he had testified the accounts of his business were kept. It did not appear by whom or when the entries in the books were made, and that being the state of the proof they were not competent evidence against the plaintiff for any purpose.

The order should be affirmed.

Talcott, P. J., and Hardin, J., concurred.

Order denying new trial affirmed.


author: SMITH, J.:

text:
    LEWIS TERRY, as Administrator, etc., of JENNIE A. TERRY, Deceased, Plaintiff, v. HUGH J. JEWETT, as Receiver of the Erie Railway Company, Defendant.

      Contributory negligence — when a question for the jury — damages for negligent killing— the property left by the deceased, to the plaintiff is not to be considered in determining them.

    A station on defendant’s road is situated south of the trades, two in number, running- east and west, and just east of a highway crossing them. While plaintiff was waiting there to take the passenger train going west, a freight train coming from that direction, and ringing its hell, ran by the station on the south track,, at the rate of eight or ten miles an hour. Just before it arrived at the station, plaintiff’s intestate started to cross the track to reach the passenger train, which had arrived on the north track, had slowed down, and then started up to reach a milk platform. As -she crossed the south track she was struck by the engine of the freight train and killed.

      Seld, that the foregoing facts established negligence on the part of the railroad company.
    That the question of plaintiff1’s contributory negligence was properly left to the jury, and that a verdict in her favor would not be set aside.
    The question whether the plaintiff, under the circumstances of this case, was bound before crossing the track to look in both directions, considered.

      The deceased was the daughter of the plaintiff and unmarried. She was about thirty-one years old and had accumulated some property. The defendant requested the court to chai-ge that in estimating damages the jury might consider the fact that the plaintiff, as next of kin, would he entitled to the property left hy the deceased.

      Held, that the request was properly refused.
    MotioN by defendant for a now trial on exceptions taken at the Erie Circuit, and ordered to be beard at the General Term in the first instance, after a verdict in favor of the plaintiff.
    The action was brought to recover damages sustained by reason of the death of the plaintiff’s intestate, caused, as alleged, by the negligence of the defendant’s servants. The injury occurred at defendant’s station at Darien, Genesee county, about noon of the 18th of April, 1876, where the intestate was waiting to take a passenger train for Buffalo.
    There are two tracks upon defendant’s road at that point, running in an easterly and westerly direction. The station is on the south side of the railroad. Just west of the station is a public highway, crossing the railroad. A freight train was coming from the west, on the south track, and, according to the uncontradicted testimony, its bell was ringing as it approached the highway. At the same time, the passenger train which the intestate was waiting for, then due, approached the station from the east, on the north track. The passenger train, after slacking its speed, as if to stop at the passenger station, started up, to reach the milk platform, a short distance further to the west. At that instant, and while the passenger train was yet moving slowly, the intestate, apparently not seeing or hearing the freight train, started from the station to go to the passenger train. She walked rapidly, in a northeasterly direction, and just as she stepped across the first rail of the south track, she was struck by the engine of the freight train, which was running, according to one of the plaintiff’s witnesses, at the rate of eight or ten miles an hour, and she received injuries of which she died the next day.
    The defendant’s counsel moved for a nonsuit, upon the ground that no negligence was shown on the part of the defendant, and that it appeared that the negligence of the deceased contributed to the injury. The motion was denied and the defendant’s counsel excepted.

      Tbe defendant’s counsel requested the court to charge that it was the duty of the intestate to know that a train might be passing, and to act accordingly, but the court refused, and an exception was taken. The court did charge, however, that the deceased, in going from the station to the passenger train, for the purpose of taking passage upon it, was required to use that care, caution and prudence which ordinary people could be expected to use under like circumstances, so far as related to looking and listening for the train.
    The defendant’s counsel then requested the court to charge that it was the duty of the deceased, as she approached the track, to look and listen for the purpose of ascertaining whether a train was approaching, and if she failed to do so, the plaintiff could not recover, but the court refused to charge other than as above stated, and the defendant’s counsel excepted.
    The jury rendered a verdict in favor of the plaintiff for $4,000.

      Wni. II. Gurney and A. G. Rice, for the plaintiff.
    The deceased had purchased a ticket at the company’s depot, and was entitled to the protection of a passenger. She was entitled to safe conduct from the ticket office to the train. (Phillips v. Sar. R. R. Go., 57 Barb., 644; Quriiss v. Detroit and Mil. R. R. Go., 27 Wis., 158; Gonzales v. M Y. and II. R., 39 How., 407.) Courts have gone a long way to hold railroad companies liable for injuries at stations. (Hulbert v. The FT. Y. G. R. R. Go., 40 N. Y., 145; Lacey’s Dig., 409-411; Keating v. N. Y. G. and II. R. R. R. Go., 49 N. Y., 673; Filer v. FT. Y. G. R. It., id., 47.) The main question in this case is : Was the plaintiff’s intestate guilty of such contributory negligence that she cannot recover in this action ? There was a conflict of evidence upon that question. We claim that the defendant’s negligence consisted in running the freight train between the passenger depot and the passenger train at from eight to twelve miles per hour when the passengers were about to take passage; that the deceased had the right to suppose that, when the passenger train arrived, it was safe to go to the train and get on board. She had a right to suppose that she could do this in safety. She was not required to look for swiftly moving trains between the passenger train and the ticket office. There is a manifest difference between the care and caution required of the deceased in crossing this track from the ticket office to reach the train and that required at places where the street or road crosses the railroad track. Every case that requires the foot passenger to stop and listen before crossing a railroad track relates to a street or road crossing. (Beisiegel v. W. Y. G. and H. R. R. R. Go., 34 N. Y., 622; Ominger v. JST. Y. O. and H. R. R. R., 4 Hun. 159, and a large number of cases cited in Lacey’s Digest, p. 451, § 43; 2 Brightley’s Digest, p. 2760, § 179.) No case can be found that requires a passenger taking the cars at a depot to look and listen for an approaching train. She had the right to suppose and act on the presumption that the defendant would itself act in accordance with the rights of both parties, and if she was injured while acting under this presumption, by the negligent act of the defendant, she was not guilty of contributory negligence. (JSTewson v. W. Y. O. R. R. Go., 29 N. Y., 383; Jetter v. W. Y. and llar. R. R. Go., 2 Keyes, 154; Griff en v. N. Y G. R. R. Go., 40 N. Y., 34; Twomly v. The Gent. Parle, Worth and Past R. R. Go., 69 id., 158; Fppendorf v. B. G. and W. R. R. Go., id., 195, and cases cited on page 196; Filer v. W. Y. O. R. R. Go., 68 id., 124.) Parties waiting at a station to take the cars already stand in the relation of passengers, and are entitled to protection in that capacity. (Edwards on Bailment, § 698; Gordon v. The Grand St. and W. R. R. Go., 40 Barb., 546; Treux v. The Erie R. Go., 4 Lans., 198; Packet Go. v. Glough. 20 Wallace, 528.1

      P. O. Sprague, for the defendant.
   SMITH, J.:

The testimony warranted the jury in finding, and we are to assume that they did find, that the engineer of the freight train not only knew that the passenger train was drawing up to the station, but that he deliberately attempted to pass the station before the passenger train should reach it and stop, and for that purpose he drove his train past the station upon the track between it and the passenger train, at a rate of speed not less than eight miles an hour. At the time of the arrival of the passenger train, persons wbo were waiting at the station for the purpose of talcing passage upon the train were there by the invitation of the defendant, express or implied, and it was the duty of the defendant to furnish them a convenient and safe way of access from the station to the train, and especially to take care that the usual way was not made dangerous or insecure by any act or omission of its own. As there was no way from the station to the passenger train, except across the south track, it was an act highly dangerous to passengers having occasion to enter or leave the passenger train at that station, to run the freight train past the station at the speed with which it was run, at the instant when the passenger train was about to stop there.

In the circumstances, the act, if not culpably willful, was grossly negligent; there was testimony tending to show that a freight train had never before passed that station when a passenger train was standing there, and it does not appear that anything was done at the station, by way of giving notice to persons waiting there that a freight train was then expected.

It is no answer to the charge of negligence to say that the bell upon the freight train was rung as required by statute. The statute requires the bell to be rung, or the whistle to be sounded, for a certain distance before coming to a crossing, as a notice to persons traveling in the highway at such crossing, and not as a warning to persons situated, as was the deceased in this case. To such, the mere fact of ringing the bell or sounding the whistle is not notice, nor has it the legal effect of notice, unless it is actually heard by them, or might have been heard (but for want of due care and attention on their part) in season to enable them, by reasonable diligence, to avoid the coming train. We are, therefore, prepared to hold that, so far as the question of the defendant’s negligence is concerned, the verdict is well warranted and the case is free from error.

This brings us to the question of contributory negligence. The question, as presented by this case, is novel and not free from difficulty. That the intestate is to be regarded as a passenger cannot be doubted. The question whether she had bought a ticket was properly submitted to the jury, and was determined in the plaintiff’s favor. Perhaps she might have been regarded as a passenger even if she had not bought a ticket in advance. If she had taken passage on the train, she would have been liable to the defendant for the fare, whether she had a ticket or not. So that, even if she had no ticket when she left the station, yet if she intended in good faith to take passage upon the train, and was actually going to the train for that purpose, no reason is perqpived why she should not be regarded as a passenger, unless the defendant had made and published a regulation that passengers should purchase tickets before entering the cars, of which there is no evidence. But although she was a passenger, having a right to cross the defendant’s track in order to go from the station to the train, she could only do so at a proper time and with reasonable care for her own safety. There is evidence in the case that at the time when the deceased left the station the passenger train was in motion ; it had not stopped for passengers to get on. If she left the station before the train stopped, and while it was moving at such a rate of speed that it would have been dangerous and negligent for her to attempt to get upon it at the time when she would have reached it if she had not been interrupted, she acted prematurely, and her going upon the track at that point of time was not at the implied invitation of the defendant. Even if she supposed that the train was starting 'on its way, and that it would not stop to take up passengers, she would not have been justified in attempting to get upon the train while it was going at a rate of speed making it dangerous for her to do so, and if she had been injured in the attempt, it Avould have been the result of her own negligence. But the injury to the intestate was not the result of an attempt to get on a train in motion, and probably the question whether her action was premature, must turn upon the question whether, viewing the train from her standpoint, she had reason to suppose, and did suppose, that it was about leaving the station, and that by hastening to it she could reach it and get upon it safely. I suppose it is possible that a railroad train may be moving at such a moderate rate of speed as that an attempt to get upon it or leave it, while so moving, would not, under all circumstances, constitute negligence as matter of law. If these views are correct, it was for the jury to say, under proper instructions from the court, whether the movement of the intestate towards the passenger train was premature.

There is nothing in the case to show but that the question was properly submitted to the jury, and we are to assume from the verdict that it was decided in the plaintiff's favor.

Assuming, then, that the intestate, when she undertook to go from the station to the train, did so upon the implied invitation of the company, the difficult question arises, whether in the. manner and circumstances of her stepping upon the track, for that purpose, there was negligence which required the court to grant the defendant’s motion for a nonsuit. That she did not see or hear the coming freight train cannot be doubted ; that she might have seen it if she had looked for it is apparent; that it was seen and heard by others at the station is proved. The fact that the deceased'had the implied invitation of the company to cross their track did not relieve her from the necessity of using care and precaution for her own safety. Even if the implied invitation to cross the track is to be regarded as an implied assurance on the part of the company that she could do so safely, she nevertheless would have had no claim against the defendant if she had knowingly placed herself in front of the advancing engine, or had shut her eyes and stopped her ears so that she could not know of its approach. So, too, if she wholly omitted to look or listen, through mere inattention or neglect, and was injured in consequence. But to hold that she was required to exercise the same degree of care and caution in crossing the track that is required of a traveler at a road crossing, would be to overlook the fact that she had an implied invitation from the company to cross the track, and the implied assurance of the company that she could do so safely. We are not prepared to say, as matter of law, that her omission to look or listen in order to discover whether by chance a train was coming was negligence. The evidence authorized the jury to find that when the intestate saw the passenger train hitch forward, before it had quite stopped, she supposed it was starting on its way to Buffalo ; that thinking it was necessary for her to hurry in order to get on, and that she could get on safely if she did hurry, she started immediately and walked rapidly towards the train ; that she was eagoi’ly intent upon accomplishing her object ; that she supposed, with reason, that the way ixrovided by the company for passengers to go from the station to the train was safe ; that she had no notice or intimation of the approach of the unexpected freight train ; that she kept her eyes upon the train which she was endeavoring to reach, or the path along which she was hurrying ; that her ears were filled with the sound of the bell upon the engine of the passenger train, -which it is to be presumed was rung as the statute required ; and that these and the other circumstances of the transaction, as disclosed by the evidence, accounted for her not seeing or hearing the freight train, and for her not looking in the direction from which it was coming. We think, therefore, that it was for the jury to say whether, in view of all the circumstances, the fact that she did not know of the approach of the train till she was struck by it, is satisfactorily accounted for without imputing to her such a degree of inattention or want of due care as constituted negligence.

We think also that the terms of the charge, in submitting the question of contributory negligence to the jury, furnish no just ground for exception. The judge declined to charge, as requested by the defendant’s counsel, that the deceased was bound to know that a train might be passing and to act accordingly, but he charged that in coming out of the depot, and approaching the passenger train for the purpose of taking passage upon it, the intestate was required to use that care, caution and prudence which ordinary people would be expected to use under like circumstances, so far as related to looking and listening for the train. And when subsequently requested by the defendant’s counsel to charge unqualifiedly that it was the duty of the deceased to look and listen, for the purpose of ascertaining whether a train was coming from the west, the judge declined, with good reason, as we think, to charge otherwise than he had done.

The only other question that need be adverted to, relates to the damages. The deceased was about thirty-one years of age, and had accumulated some property. She was unmarried, and the plaintiff was her father. The defendant’s counsel asked the court to charge, that in estimating damages the jury might consider the fact that the plaintiff, as next of kin, would be entitled to the property of the deceased, by reason of her death. The court refused, and charged that the plaintiff could only recover for the pecuniary injury that he hacl sustained by the death of the intestate. The request was but little less than asking the court to charge that the defendant, having benefited the plaintiff, by killing his daughter, and thus putting him in possession of her estate, is entitled to compensation for the service, in the shape of a reduction of the damages given by the statute. The request was properly refused.

The motion for a new trial should be denied and judgment ordered for the plaintiff on the verdict.'

Present — Talcott, P. J., Smith and Hardin, JJ

Ordered accordingly.


text:
    SAMUEL H. MORGAN, Receiver, etc. of ORRIN W. POTTER, Appellant, v. SARAH A. POTTER and EMMA GRACE POTTER, Respondents, Impleaded with ORRIN W. POTTER and others.

      Conveyance — when fraudulent as to creditors —Irregularity in receiver’s bond— who 'may avail himself thereof.

    A conveyance by a husband of all bis property to his wife and daughter, on condition that the wife will discontinue a suit for a limited divorce then pending, and that she shall thereafter live apart from him, is fraudulent and void as to existing creditors.

      Semble, that an agreement of a husband and wife to live separate and apart from each other, is invalid.
    The fact that the undertaking filed by a receiver, appointed in supplementary proceedings, is not under seal, is an irregularity of which only the judgment-debtor can avail himself.
    Appeal from a judgment in favor of the defendants, entered on the report of a referee.
    This action was brought by the plaintiff as a receiver of the property of Orrin W. Potter, a judgment-debtor, appointed in supplementary proceedings, to set aside certain transfers of his property, consisting of a house and lot and .certain chattels, made by said debtor to Sarah A. Potter, his wife, and Emma Grace Potter, his daughter, the respondents herein, csubsequently to the accruing of the indebtedness upon which the judgments were obtained on which the supplementary proceedings Avere based. The transfers Avere executed in pursuance of an agreement between the debtor and his wife, whereby she agreed to discontinue a suit then pending against him for a limited divorce, and by Avhich the parties agreed to live apart from each other. There was no other consideration for the transfers ; and they conveyed nearly all the debtor's property, leaving him insolvent. The referee dismissed the complaint, Avith costs.

      A. G. Rice, for the appellant.

      Angel & Jones, for the respondents.
   Smith, J.:

The finding of the referee that the transfers in question wore made Avithout intent to defraud creditors is against the evidence furnished by the undisputed facts of the case. Potter, being insolvent, transferred his property to his Avife and child, Avithout any consideration, except the agreement between himself and his Avife to live separate and apart from each other, Avhich Avas, of itself, unlawful. He retained nothing to satisfy his creditors. The bare statement of the case shows a fraudulent design oil his part. Eor the necessary consequence of the transaction Avas to deprive his creditors of the moans of collecting their debts, and as he must have been presumed to have foreseen and intended the inevitable result of his oavu act, the transaction itself is conclusive evidence of a fraudulent intent. (Per Sutherland, J., in Babcock v. Eckler, 24 N. Y., 632.) Besides, Potter testified that he transferred the property to his Avife because he preferred that his family should have it rather than its creditors. The transfers, regarded as purely voluntary conveyances, were fraudulent as against the creditors of Potter, he being insolvent. [Carpenter v. Roe, 10 N. Y., 227; Cole v. Tyler, 65 id., 73.)

The agreement with his wife furnished no consideration as against the claims of creditors. The contract to live separate was one wbieb the courts will not uphold. (Rogers v. Rogers, 4 Paige, 517, Cropsey v. McKinney, 30 Barb., 47.) Even if it were valid, the equities of the case, as against the creditors of the husband, would be no stronger than if he and his wife were living together amicably, and he had voluntarily conveyed the property for the support of herself and child.

The respondents take the position that the receiver has not filed a bond as required by the order appointing him, and that consequently ho is not a receiver, and cannot maintain the action. It appears that ho executed an undertaking or obligation, which was not sealed. In that respect the instrument was irregular, but, we think, the judgment-debtor only can take advantage of the irregularity, and he has not appealed. This view of the matter is maintained by the cases of Tyler v. Willis (33 Barb., 327), and Underwood v. Sutcliffe (10 Hun, 453).

Johnson v. Martin (1 New York Supreme Court Reports [T. & C.], page 504), relied upon by the respondents’ counsel, is not necessarily in conflict with the cases above cited, as for aught that appears in that case, the objection was taken by the judgment-debtor. And it does not appear that the receiver had obtained an order of the court giving him leave to sue, as is the case here.

The judgment should be reversed, and a new trial ordered before another referee, costs to abide event.

Talcott, P. J., and Haudin, J., concurred.

Ordered accordingly.


author: Mullin, P. J. :

text:
      PATRICK BUTLER, Respondent, v. CLARK RICE, Appellant.

      Right to use of land as a compensation for services —foifeited by a breach of the contract of sei’vice.

    Plaintiff and defendant entered into a contract whereby the former agreed to work for the latter for the term of eight months, for which services defendant agreed to pay him twenty dollars per month and give him the use of an acre of land upon which to pilant potatoes. The plaintiff commenced to work March fifteenth, under the contract, and continued so to do until July twentieth, when he left defendant’s service without just cause, having before doing so planted potatoes on the acre land of which he was entitled to the use by the terms of the contract.

      Held, that by leaving defendant’s services without cause, he forfeited all right to the use of the land, and that defendant was entitled to the crop of potatoes.
    Appeal from the judgment of the County Court of Allegany county.
    The action was commenced before a justice of the peace of said county to recover the value of a quantity of potatoes, alleged to be the property of the plaintiff and which the defendant converted to his own use.
    In the winter of 1874-1875 the defendant entered into a contract with plaintiff, whereby the latter agreed to work for the former for the term of eight months, for which service the defendant agreed to pay plaintiff twenty dollars per month and give him the use of an acre of land on which to plant potatoes. The term of service was to commence on the 15th of March, 1875. The plaintiff commenced to work under the contract on the day last mentioned, and continued to work until about the 20th of July, 1875, when he left defendant’s service without cause. The defendant caused the potatoes planted by plaintiff on the acre aforesaid to be dug and put into his collar-. There were about 100 bushels of them.
    After the plaintiff left defendant’s service the latter sued him for damages, sustained by him by reason of plaintiff’s breach of the contract, before a justice of the peace. Evidence was given on that trial by defendant, that he had paid plaintiff $31.90 more than his wages amounted to for the term he worked for defendant, and of the breach of the contract by plaintiff. Among the items charged to the plaintiff by the defendant was three dollars for the seed potatoes planted on the acre of land assigned by defendant to plaintiff; one dollar for working and marking potatoe ground, and two dollars for plowing and cultivating the same. These services were rendered in June, 1875 ; the court rendered judgment in that action in favor of the plaintiff therein for $106.53.
    The defendant in his answer in this action denied the allegations of the complaint, and for a second defence alleged that the plaintiff occupied the land on which the potatoes were raised as tenant at will of the defendant, and that he terminated the tenancy by his own fault, and as a third defence that the defendant recovered a judgment against the plaintiff for a breach of the contract of hiring. The justice, after hearing the proofs and allegations of the parties, rendered judgment in favor of the- plaintiff, and against the defendant for damages and costs.
    The defendant appealed to the County Court of Allegany county, in which court a trial of the issues between the parties was had before a jury, and judgment was rendered in favor of the plaintiff for the sum of $35.80 damages, together with costs, and from that judgment the defendant appeals to this court.

      E. E. & G. W. Harding, for the appellant.
    The judgment which the defendant recovered against the plaintiff before Washington White, justice of the peace, adjudicated the fact that the plaintiff violated his contract of hiring with the defendant, and is a bar to this action. (Davis v. Talcott, 12 N. Y., 184; Gates v. Preston, 41 id., 113; Collins v. Bennett, 46 id., 490.) It is a well settled rule of law that where a servant agrees to work a certain specified time for a consideration, and without cause abandons the contract before he has served the required period, he can maintain no action for what he has done under the contract. (Lantry v. Parhs, 8 Cow., 63; MoneTlY. Burns, 4 Denio, 121; Huntington v. Clafflin, 10 Bosw., 262; McGee v. Gibson, 1 B. Munroe, 105; Deboiv v. Colfax, 5 Ilalsted R., 128.) A tenant at will who through his own fault terminates his estate is not entitled to emblements. (Cruise on Real Property, title 9, chap. 1 sec. 12, vol. 1. p. 271; Washburno on Real Property, vol. 1, p. 583 [4th cd.], andpp. 132-138; 2 Flint on Real Property, 216; Coke Lit., 55 b; Davis v. Thompson, 13 Me., 209; Sherburne v. Jones, 20 id., 70; Brown v. Thurston, 56 id., 126; Shepard v. PhilbrieJc, 2 Demo, 174,; LaneY. King, 8 Wend., 584; AldricliY. Reynolds, 1 Barb. Ch., 913.) The privity between the plaintiff and defendant being destroyed, and the defendant being in possession of this land is entitled to this field of growing potatoes. (Demott v. Hagerman, 8 Cow. 220.)

      A. P. Laning, for the respondent.

       Decided January Term, 1879.

   Mullin, P. J. :

The use of the land on which to raise a crop of potatoes was a part of the compensation that plaintiff was to receive for his services for the defendant for the term of eight months. When he abandoned defendant’s employ without the fault of the defendant, all right to compensation ceased, and he became liable to defendant for such damages as he sustained by reason of the breach. The right to the use of the land ceased at the same time as his right to the twenty dollars per month.

It would not be seriously claimed that, after a breach of the contract the plaintiff was entitled to any part of his wages, not even that which he had earned before the breach.

Had the agreement between the parties been, that as part of plaintiff’s compensation for his services, he should have the use of defendant’s horse, and had he abandoned defendant’s employ without cause before the expiration of the term for which he had agreed to work for defendant, it would not be claimed that his right to retain the horse did not instantly cease, and the right of the defendant to its possession become perfect. I am unable to perceive any distinction between the right of the defendant to the horse, and his right to the possession of the land and whatever was growing upon it.

Could the interest of the. plaintiff in the land be considered strictly a tenancy at will, he would be entitled to the potatoes. Chancellor Kent in his Commentaries (vol. 4, p. Ill) says: “It was determined very anciently that estates at will were equally at the will of both parties, and neither of them was permitted to exercise his pleasure in a wanton manner and contrary to equity and good faith. The lessor could not detennine the estate after the tenant had sowed and before he reaped, so as to prevent the necessary ingress and regress to take the emblements.

“ The possession of the land on which the crop is growing continues in the tenant until the time of taking it arrives.”

But this proposition has no application to the case of a tenant who has himself terminated the tenancy without the fault of the lessor. This was directly held in McGee v. Gibson (1 B. Munroe, 105); sec, also, Cruise on Real Property (title 9, chap. 1, § 12); Washb. on Real Property (vol. 1, p. 584); Coke on Litt. (55-56).

The judgment in the former suit brought by defendant against plaintiff is not a .bar to this action. In that action defendant claimed to recover damages for plaintiff’s breach of the contract to work for defendant eight months. The value of the use of the land, prior to the breach, was not recoverable as damages for the breach of the contract. The use was part of the wages to be paid, and the use could not be recovered for, any more than money paid for wages earned could be recovered back. There is nothing in the complaint in the former suit, nor in the evidence before the justice, tending to show that defendant sought to recover for the use of the land, subsequent to the breach of the contract.

The defendant in his suit against the plaintiff recovered for the seed potatoes that plaintiff planted on the land in question, and for work done upon it in preparing it for the crop. The plaintiff became indebted to the defendant for these things months before he, (plaintiff ), abandoned the contract, and defendant did not lose his right to recover for them, because plaintiff subsequently violated his contract. If there is any injustice in the claim, plaintiff has no one to blame for it but himself. Piad such a claim been made in the complaint, or proved on the trial, the judgment would have been a bar to this action. It is unnecessary to consider the other exceptions to the rulings on the trial and to the charge ; the judgment for the reasons already suggested is erroneous and must be reversed.

Judgment reversed, and new trial ordered in the Comity Court of Allegany county.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment and order reversed, and new trial ordered in Allegany County Court, costs to abide event.