author: WILLIAMS, J.

text:
    National Bank of Deposit of City of New York, Resp’t, v. Henry P. Rogers et al., as Executors, etc., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Pledge—Possession.
    The delivery of the possession of pledged goods is absolutely essential in order to constitute a pledge.
    2. Same—Replevin.
    Where there is neither actual nor symbolical delivery of goods pledged» the pledgee cannot maintain replevin to recover them from the assignee of the pledgor.
    8. Same—Legal title.
    In order to maintain such action, the pledgee must have the legal title, or a right to the possession of the goods.
    Appeal from a judgment in favor of- plaintiff, entered upon a verdict, and from an order denying a motion for a new trial upon the minutes of the court.
    Theuction was brought to recover chattels, commonly known as an “action of replevin.” The goods were purchased by Sardy, Coles & Co., in Europe, but were consigned to Perry, Rider & Co. customhouse brokers in New York. After the arrival of the goods in New York, and while they were still in the customhouse and the duties thereon remained unpaid, and on the 31st day of August, 1891, Sardy, Coles & Co., borrowed from plaintiff $3,000 to be used, among other things, in paying the duties on the goods and gave their note therefor, payable on demand, which stated that they had deposited the goods with the plaintiff as collateral security for the payment of the note and all other demands unpaid, and that they gave the plaintiff a lien upon the goods for the payment of such note and demands, and authorized the plaintiff, on the nonpayment of such note and demands, to" sell the whole or any part of the goods, and after deducting the expenses, to apply the proceeds in payment of such, note and demands; and Sardy, Coles & Co. at the same time gave the plaintiff a receipt for the goods, agreeing to hold them in trust for the plaintiff and as its property, and to sell the same for its account, and hand the proceeds to the plaintiff, to apply on the note and demands, and further providing that the plaintiff might at any time cancel this trust, and take possession of the goods or the proceeds thereof. Thereafter, and on the 4th day of September, 1891, Sardy, Coles & Co. delivered to Perry, Rider & Co. a check for $1,345.35, with which to pay the duties on the goods, and the duties were thereupon paid, and the goods were taken from the customhouse and delivered to Sardy, Coles & Co. After the goods had come into the possession of Sardy, Coles & Co., and on the 30th day of September, 1891, they executed and delivered to defendant’s testator their indenture bearing date September 23,1891, whereby in effect, they stated that they were indebted to such testator in the sum of $25,063.21 — giving the terms thereof, — and that in consideration of such indebtedness they sold, assigned and transferred to him all their property, real and personal, of every kind, to be by him. converted into money, and the proceeds thereof applied to the payment of their indebtedness to him, and to the payment of debts owing by them to other parties, and to pay over the balance, if any, to Sardy, Coles & Co. Under this indenture the testator,-on the same 30th day of September, 1891, took possession of the property therein described, including the goods here in question. On the same day Sardy, Coles & Co. wrote to plaintiff that they had made an assignment of their business to the testator ; and thereupon the plaintiff demanded possession of the goods in question, at the place of business of Sardy, Coles & Co., from the persons there in charge of the assigned property, and also demanded the goods of the authorized attorneys and agents of the testator, at their office. October 3, 1891, the plaintiff caused copies of note, receipt, etc., to be sent to the attorneys for the testator, in a letter, wherein was stated the nature of the plaintiff’s claim to the goods, and wherein the testator was asked to recognize the plaintiff's claim and to pay its indebtedness. October 24, 1891, a paper was served by plaintiff, canceling the trust, and demanding possession of the goods, The goods were not surrendered to plaintiff, but were inventoried as a part of the assigned property by the testator, and thereafter, and on October 26, 1891, this action was commenced. The testator died April 22, 1892, and his executors were thereafter substituted as defendants in the action. At the time the money was loaned by the plaintiff to Sardy, Coles & Co., and the note and receipt were taken, the goods were not in the possession of Sardy, Coles & Co. but in the customhouse, subject to a lien of duties. Sardy, Coles & Co. did not have the bills of lading, even. Perry, Rider & Co. were consignees, and held the bills of lading. They did not then, or for some days thereafter, transfer the bills of lading to any one. The plaintiff never had actual possession of the goods, nor did it ever have any transfer of the bills of lading. The plaintiff never canceled the trust agreement, or demanded the possession of the goods, until after the assignment was executed and delivered to defendant’s testator, and he had actually taken the goods into his possession thereunder. On the trial the defendants moved for a dismissal of the complaint on the ground, among others, that the plaintiff had failed to show any title to, or possession for right to possession of the goods. The court denied this motion, and held, as a matter of law, that plaintiff’s title and right to possession of the goods covered by the trust agreement, so called, was conclusively established, and that the only question for the jury was whether the goods taken by the sheriff in this action were the same as those covered by the trust agreement. To all of which the defendants excepted. The jury rendered a verdict for the plaintiff* and from the judgment entered on such verdict this appeal is taken.
    Kenneson, Crain & Alling, for app’lts; Reeves & Todd, for resp’t.
   WILLIAMS, J.

—The evidence was sufficient to sustain the verdict of the jury as to the indentity of the goods, to recover which the action was brought. The real question is whether the trial court was justified, upon the evidence, in holding that plaintiff’s title or right to possession o£ the goods covered by the trust agreement, socalled, was conclusively established so as to enable it to maintain this action. There was substantially no dispute as to the facts, and the question was therefore correctly regarded as one of law, for the trial .court. The goods were never actiually delivered to the plaintiff, nor was there any symbolical delivery by way of transfer and delivery to the plaintiff of the bills of lading. The goods were, at the time the loan was made and the note and the receipt were taken, in the possession of the customhouse authorities, and were not given up By them until the duties were paid, some days later. The bills of lading were held by Perry, Rider & Go., who were the consignees therein named, and on transfer was made of the bills to any one until after the duties were so paid. The statements in the note and the receipt as to the ■delivery and redelivery of the goods were untrue, in fact. Under these circumstances, there was, and could be, no legal pledge of the goods by Sardy, Coles & Co. to the plaintiff, inasmuch as the delivery of possession is absolutely essential in order to constitute a pledge. Upon the conceded facts, the most that could be claimed by the plaintiff was that, by virtue of the note and receipt, it acquired an equitable lien upon the goods. Such a lien, however, even if it existed, did not authorize the plaintiff to reduce the goods to possession, against the consent of the defendant’s testator, without the interposition of a court of equity. Such a lien, therefore, was not a sufficient interest in the property to enable the plaintiff to maintain this action. An action in equity, to ■enforce such a lien and recover the possession of the goods, might very likely have been maintained; but, in order to maintain this action, the plaintiff must have had the legal title, or a legal right to the possession of the goods. Deeley v. Dwight, 132 N. Y. 59 ; 43 St. Rep. 409, and cases therein referred to. The mere equitable right to the possession of the property will not do. It was distinctly held in Wheeler v. Allen, 51 N. Y. 37, that the plaintiff could not maintain replevin where the legal title was in the ■defendant as trustee for him.

EARL, 0., said:

“In law, he [the defendant] held the scrip as trustee for the plaintiff; and as trustee, he could be compelled to account to the plaintiff in an action in equity. But an action of replevin to recover the scrip, under such circumstances, is a great novelty. The legal title was never vested in the plaintiff, and his only remedy to procure this scrip was By an action in equity.”

This case was held in Railroad Co. v. Bayne, 75 N. Y. 4, to be authority for the equitable action. Folger, J. said:

“The opinion of Earl, 0., in that case, states that the remedy of the plaintiff there to procure the scrip was a suit in equity.”

The same rule was laid down in Haas v. Altieri 50 St. Rep. 341; 21 N.Y. Supp. 950. The court said that the plaintiff must have the right of immediate possession, and that the title must be a legal title, and not a right enforceable only in equity.

The result of these views is that the court erred in holding that the plaintiff had such interest in the goods as entitled it to maintain this action.

The judgment should be reversed, and a new trial ordered, with costs to the appellants, to abide event.

All concur.


source: Caselaw Access Project

author: VAN BRUNT, P. J.

license: Public Domain

text:
    Mary E. Schoen, Resp’t, v. Albert Wagner, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 7, 1896.)

    1. Evidence—Parol.
    The contract, in this case, when supplemented by the plans referred to, was held not to be ambiguous so as to admit parol evidence.
    3. Contract—Breach.
    Where, in an action to recover a sum alleged to be due on a contract of sale to defendant of plaintiff’s interest in two buildings “being erected” by a certain railroad company, there is no disputed question of fact, and the agreement between the parties, with the plans, makes out an intelligible contract, a breach of which the plaintiff has failed to show, there is no question to go to the jury.
    Appeal from a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    S. Untermeyer, for app’lt; C. C. Leeds, for resp’t.
   VAN BRUNT, P. J.

—This action was brought to recover $6,000, a balance due upon a" written agreement. The defendant admitted the agreement, but denied that there was anything due thereunder. Upon the trial, the agreement was offered in evidence and the court held that it was ambiguous, and needed explanation. Evidence was offered on both sides, and the case submitted to the jury, who found a verdict for the plaintiff; and from the judgment thereupon entered, and from the order denying motion for a new trial, this appeal is taken.

The agreement upon which the action was brought is as follows :

“July 7, 1892, New York.
“This agreement, between Albert Wagner and Mary E. Schoen, that said Wagner is to pay Mary M. Schoen (12,000) twelve thousand dollars for her claim in the two buildings now being erected by the 3rd Ave. R. R. Co., Bowery, Bayard. St., and also 65th St. and 3rd Ave.; the first payment of (6,000) six thousand to be paid during the first part of the building now contemplated, and the remaining 6,000 to be paid during the completion of said building, as per plans filed in the building department as now contemplated by the 3rd Ave. R. R. Co. If any plans are changed then my claim shall be paid in the same ratio as mentioned. Referring to the first payments, payments are to be made as follows: $1,000 during the month of July, 1892; $2,000 during the month of September, 1892; $2,000 during the month of Novernber; and $1,000 during the month of January, 1893. The second payment to be arranged hereafter to suit the convenience of the contracting parties. Albert Wagner.
“Mary E. Sehoen.”

This instrument seems to us to be reasonably clear in its terms, and to require no explanation as to what the parties meant by their contract, when the agreement is supplemented by the plans, which at the time the same was entered into were on file in the building department, and are referred to in the agreement. Upon an examination of those plans, as offered upon the trial, it appears clearly what the parties intended, viz. that the defendant should pay to the plaintiff $6,000 during the progress of the work upon the first part of the building; the intention upon the part of the railroad company, the builder, being only partially to complete the building then, and at some subsequent time to erect the remainder of the building, as shown upon the plans on file in the building department. The second payment of $6,000 was to be made during the completion of the building, as by the plans filed. The dates of the first payment were fixed by the contract, and the dates of the second payment were to be arranged thereafter to suit the convenience of the contracting parties. At the time of the commencement of this action, the first part of the building only had been completed, and the payments called for during the erection of the first part of the building had been made. There was nothing due to the plaintiff in respect to the second half of the building, because that work had not been begun. The building according to the plans was to be a nine-story building at the comer of Bowery and Bayard streets, and a new building between Sixty-Fifth and Sixty-Sixth streets, extending from Second to Third avenues. At the time of entering into this agreement, it was contemplated to erect part of the Sixty-Fifth street building, and the basement and first story of the building at the corner of Bowery and Bayard streets; and it was this condition of the contemplation that led to the separation of the items of the agreement,—the first $6,000 to be paid upon the first part contemplated to be built, and the second $6,000 during the doing of the work of the second part, which it was evidently understood between the parties would be deferred for some time, so that they could not fix the dates for the payment as they had done in respect to the first portion of the work. There was evidently no question to go to the jury, because there was no disputed question of fact; and the agreement between the parties, with the plans, made out an intelligible contract, a breach-of which the plaintiff has failed to show.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: BARTLETT, J. PRATT, J.

text:
    Caroline E. Girty, App’lt, v. Standard Oil Company of New York, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed February 4, 1896.)

    1. Duress—Threat to commit suicide.
    A threat by a man to his wife that, unless she signs certain papers, he will be arrested for embezzlement and will commit suicide, does not constitute duress.
    2. Deed—Cancellation—Fraud.
    In an action to cancel a deed on the ground that plaintiff was induced to execute it by false representations of her husband, acting- as defendant’s agent, and that plaintiff did not know the nature of the instrument, the evidence was held insufficient to show fraud.
    3. Same—Consideration.
    An agreement by a corporation to waive a large money claim against an employe who was accused of embezzlement, and to retain him in its employ, is sufficient consideration for a deed executed by the employe’s wife.
    Appeal from a judgment, dismissing the complaint upon the merits.
    Charles G. F. Wahle, for app’lt; Joseph H. Choate, for resp’t.
   BARTLETT, J.

—In the month of March, 1883, the plaintiff in this action, then upward of sixty years of age, joined with her husband, George W. Girty, in the execution of a deed whereby there was conveyed to the Standard Oil Company of New York, a house and lots in the city of Cleveland, Ohio, which property stood in the name of the plaintiff. The present suit (which was not commenced until September, 1894) is brought to set aside that conveyance, on the ground that the plaintiff was induced to sign the deed by duress, exercised upon her by her husband, acting as the agent of the Standard Oil Company, and by misrepresentations made by him in the same capacity. The duress is alleged to have consisted of threats to commit suicide, on the part •of the husband, who proposed at the same time that his wife should commit suicide with him. The alleged misrepresentations consisted in telling the plaintiff that the conveyance was simply a paper to secure the Standard Oil Company, and that she .would not lose anything bv signing it. The defense set up in the answer was that the plaintiff's husband had been in the employ of the Standard Oil Company, having charge of its moneys and books of account; that in February, 1883, it was discovered that he had embezzled upward of a quarter of a million dollars, belonging to the corporation; that he had to a great extent paid for the Cleveland property in question, which stood in his wife’s name, out of the moneys thus embezzled; and that the conveyance of that property, now sought to be set aside, was made by way of reparation for the embezzlement by the husband, and to save his good name. The defendant, however, was not called upon to offer any proof in support of these allegations in the answer; for, at that end of the plaintiff’s case, the court below dismissed the complaint on the merits. Fronpthe judgment in favor of the defendant, entered upon its dismissal, plaintiff,has appealed.

The trial judge found, as matter of fact, that there was no fraud, misrepresentation, duress, or undue influence in procuring from the plaintiff the conveyance mentioned in the complaint, and, furthermore, that the action was barred by the statute of limitations and the laches of the plaintiff. Tne counsel for the appellant contends that both these conclusions are erroneous. I have carefully read through this record, and it seems tome that the evidence fully justifies the decision in all respects.

The allegation as to duress was not sustained by the proof. The husband told the wife that he was accused of embezzlement, and wanted her to sign some papers; that if she signed them he would go on with the same salary in the employ of the Standard Oil Company, and nobody would ever know it: that if she did not, he would be arrested, and never could stand that disgrace, but would commit suicide, and she had better commit suicide with him. There is authority to the effect that a threat on the part of. a son to commit suicide does not, in any legal sense, constitute duress, so as to invalidate an instrument claimed to have been executed by his mother in consequence of such threat. Insurance Co. v. Meeker, 35 N. Y. 614. And it has also been held that a threat by a husband to poison himself, whereby a wife was induced to sign a promissory note, did not amount to duress in law. Wright v. Remington, 41 N. J. Law, 48. In the case last cited the supreme court of New Jersey declared that there was no trace of a doctrine in the law that the threat of a husband against himself would avoid the contract of his wife, and used this language, which is peculiarly applicable to the case at bar :

“ It may be that, had the payees of the note, or their agent, threatened to take the life of the husband unless the wife signed the note, ^and she signed under the influence of the terror excited by such threats, it would have avoided the contract. But here the threats were made by the husband against his own wife. The maker and the object of the threats were the same. Their execution was within his own power of volition. The wife knew that no harm would come to him except by his own act. The present case is utterly unlike an instance of the presence of some overshadowing danger, uncontrollable by either the wife or the person endangered.”

All this could be said just as truly of the alleged duress in the present case, if we substitute the deed for the note, and the grantees named in the deed for the payees named in the note. Considering Mrs. Girty’s testimony as a whole, I think it indicates that she was actuated in what she did, not by fear that her husband would kill himself, but by a praiseworthy desire to help him out of the difficulties in which he was plunged in consequence of the charge that he was a defaulter to the Standard Oil Company. The trial judge was at liberty to adopt this view, or any other which could fairly be derived from the evidence ; for he disposed of the case, not as upon a nonsuit, but on the merits.

As to the suggestion that the wife should commit suicide, there is absolutely nothing in the case to show that she had the slightest fear of any compulsion in that direction. In her narrative of what occurred at the time she signed the conveyance, the plaintiff thus states the alleged fraudulent misrepresentation :

“At the time my husband asked me to sign these papers, he said I would not lose it, that it was only a matter of form ; that I should have it back again.”

It is apparent that, when this was said, she must have known the character of the instrument she was about to execute; for she had previously answered her husband, when he first asked her to give him her signature, by saying, “ George, I don’t want to sign my home away.” No phrase in common use is more expressive of the idea of conveying real property to another than the words “ to sign my home away.” Its meaning seems to me unmistakable. Its use by the plainttff leaves no doubt in my mind that Mrs. Girty was well aware of the nature of the conveyance to which she says she attached her name without reading it. If she "did not know what it was, the statements of her husband which are relied upon as misrepresentations were nothing more than consolatory assurances on his part, expressive of the hope that the property might some time be restored.

In the complaint, the value of the property, with the fixtures and chattels therein contained, is stated at $110,000. According to the plaintiff’s testimony, her only contribution towards the acquisition of this real and personal estate was $5,000, given to her husband in the 50’s. ■ She conceded that it was, for the most part, his property, standing in her name. When the charge of embezzlement was made against Mr. Girty, while he denied' the accusation in words, his conduct was such as to indicate that it'was true. But,.however great may have been the wife’s confidence in his-honesty, her evidence shows that she must have realized that a large money claim was made by the Standard Oil Company against her husband on account of his alleged defalcation, and she executed the deed to relieve him from that claim. There is no proof that the claim was not well founded, and the acts of Mr. Girty tended to show'that it was. He appears to have been retained in the service of the corporation in consequence of the conveyance, when, otherwise, he would have been discharged; and this constituted a sufficient consideration.

The expression to which I have already referred in regard to-signing away her home, which the plaintiff testifies she used when asked to sign the deed, affords the clearest evidence that she knew every essential fact constituting her alleged cause of action more than ten years before the present suit was brought. Further proof in support of the plea of the statute of limitations is tobe found in the plaintiff’s contemporaneous execution of a paper conveying the furniture in the Cleveland house to the defendant, and the steps which she took to prevent some furniture which belonged to her daughter from passing under that bill of sale.

Some criticism of the oral opinion of the trial judge is contained in the brief for the appellant, on account of the assumption of the court below that Mr. Girty had, as matter of fact, embezzled the money which he was accused of embezzling. I am unable to see, however, how this assumption could have affected the result. It was enough that the plaintiffs husband was accused of the defalcation, and noted as though the charge was true.

The appellant was not harmed by the exclusion of the evidence mentioned in the fifth point of the appellant’s brief. The judgment seems to me to be right, on the facts and on the law, and 1 am in favor of affirmance.

Judgment affirmed, with costs.

BROWN, P. J., and HATCH, J., concur.

PRATT, J.

(dissenting). - -This action is brought- to set aside a conveyance of property valued at $105,000, made by a wife, without consideration moving to her, at the request of her husband. The proof shows that plaintiff’s son died on March 10th, and on the 19th, upon her return from the funeral, her husband informed her that he was falsely accused by the Standard Oil Company of having taken their property, and that, if she did not sign the papers that had been prepared, and were there present, he would be arrested, in which case he could not stand the disgrace, and would take his life- He said she would not lose the property; that it was only a matter of form, etc. She had no previous notice of what was required of her, had no counsel present, nor independent advice, and then and there, without further consideration, and in. the presence of the company’s agent, executed the papers. She believed he was in danger of arrest, and may have thought that in such case he would take his life.

• The principles on which a court of equity proceeds in such cases are familiar. In the recent case of Dignan v. Dignan (N. J. Ch.) 14 Atl. 887, it is held that, where one enters into an agreement, without giving the matter the slightest thought or consideration, under such circumstances that it is perfectly apparent that he acted under some unhappy influences, or some superior power, he should be-released from such obligation unless superior equities have arisen. In Sistare v. Heckscher, 45 St. Rep. 699, the wife was suddenly appealed to to execute a security for her husband’s debt. She was told it was only a matter of form, but that if she would execute it the creditor would advance money to help her husband. It does not appear that any threats were made against the husband, but the deed was set aside, although the creditor was not a party to the undue influence, which the court characterized as fraud. The rule on which courts proceed was stated in Sercombe v. Sanders, 34 Beav. 385, as follows:

“ Creditors should understand that they cannot improve their security, taken from persons to whom they have given credit, by inducing them, at the last moment, to compel near relations or persons under their influence to pay their debts.”

In that case there were no threats nor false representations; but, the party having acted hastily, and without independent professional advice, the deed was set aside. The court says i

“ It is not sufficient that a man knew what the actual transaction was. You must also show that is emancipated from control, and had the advantage of a separate solicitor, who would naturally have said to him, ‘You must understand you are giving up your share forever,’ etc.”

In Berdoe v. Dawson, 13 Wkly. Rep. 420, the master of the rolls held that, where a person takes from a son a security for a debt due by the father, he incurs the strongest obligation to prove, beyond a reasonable doubt, that the transaction is a righteous one, that the son understood it perfectly, and was not acting under undue influence which the father possessed over him. That to subject a women to the fear of arrest of her husband or .other near relative, in order to procure a conveyance of her property, is exercising undue influence, would seem not to require authority. Yet it is found in abundance. Ingersoll v. Roe, 65 Barb. 355; Eadie v. Slimmon, 26 N. Y. 9-15. See, also, McCandless v. Engle, 51 Pa. St. 309; Stiles v. Stiles, 14 Mich, 72 ; Wilson v. Bull, 10 Ohio, 250 ; Boyd v. De La Montagnie, 73 N. Y. 502 ; Witbeck v. Witbeck, 25 Mich. 442; Wiley v. Prince, 21 Tex. 637.

The application of these principles to the case at bar is easy. If an attempt was to be made to influence plaintiff, a woman in advanced years, to deprive herself of a fortune to please her husband, the simplest rule of honesty required that she should have ample notice, and the assistance of those who were competent to advise her, and not adversely interested. She should not have been subjected to the influence of her fears. The burden of proof was upon defendants to show, in the language of Lord Eldon, that their case was a righteous one. When it appears that she parted with a large property without consideration moving to her, the presumption of fraud arises, and must be overcome by proof. Silverthorn v. Troxall (N. J. Ch.) 12 Atl. 614. When it further appears that plaintiff was required to sign a deed previously prepared without notice to her, that she had no opportunity to get advice from disinterested parties, and her feelings were worked upon by her fear of her husband's arrest, the evidence of undue influence is irresistible. To expose her to such influence was a fraud.

It is suggested that the lapse of time has deprived plaintiff of her rights. We do not see that she was fully apprised of the facts upon which her rights depended until 1882. She owed defendants no duty of active vigilance, and she seems to have been under fears for her husband so long as he lived. The delay has not in-j ured defendants, and raises no equity in their favor.

The judgment should be set aside, and new trial.granted; costs to abide the event.


author: BARRETT, J.

text:
    John J. Zimmele, Resp’t, v. American Plaster-Board Company et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Principal and agent—Liability.
    An agent of the vendor who, because of misrepresentations may be liable in damages, cannot, upon rescission, be held liable for the purchase price which his principal, and not he, has received.
    3. Same—Sale—Rescission,
    The right to disaffirm a contract is waived when the defrauded party does an act which unequivocally treats the contract as subsisting after the-facts giving the right to rescind have come to his knowledge. So held, where a purchaser'of stock in a company, who, as an inducement to the purchase, is given employment by it and continues, for a long time after obtaining knowledge of the facts, in the employment and fails to take any steps towards disaffirmance.
    Appeal from a judgment for plaintiff.
    Francis Forbes and Charles T. Haviland, for app’lt American: Plaster-Board Company; James L. Bishop, for app’lt Sessions; Robert B. Honeyman, for resp’t.
   BARRETT, J.

—This is not an action for damages for deceit We agree with the respondent that the plaintiff is suing to recover “what he parted with,” upon the theory of a disaffirmance. The complaint proceeds upon that theory, in its averment that upon, learning of the fraud the plaintiff demanded back his money, and offered to surrender all his claim upon the stock. The learned judge acted upon it with regard to the rule of damages, and the jury applied it by their verdict for the amount paid, with interest. Indeed, if the action had been for damages for fraud, the recovery would necessarily have been nominal, for the reason that the plaintiff gave no proof of such damages. Upon the plaintiff’s ■ theory, therefore, he could only recover from the actual recipients of his money. lie averred that these recipients were the four defendants, but he wholly failed to establish that averment. Ho confused the two theories,—damages for deceit, and moneys had and -received under a contract rescinded for fraud. The defendant Otto was not served, and has not appeared. The complaint was dismissed as to the Eastern Plaster-Board Company. That left the defendants the American Plaster-Board Company, a California corporation, and George W. Sessions. There was a verdict against both. Thus, the jury have found that both the corporation and the individual contracted with the plaintiff; that they both sold him fifty shares of the stock of the Eastern Plaster-Board Company; both made the false representations which are set out, and both received his money. This, of course, is senseless. There was no partnership or jpint relation between the two,—the corporation and the individual. There was in fact no evidence in the case to justify the submission of Sessions’ liability at all. He did not contract personally with the plaintiff. He acted throughout as the president of the defendant corporation. He was, it is true, the payee of the checks given for the price of the shares; hat he did not deposit these checks to his own credit, nor did he receive the money therefor. On the contrary, he indorsed these checks (one of them for §3,000, payable to his order as president), and turned them over to the treasurer of the Eastern Plaster-Board Company, which apparently was satisfactory to the American Company, the owner of the stock. The learned judge, in his charge, said, without exception or question from any one, that the money was paid to, or applied for the benefit, in some way, of, this American Company ; and the learned counsel for the respondent admits in his brief that the plaintiff’s money was paid and applied to the use of the American Company. At all events, these checks were received by Sessions for the American Plaster-Board Company, and as its president. They were given in payment for stock owned by this corporation, and sold by it through Sessions, as its president. And, further, Sessions also received, as part of the purchase price, the plaintiff’s note for $1,000, which he turned directly over to the American Plaster-Board Company; and that .company has held it ever since, together with the very shares in question, as collateral. It is clear that Sessions had no individual relation to this transaction, and that he was held upon some loose and inaccurate notion, coupling liability for deceit wi,th the liability which follows rescission. In other words, because of alleged misrepresentations, for which he might be liable in damages, he was held, upon rescission, to be liable for the purchase price; that is, for what his principal, and not'he, had received.

The judgment against Sessions must be reversed. That against the company should also bo reversed, for another reason. There was sufficient evidence with regard to the representations and their falsity to warrant the submission of the questions of fact upon that head to the jury. The evidence as to the plaintiff’s reliance upon the representations is, however, quite unsatisfactory. But there can be no doubt that the plaintiff failed to disaffirm the contract until long after he became fully acquainted with the facts upon which he ultimately predicated such disaffirmance. The rule is well settled that the right to disaffirm is waived when the defrauded party does any act which unequivocally treats the contract as. subsisting after the facts giving the right to rescind have come to his knowledge; as, for instance, when, after the discovery of the state of things, he takes an acti ve part in the affairs of the company. Pol. Cont. (Wald’s Notes) 537. The law requires the disaffirmance at the earliest practicable moment after the discovery of the cheat. Masson v. Bovet, 1 Denio, 69 ; Baird v. Mayor, etc., 96 N. Y. 598 ; Cobb v. Hatfield, 46 N. Y. 536. What were the facts here ? The plaintiff was the superintendent and general manager of the Eastern Plaster-Board Company. He entered into the service of this company on the 15th of September, 1890, and' he did not close the purchase of its shares until the 7th of the following November. He had the supervision of the manufacture, the ordering of and caring for material, the payment of labor, and the filling of orders. He had a foreman under him, and 125 employes. The company’s establishment covered about ten and a-half acres. <o£ ground. This employment was undoubtedly one of the main inducements to the stock investment. . The plaintiff exacted from the American Plaster-Board, Company an agreement to repurchase the shares in case he should lose such employment. Later, in March, 1891, he entered into a written agreement with the Eastern Company by which he was to have one per cent, of its net profits, in addition to his regular salary of $150 per month. He continued in the employ of the company until July, 1892. He admits that he “ gradually came to the conclusion,” about a year after the agreement whereby he became superintendent, that things were not altogether as they were represented. The truth is that he became thoroughly acquainted with the condition of the company and of its affairs. He even attended the meetings of stockholders, and there made important statements. It was long after he must have acquired full knowledge as to who these stockholders "were that he made up his mind to claim a return of his money. It is clear that he took his chances throughout, and that his disaffirmance came too late.

The judgment should be reversed, and a new trial ordered as to both defendants, with costs to each appellant to abide the event.

All concur.


author: -BROWN, P. J.

text:
    William H. Tilford, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York,Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’y 4, 1896.)

    1. Municipal corporation—New York City—Commissioner op public works.
    - To establish a municipal liability, the act complained of must he only within the scope of the power of the corporation conferred upon it by statute. If the act is committed outside of the authority and power of the corporation thus conferred, the corporation is not liable, though its officers may have expressly directed its performance.
    S. Same.
    Section 27, chapter 189 of 1893, does not confer upon the copimissioner ' of public works of the city of New York, as incidental to the preservation from pollution and defilement of the sources of the water supply of the city, the power to arrest or quarantine persons in order to prevent pollution of such supply.
    Appeal from a judgment dismissing complaint.
    Wm. Church Osborn, for app’lt; Theodore Connolly and Terrence Farley, for resp’t.
   -BROWN, P. J.

—The plaintiff alleged in his complaint that in May, 1893, his son, who resided with him on his farm at Lake Mahopac, in Putnam county, was ill with typhoid fever, and that during that month “the defendant, by its officers or representatives, entered upon said premises, in company with a deputy sheriff of Putnam county, and ordered the plaintiff to remain in the house, and placed said depnty sheriff in charge thereof, with orders to arrest the plaintiff or any of his family who attempted to leave the samethat the plaintiff was illegally restrained of his liberty for the period of twenty-one days, for which detention, and for the injuries sustained by reason thereof, a recovery is sought against the defendant.

It would serve no useful p.urpose to enter into a discussion of the distinction between the public and private powers of municipal corporations as affecting corporate liability, or attempt to point out the line of demarkation between these powers. The most recent expressions of judicial opinion upon that interesting question will be found in Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 148 N. Y. 46 ; Hughes v. Monroe Co., 147 id. 49 ; 69 St. Rep. 306; and Mayor, etc., of New York v. Workman, 14 C. C. A. 530; 67 Fed. 347. The rule of law which controls this case is that, to establish municipal liability, the act complained of must be one within the scope of the power of the corporation conferred upon it by statute. If the act complained of was committed outside of "the authority and power of the corporation thus conferred, the corporation is not liable, although the officers of the corporation may have expressly directed its performance, Smith v. City of Rochester, 76 N. Y. 506; Dill. Mun. Corp. (3d Ed.) §§ 968-996; Tied. Mun. Corp. 331a, 332, 333.

The plaintiff's case, if sustainable in law, must find its support in chapter 189, Laws 1893. For the purpose of construing that act, we assume, although the fact does not appear in the case, that the plaintiff’s farm lies within the territory usually designated as the “ Croton Watershed.” The question persented is, therefore, does the statute referred to confer upon the commissioner of public works of the city or New York, as incidental to .the preservation from pollution and defilement of the sources of the water supply of the city, the power to do such an act as the plaintiff complains of ? The section of the statute to which we are referred as a source of this power is as follows

“Sec. 27. The commissioner of public works of the city of New York is hereby authorized to take such measures as may be necessary to preserve from pollution and defilement all the sources of the water supply, whether the same be rivers or .other water courses, lakes, ponds or reservoirs situate in the counties of Westchester, Dutchess and Putnam, and to that end to enter in and upon, at any time within three years after the passage of this act, anjr or all lands near, on, adjacent or contiguous to any of the said sources of water supply, and to abate and remove the cause of an v such pollution or defilement.”

This section clearly confers no power to arrest or quarantine persons. It empowers the commissioner to enter upon lands, and abate and remove nuisances therefrom, but none to interfere with or restrain individuals living upon the property.

The act of which the plaintiff complains, and which forms the basis of the cause of action set forth in his complaint, was, therefore, one wholly outsids of any power conferred by law upon the commissioner of public works, and for it the city was not liable. The judgment must be affirmed, with costs.

All concur.


author: HATCH, J.

text:
    George W. Robertson, Resp’t, v. New York Press Company, Limited, et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 11, 1896.)

    1, Pleading—Complaint—Libel.
    In an action for libel, the complaint must allege with certainty that the publication of the alleged libel produced the resultant damage.
    2. Same.
    A complaint, which alleges “that, immediately after the publication of the matter complained of, an investigation “of all the matters contained in said publication,” was ordered, and that plaintiff was compelled to attend such investigation as a party, at great expense to himself, and that “such result was intended and comtemplated by said defendants when said defamatory matter was published by them,” does not allege that the pub-" lication caused the investigation.
    Appeal from an order denying defendant’s motion to strike out a, portion of the complaints
    DeLancey Nicoll, for app’lts; Charles T. Terry, for resp’t.
   HATCH, J.

—The action is libel. The complaint, by appropriate allegations, sets out the alleged libel, and seeks, by certain specific allegations, to show special damages sustained by reason thereof. As alleged in the complaint, the libel was published of and concerning plaintiff in his office as a state senator of this state. The specific allegation which is the subject of this appeal has in part been the subject of examination upon a motion to strike it from the original complaint. As therein alleged, it reads; .

“That, immediately after said publication was made, the senate of the state of New York, by formal resolution adopted in Open session, ordered an investigation of all the matters contained in said publication, which investigation continued during the period of nearly one month; and the details thereof were made the subject of much comment. And this plaintiff was obliged to employ, and did employ, counsel in his behalf to attend upon all the hearings of said investigation at gveat expense, and to personally devote a great deal of time to the gathering of evidence and personal attendance upon such investigation, to establish the falsity of all the matters suggested and charged by all the matrers of such publication by defendants.”

The court, at special term, granted the motion, and struck the allegation from the complaint. Thereupon plaintiff served an amended complaint, setting out the above matter in full, and adding thereto the following;

“That such result of the publication, as aforesaid, of the matters hereinbefore set forth, was intended and expected by the defendants herein, and contemplated by said defendants, when said defamatory matter was published by them.”

The present motion to strike out this allegation failed, and plaintiff, by this appeal, brings it to our attention. The learned court below held that the allegation was sufficient for the purpose of showing special damage, and was, therefore, a relevent allegation. This ruling was clearly at variance with the former decision, as the effect of that ruling was to hold the allegation irrelevent to the issue. The learned court upon the present motion stated: “The allegation, in connection therewith, * * * that the defendants intended to cause such a result, * * * is

harmless.” These decisions leave the matter in some confusion. According to the' former decision, the allegation was irrevelent, and was stricken out. According 4o the latter decision, the former allegation was relevent, and the amendment bad, though harmless. It is noticeable that, in the first pleading, there is no allegation that the investigation was in any way caused by the publication complained of. It might have been occasioned by many other considerations, with which the jjublication had nothing to do. The law does not hold a party responsible unless his act produced the injury. And the fact that the act produced the iujury must be alleged; otherwise, there is nothing to show any connection between the -two. Olmsted v. Miller, 1 Wend. 506 ; Beach v. Ranney, 2 Hill, 309. The precise question was before the supreme court in the Fifth department,, where this allegation of the complaint was held bad, and was stricken out. Raines v. Press Co. Sup.; not yet officially reported) 37 N. Y. Supp, 45. We do not think that the amendment has in any substantial manner changed the complaint in this respect. ‘ It still lacks the essential allegation that what was done was produced by defendants’ act. If, in fact, the publication was not the cause of the investigation, then no liability on account thereof attaches to defendants, without regard to what they contemplated or intended. As a rule of evidence, what was done and what followed may establish one as the sequence of the other; but, as a rule of pleading, the relation between the two, that the act produced the result, must bo averred with certainty. This allegation fails in that respect. It is therefore irrevelent to the issue, and should be stricken out.

Order appealed from should be reversed, and motion granted, with $10 costs and disbursements. All concur.


text:
    John Borgeson, Resp’t, v. United States Projectile Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 4, 1896.)

    1. Master and servant—Negltgenge—Question for jury.
    In this action, which was one hy a servant against his master for personal injuries, the question of contributory negligence was held to be for the jury.

      2. Same.
    In such case, whether the dangers were latent or were apparent to ordinary observation and discoverable by plaintiff in the exercise of proper care, is a question for the jury.
    3. Damages—Excessive. ,
    The judgment for $8,000, in this action for personal injuries, was held to be excessive and should be reduced to $5,000.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    William N. Dykman, for app’lt; Charles J. Patterson, for resp’t,
   HATCH, J.

— The action arises out of the relation of master and servant. Defendant, among other things, manufactured steel tubes, and employed in such manufacture a machine called an “hydraulic draw bench.” It has a cylinder, piston, and piston rod, working upon the same principle as a steam engine; the motive power being water under pressure, instead of steam. The stroke of the piston rod is horizontal, and extends -from the head of the cylinder to a die head—a distance of thirteen and one-half feet. At the outer end of the piston is a,cross head or ram, with jaws. The die head is stationary, and the tube is passed through the fixed die, the size of the tube depending upon the size of the die. The head of the piston rod comes in contact with the frame of the die, and there the jaws seize the piece of steel, and draw out the tube from the die. The pressure exerted by the machine is 2,500 pounds to the square inch. This pressure is applied upon one side or the other of the piston head inside the cylinder; and one side' forcing it forward, and the other side drawing it back. The pressure' of water in the cylinder is controlled by valves, and these valves are controlled by a small wheel near the die head, so situated, that the operator of the machine can control the application of the power with one hand, and adjust the jaws of the ram to the end of the tube with the other. Turning the wheel in one direction opens the inlet, and shuts the exhaust. Turning it in the other reverses the action, and, to close both inlet and exhaust, the wheel must be at an exact central point between the extremes. dSTo gauge is attached to show the point, and the operator requires the knowledge either through instruction or by experience. If the wheel is not stopped at the precise center, the piston rods will move in one direction or the other, the rapidity of the movement being dependent upon the pressure; but usually the movement is slow, as the wheel is near the center, and is scarcely perceptible. In the particular machine which is the present subject of examination, the testimony of plaintiff tended to establish that the machine was defective, caused by a leakage of water from the valves, which defect rendered dt impossible to center the valves and stop the motion of the piston rods. The defect had always existed, was not visible to ordinary inspection, and defendant had notice of. Prior to the 25th of January, 1894, plaintiff was employed at a machine in another part of defendant’s factory from where the hydraulic machine was situated, engaged in boring out holes in explosive shells. Qn the day before, he was directed by defendant to work upon the hydraulic machine, and began his service thereon on the 25th. He had not worked upon such a machine prior thereto, and was given no instructions with respect to how the machine worked, except that the foreman of the defendant operated the machine, and drew out one or more tubes, before plaintiff commenced, and then went away. No other instruction was imparted, and no notice of the defect in the machine was given; and plaintiff had no knowledge of its existence, from any source. He began work upon the machine at seven in the morning, and received an injury to his hand within two hours thereafter. The injury was received in this wise: Plaintiff had drawn five or six tubes, when he noticed that one was scratched. He called the forman’s attention to it. It was decided that the fault was in the die, and plaintiff was directed to remove the die, and take it to the machine room and have it polished. He adjusted the wheel to stop the machine,'and supposed that it was stopped. Whether the piston head was at the head of the machine when plaintiff left it is not clear, nor is it important here; for, wherever it was, only the closest observation could detect that it was in motion, and it is doubtful if its motion was apparent to the naked eye. Plaintiff procured the die to be polished and returned to the machine. When he returned the piston head was about midway between the head of the machine and the die. Plaintiff, with the assistance of one Reilly, a helper about the machine, proceeded to place the die in position. In doing this he held the die in with his left hand on the inside of the die head, while Reilly screwed in the die from the outside. While his hand was in this position, the piston head was stealing noiselessly upon in. Plaintiff says he first felt it upon his hand, then he tried to pdll it out, could not, called out', seized the wheel with his right hand, turned it in the wrong way, and his hand was crushed. While the evidence was in -many respects conflicting, and that upon essential features of the case, the foregoing statement must be regarded as full established by the evidence. The charge of court fairly submitted to the jury the question whether defendant was guilty of negligence in placing plaintiff at work upon the machine Without warning of the dangers which existed in its operation, without instructions as to the difficulty or impossibility of exactly centering the valves, and without notice of the fact that the piston rods would not remain stationary. In this regard the case is brought within the principle of the decision is Gates v. State, 128 N. Y. 221 ; 40 St. Rep. 87, which is controlling upon all the principal points presented by this record. Whether defendant was guilty of negligence which contributed to the injury; whether or not the dangers were open to ordinary observation, and discoverable by plaintiff in the exercise of proper care; or whether they were latent, and not apparent,—presented a question for the jury, and their finding thereon is conclusive.

A more serious question arises respecting the amount of the verdict. It was the left hand that was injured. The physicians who attended plaintiff testified' that the naiddle finger was amputed ; tliat he has only partial motion of the first and third fingers; that the joints are permanently stiff, the power- of the hand materially affected, and much pain attended the injury. His services were worth $25. Edward Miller, a physician called for the defendant, stated: That he examined the hand eleven weeks after the-injury, and found the middle finger of the left hand had been amputated at the junction of the hand with the finger, the first and third fingers had scars on the palms or surface, and the tendons which extend the fingers were partially contracted; but the bones were in good condition, and the fingers were not absolutely stiff, at the time. He could flex his fingers, and move them back and forth about half way. That continual motion of the fingers would have overcome the stiffness existing at the trial. Plaintiff testified that he had terrible pain for about two weeks, and for five weeks after he had his finger amputated ; that he has no pain in his hand now, except when he tries to straighten his fingers ; that he has continually tried the movement of his fingers since his injury. The thumb and little finger were not injured. He has been unable to work as before, and cannot use the hand to advantage. We have recently had occasion to state the rule which governs in this class of causes, and it would serve no useful purpose to restate it. De Wardener v. Railway Co. (Sup.) 37 N. Y. Supp. 133 (not officially reported). Applying that rule to the evidence in this case, we think the verdict excessive in amount. Murray v. Railroad Co., 47 Barb. 196 ; Coppins v. N. Y. C. & H. R. Railroad Co., 48 Hun, 292 ; 17 St. Rep. 916.

Our conclusion, therefore, is that the judgment and order appealed from be reversed, and a new trial ordered, unless plaintiff stipulates to reduce the judgment to the sum of $5,000; and, if, he so stipulates, then the judgment and order appealed from are affirmed, without costs to either party in this court.

All concur.


author: PATTERSON, J.

text:
    Helen Boetzkes, Resp’t, v. Manhattan Railway Company et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 14, 1896.)

    1. Elevated railroads—Abutters—Proof.
    In an action for damages resulting from the construction of an elevated railway in front of plaintiff’s premises, plaintiff is obliged to show either a decline in value of his property after the building of the elevated railway, or that his premises had not shared in the advance of values due to the growth and development of the city, participated in by neighboring properties off the line of the elevated railroad.
    2. Same.
    In such case, where plaintiff’s witnesses testify that the present value of the premises exceeds their highest value before the construction of the railway, and that since that time there has been an increase in the value of about 75 per cent., and there is no evidence, showing that the increase during the same time of like values off the line of railway, a judgment for plaintiff cannot be sustained.

      Appeal from a judgment in favor of plaintiff.
    G. T. Aldrich, for app’lts; E. M. Felt, for resp’t.
   PATTERSON, J.

—On the trial of this cause, the court, pnder the defendants’ objection, admitted testimony of one Phillip Gfombrecht respecting the change in rental values of premises belonging to him situated near the property of the plaintiff involved in this action. This testimony was of the same character as that condemned by the court of appeals in the recently decided case of Jamieson v. Railway Co., 147 N. Y 322 ; 69 St. Rep. 688. Even if this evidence is to be considered, the judgment of the court below cannot stand.

But we think that there is another ground in the record for the reversal of the judgment, and that arises in connection with the evidence respecting the fee value of the "premises in question. Substantially the whole issue as to fee value turned upon the testimony of expert witnesses. The plaintiff was obliged to show either a decline in value of his property after the building of the elevated railway, or that his premises had not shared in the advance of values due to the growth and development of the city, participated in by neighboring properties off the line of the elevated railroad. Two findings of fact were proposed by the defendants, and a request made that they be adopted,—one, that the value of -the premises in question was at least $20,000 greater than it was at the period of highest values prior to the building of the defendant’s railway; and the other, that the value of the plaintiff’s lots, excluding the buildings, was at least $40,000 greater than it was prior to the construction of defendant’s railway. If these facts had been found by the learned judge, it seems that they would have compelled a conclusion that there was no real damage to the fee. The testimony of the plaintiff’s professional witness is to the effect that there was an increase in the value of the plaintiff’s lots from 1877 to the present time of about seventy-five per ceiit. The elevated railroad was constructed and put into operation in the year 1878. The evidence does not show anything regarding the increase in values of property off the line of the elevated railroad since it was constructed on Third avenue. We think, therefore, as the case is now presented, the defendants were entitled to the findings of fact requested to be made, and that, had they been found, the result in the court below would have been different.

The judgment must be reversed, and a new trial ordered, with costs to abide the event.

All concur.


text:
    In the Matter of a Proceeding to Appraise the Property of Eugene A. Livingston, Deceased, under the Transfer Tax Act.

      (Supreme Court, Appellate Division, First Department,

      Filed February 21, 1896.)

    Tax—Transfer—Property subject.
    Where a will gives the residue of the estate, both real and personal, to the children of the testator, and empowers his executors, in their discretion, to pay mortgages on the real estate out of the personalty, the amount of the personalty subject to the transfer tax is not affected by the executors making such payment.
    Appeal from an order of the surrogate affirming an appraisement and determination of a transfer tax.
    Appeal by the executor of the estate of Eugene A. Livingston,, deceased, from an order of the surrogate’s court of New York county entered on the 8th day of January, 1896, affirming an order of said court entered the 19th day of November, 1894. The testator, a resident of this state, left a will, by the third clause of which he gives and devises all the rest and residue of his property, both real and personal, remaining after the payment of certain legacies contained in prior clauses, to his executors, upon certain trusts, for the benefit of four of his children. By the fourth clause, after the termination of these trusts, he devises and bequeaths all of said property to such of his five children as shall be-living, and to the issue of such as shall be dead. In a later part, of the will he empowers his executors, “ in their discretion,” to pay certain mortgages upon the real "property out of the personalty. This the executors did, the payment amounting to $52,297.96. The order appealed from, in assessing the transfer tax upon the residuary personal estate, makes no deduction for this payment, but assesses the tax upon the whole of said estate, of $67,283.40.
    David B. Ogden, for app’lt; Emmet R. Olcott, for resp’t.
   BARRETT, J.

—The learned surrogate, in declining to reduce-the personal estate as demanded by the appellant, acted upon the principle that the mortgage debt was, under the Revised Statute,, properly payable by the heir or devisee. Rev. St. pt. 2, c. 1, tit, 5, § 4. The appellant insists that the statute is inapplicable to-cases where the same persons take the realty and personalty as a blended fund. The contrary seems to us to be the correct view. Indeed, we think the statute is doubly applicable to such a case. Even the common-law rule would scarcely, under such circumstances, affect the statutory liability. Whether treated under the common-law rule, or under the statute, the practical question is, shall the heir or devisee satisfy the mortgage, or shall that burden be borne by others interested in the personalty? No such question can arise when the real and personal property are in the same hands. If the legatee chooses to apply his personalty to the satisfaction of the mortgage, he benefits his real estate pro tanto. He neither gains nor loses by its application or nonapplication. The payment of the mortgage would amount, substantially, to an investment of the personalty in the real estate. In Hepburn v. Hepburn, 2 Bradf. (Surr.) 75, the provisions of the will were somewhat similar to those in the case at bar. There the executrix had paid interest upon mortgages out of the principal of the estate. Surrogate Bradford, after referring to the statutory rule that real estate must bear its own burdens, and that the personal estate ■cannot be resorted to for the purpose of discharging bonds and mortgages, said:

“ But here the testator has thrown his whole property into one fund, and designed that his wife and son should receive the entire income for life. There is no strife between the two classes of property. The same parties are interested in both equally. The testator's intention would be answered by the payment of a mortgage on the real estate, if it were a good investment, or necessary for the preservation of the property, instead of an investment on bond and mortgage elsewhere.”

In the present case the executor was clothed with power, in his ■'discretion, to apply the personalty in satisfaction of the mortgages; in other words, discretion, to satisfy them as the statute declare they shall be satisfied, namely, out of the property of the devisee. It is immaterial whether that property came under the will, or was independent of it. The exercise of the power was, in effect, the same as though the two estates had been given directly to the objects of the testator's bounty, and they, at their pleasure, had utilized one of such estates for the relief of the other. This exercise of power was not the least analogous to that referred to in Re James, 144 N. Y. 6 ; 62 St. Rep. 855. There the executor exercised his discretion to pay legacies out of property in Great Britain. The court held that he had the right to do so, and that as the testator was domiciled in Great Britain, and as the property was out of our jurisdiction, the legacies could not be taxed here. The legacies we're not necessarily payable out of the property within our jurisdiction. The executor acted within the scope of his authority, in paying them out of nontaxable property; and the legatees were absolved because, under the will, they , neither received taxable property, nor derived any benefit therefrom. In the present case the testator was domiciled here, and the estate is here. The tax was imposed by the statute upon the “transfer” of the property. Laws 1892, c. 899, § 3. That transfer was effected by the death of the testator, and the tax became due and payable immediately. The subsequent act of the executor had no greater effect to reduce the taxable personalty than would the taking of the money by the beneficiary out of one pocket and putting it into the other. ■

The order-of the surrogate should be affirmed, with costs.

All concur.


author: INGRAHAM, J,

text:
    The People ex rel. Michael Maharin, App’lt, v. William Plimley, as Commissioner, etc., Resp’t.

      (Supreme Court, Appellate Division, First. Department,

      Filed February 7, 1896.)

    Municipal corporations—Clerks—Removal.
    By § 1664 of the Consolidation Act, the commissioner of jurors may at pleasure remove his assistants, clerks and messengers, without a hearing.

      Certiorari to review the action of the commissioner of jurors of the city of New York, dismissing relator from his position in said commissioner’s office,
    E. L. Mooney, for relator; T. E. Rush, for resp’t.
   INGRAHAM, J,

—The commissioner of jurors, although appointed by the mayor under section 106 of the consolidation act, is not the head of a department, within section 48 of that act. The office does not relate to the municipal government of the city of New York, is no part of the legislative or executive government of the city, and is in no sense, a department of the city government Section 48 of the consolidation act, upon which the relator relies, is a part of chapter"3 of the act. Chapter 2, is entitled, “Corporate Powers and Their Distribution.” And section 34, after providing0for the legislative and executive departments, enumerates the other departments of the city or New York of which the commissioner of jurors is not one. Chapter 3 is entitled, “General Provisions, Powers and Limitations Applicable to the Departments and Officers;” and section 48 is entitled, “The Heads of Departments; Control Over Subordinates; Removals.” It is clear that this section relates only to departments constituted by chapter 2. Tiiis distinction is recognized in section 106 of the consolidation act, which prescribes the duties of the mayor. His power to appoint the commissioner does not come under the power given to him to appoint the head of a department. He has, in addition to that power, the power to appoint the commissioner of jurors; and, by section 1664 of the consolidation act, the commissioner of jurors is given the express power from time to appoint, and at pleasure remove, his assistants, clerks, and messengers.

We think it clear, therefore, that the respondent had power to remove the relator at any time, at pleasure and without cause. The proceeding, therefore, must be dismissed, with $50 costs.

All concur.


author: PER CURIAM.

text:
    Lorenz Leopold, App’lt, v. Esther Hallheimer, Impleaded, etc., Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    Mortgages—Covenants.
    A covenant that the mortgage will become due and payable forthwith at the option of the mortgagee, if the mortgagor fails to pay taxes, etc., on the mortgaged premises, • is not abrogated by a written agreement extending the time for the payment of the mortgage debt.
    Appeal from a judgment dismissing the complaint.'
    Fernando Solinger, for app’lt; Max Hallheimer, for'resp’t
   PER CURIAM.

—This action was brought to foreclose a mort.gagé upon real estate, dated April 26, 1888, made by Esther Hallheimer tó Andrew Wils, to secure the payment of $1,000 one year after date, with interest payable halfyearly at the rate of five per cent, per annum. On May 4, 1862, the mortgage, and the accompanying bond were assigned to plaintiff, and on May 5, 1892, the plaintiff said Esther Hallheimer entered into an agreement in writing and under seal, which, among other things, .provided “that the period of payment of the said mortgage * * * be extended five years, and that the said mortgage shall not be due and payable until the first day of May, one thousand, eight hundred and ninety-seven;" and the said Esther Hallheimer further agreed to pay interest upon said mortgage at the rate of six per cent, per annum, payable halfyearly.'‘ The mortgage contained covenants upon the part of the mortgagor to pay taxes, assessments, and. water rates, and to keep the property insured against loss by fire, and to assign the policy to the, mortagee, as collateral security for the loan; and in default thereof the mortgagee was-authorized to make such payments, and when made by him the amounts paid were to become a part of the mortgage debt, and were to be due and payable immediately. The mortgage further provided that if the mortgagor should allow any assessments, annual taxes or water rates on such premises to - remain unpaid and in arrears for the space of three months after the same were confirmed, or refused to pay, on demand, to the mortgagee, any sum paid by him for taxes, etc., then the whole principal sum of the loan should, at the of option the mortgagee and his assigns, be and become due and payable immediately. The complaint in this action alleged that the mortgagor had failed to pay the annual water rates on said premises for the years from 1886 to 1893, inclusive, and certain taxes thereon for the years 1893 and 1894, and that more than three months had elapsed since the same had been confirmed, and that the plaintiff elected that the whole prin-' cipal sum of the mortgage should become due and payable. These facts so alleged were not denied, but the trial court found that the principal of said bond and mortgage did not become due until May 1, 1897, and dismissed the complaint. We are of the opinion that this conclusion cannot be sustained. The agreement made between the parties on May 5, 1892, did not, in terms, rescind the covenants in the mortgage relating to the payment of taxes and insurance, and there is nothing in its provisions which necessarily indicates that such was the intent of the parties. By the original terms of the mortgage, the principal sum was payable on April 26, 1889. But that provision was subject to the covenants in reference to the prompt payment of interest, taxes, and insurance, and was liable to be shortened by the mortgagor’s default in their performance. It is in entire harmony with the original contract, and with the usual stipulations of this class of securities, to construe the agreement as extending the time of payment of the principal sum until May 1, 1897, subject to the performance of the covenants contained in the mortgage; and we are unwilling to hold that such important conditions in the mortgage have been abrogated, in the absence of an express agreement, or a clear implication to that effect from the terms of the written contract.

The judgment must be reversed, and a new trial granted, with costs to abide the event.

All concur.


author: BROWN, P. J.

text:
    Fallkill National Bank of Poughkeepsie, Resp’t, v. Alexander W. Sleight et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’y 4, 1896.)

    1. Peincipal and surety—Release—Extending time op payment.
    The taking of a new security from the debtor without agreeing to give him time does not discharge a surety,
    8. Same.
    The fact that the collateral may not be enforceable until a definite time in the future, does not operate to extend the time of payment of the principal debt or suspend the right to sue upon the original security,
    3. Same.
    Where it has been held that the time of payment of the original debt has been extended by the receipt of collateral security, there has beeu an express or implied agreement to that effect.
    Appeal from a part of a judgment of foreclosure which adjudged the appellants liable for a deficiency,
    L. B. Sackett, for app’lts; Herrick & Losey, for resp’t.
   BROWN, P. J.

—This action was brought to foreclose a mortgage upon real estate given by one Henry T. Titus to the appellants to secure them as securities upon three several promissory notes made by said Titus, and held by the plaintiff, and which mortgage was by said appellants assigned to the plaintiff. The appellants appeal from that part of the judgment which adjudged them to be liable for such deficiency on the debt as might exist after a sale of the mortgaged premises. The defense pleaded was that the plaintiff had, without the appellants’ consent, extended the time of payment of the notes in suit for 30 days from the date of a certain chattel mortgage executed by said Henry P. Titus, and delivered to the plaintiff, and that such agreement discharged the appellants from their liability upon the notes in suit. The mortgage sought to be foreclosed was dated January 11, 1895, and was given to secure the payment of three notes, one of which bore date March 26, 1889, and the other two April 3, 1889, all being payable on demand, with interest. On the date aforesaid, the plaintiff was the holder of said three notes, upon which there was then unpaid $36,600, and also of an overdue note made by said Titus fpr $1,800, dated July 25, 1894, and payable four months after date. On that date, said Titus executed and delivered to the plaintiff a chattel mortgage, which after reciting his indebtedness as aforesaid, provided as follows: “Now for securing payment of the said first above-mentioned note [being the $1,800, note], or any renewal or renewals thereof, and in consideration of agreement to renew the same for thirty days, and also for securing payment of said last three above mentioned notes, after said first above-mentioned note, and any renewal or renewals thereof, shall be first paid or provided for, I do hereby sell, assign,” etc. “This mortgage is on the express condition that if the said Henry P. Titus * * * slial pay to the said Fallkill National Bank of Poughkeepsie eighteen hundred dollars, as conditioned in said first above-mentioned note, or any renewal or renewals thereof, and shall also pay'the sum of thirty-six thousand six hundred dollars, as conditioned in said last three above-mentioned notes, * * * then under this transfer to be void and of no effect.” The argument of the counsel for appellants is that the intent and purpose of the agreement contained in the chattel mortgage was to postpone the payment of three demand notes until 30 days after the date of the renewal of the $1,800 note. This conténtion cannot be sustained. The terms of the chattel mortgage fixed the order in which that security should be applied to the payment of the respective notes. It did no purport or alter terms of the demand notes, nor to postpone their payment until the maturity of the renewal of the $1,-800 note. The bank was left entirely free to sue upon the demand notes, or to avail itself of the security of the real-estate mortgage for their payment, and, in fact, this action was commenced before the expiration of thirty days from the date of the chattel mortgage. Had the appellants paid the original debt to the plaintiff, there was nothing in the terms of the chattel mortgage that would have prevented their immediately suing their principal therefor. The chattel mortgage was merely a new and additional collateral security for the payment of the three demanded notes ; and the rule is well settled that taking a new security from the debtor without agreeing to give him time does not discharge a surety. Wood v. Robinson, 22 N. Y. 564 ; Cary v. White, 52 id. 138. The fact that the collateral may not be enforceable until a definite time in the future does npt operate to extend the time of payment of the principal debt or suspend the right to sue upon the original security. U. S. v. Hodge, 6 How. 279. In all cases where it has been held that the time of payment of the original debt has been extended by the receipt of collateral security, there has been an express or implied agreement to that effect. Such were the cases of Place v. McIlvain, 38 N. Y. 96, and Hubbard v. Gurney, 64 N. Y. 457, cited by the appellants. In Kane v. Cortesy, 100 N. Y. 132, the only question discussed was whether the testimony conclusively established an agreement to extend the time of payment of the original debt. There is no question in the case before us but that the time for the payment of the $1,800 note was extended for thirty days, and that the note was to be paid out of the proceeds of the sale of the chattels mortgaged, before any of such proceeds could be applied to the payment of the three demand notes, but the testimony does not show that payment of the demand notes was to be postponed for any definite time, and the court’s finding to that 'effect has ample support in the evidence.

The judgment, so far as appealed from, must be affirmed, with costs.

All concur.


text:
    Catharine E. Davis, as Administratrix, etc., Resp’t, v. Staten Island Rapid Transit Railroad Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 4, 1896.)

    1. Master and servant—Rules.
    The rules; promulgated by a railroad company, must be such as, if faithfully observed, will give reasonable protection to the employes.
    3. Same.
    Where the proximate cause of the accident is not due to the failure of the company to make a proper rule, but to the neglect of a duty imposed by the company uj)on a conductor, the company is not liable.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Tracy, Boardman & Platt, for app’lt; George W. Miller, for resp’t.
   BROWN, P. J.

—The plaintiff recovered a verdict for damages for the-death oí her husband, Frank Davis, who was a conductor upon the defendant’s road, alleged to have been caused by the defendant’s negligence. The accident which caused the death of the deceased happened on October 22, 1893, near Tottenville, Staten Island, the southern terminus of the road. A train of cars in charge of a conductor, named Sherman, and two brakemen, named, respectively, Franklin and Abbott, arrived at the Tottenville station at about 3:15 p. m„ Conductor Sherman got off the train, and, the engine having been turned around, the train was taken back about one-half a mile, to a siding upon which it was to be placed. This siding was connected with the main track by a switch. Franklin, being on the rear car, got off and opened the switch, so as to allow the train to be backed upon the siding, and,, having done so, jumped upon the rear car, and went back with it Abbott was also upon the train, but neither he nor Franklin closed the switch, but went-away leaving it open. Conductor Sherman did not accompany the train, or go down to the switch, but remained upon the station platform. About an hour later, another train, of which the deceased was the conductor, approached the Tottenville station, and as it was customary, when some distance therefrom, the engine was cut lose from the train, to enable it to go ahead, and make a flying switch and pass onto a turntable, while the train following went to the station. After the engine was cut loose, and went some distance ahead of his train, the engineer discovered the open switch. He immediately-signaled for the brakes to be applied to the cars. Davis immediately went upon, the platform of one of the cars, and applied the brakes, but the engine and cars passed onto the siding, and col-tided with the train standing there, and, in the collision, Davis was killed.

That the immediate cause of the death of Davis was the neglect of a coemploye is not denied. The verdict, however, rests upon the proposition that the defendant had neglected to make and promulgate a proper rule as to whose duty it should be to open and close the switch. The court left it to the jury to determine whether a proper and sufficient rule, in respect to opening and closing switches, had been made and promulgated, to which the defendant excepted. A book of rules and regulations made by the defendant in 1887, and in force upon the road at the time of the accident, was produced and put in evidence upon the trial. These rules prescribed numerous duties for the conductors, among which was the following:

“(132) They must look after the switches used by their engines, as they will be held personally responsible for those used by their men. This rule applies to movements of engines in coming and going to engine houses before and after their runs.”

Conductor Sherman was called as a witness for the plaintiff and testified that he kneV of this rule; that, while he was in the em- * ploy of the defendant, his train frequently switched' from the main track to the siding, but that he never went to the switch to see that it was closed; that he left this duty to the brakeman, and never went to see whether they did it or not. We are of the opinion that, in making and promulgated rule 132, the defendant fulfilled its duty to its employes. The law imposes upon a railroad company the duty to make and promulgate sufficient rules and regulations for the conduct of its business in its ordinary run, and for any extraordinary occasions that may be reasonably .anticipated. Slater v. Jewett, 85 N. Y. 61. The rules must be such as, if faithfully observed, will give reasonable protection to the employes. Abel v. D. & H. C. Co., 103 N. Y. 581; 4 St. Rep. 269; Corcoran v. D., L. & W. R. R. Co., 126 N. Y. 673; 38 St. Rep. 251. Rule 132, if faithfully executed by the conductor, was ample to provide against such an accident as caused the death of Davis. It imposed upon conductors of trains the duty of looking after the switches. All that could be required from the company was that the rule should impose upon some of the employes the duty of seeing that the switches were closed. That is all that the respondent contends for. If the rule had provided, in the form suggested by the respondent’s counsel, that the person who opened the switch should close it, it would, in that form, have constituted no greater safeguard against danger than the rule in force. The duty would have rested on an individual, just as the present rule imposes it, and it could have been neglected and omitted with as much ease as it was neglected in the instance before us. The proximate cause of the accident was not due to the failure of the defendant to make a proper rule, but to the neglect of a duty imposed by the defendant upon Conductor Sherman. For this neglect the defendant was not liable.

The judgment must be reversed, and a new trial granted, with costs to abide the event. All concur.


author: CULLEN, J.

text:
    Jessie B. Ranken, Resp’t, v. William H. Janes, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed February 4, 1896.)

    Wills—Construction.
    Where a devise to a person is made with limitation over in case such person does not continue to live with testator, the limitation over is operative, though the first named person continues to live with testator, but the devise was procured by fraud.
    Appeal from a judgment on a verdict directed for the plaintiff.
    Louis O. Van Doren, for app’lt; Dailey, Bell & Crane, for resp’t.
   CULLEN, J.

—The action is brought under the provision of the Code to determine claims to real estate. The plaintiff and defendant both claim from one Eckford Webb, through the third clause of his will, which is as follows:

“ I give, devise, and bequeath to Miss Jessie Belknap Ranken, provided she remains with me up to the time of my decease, the house and lot known as ‘No. Seventy-Eight (78) Rush Street,’ in the Nineteenth ward of the city of Brooklyn, together with the sum of five thousand dollars, and all the pictures, piano, and household furniture remaining in said house at the time of my death; to have and to hold the same to her. her heirs, executors, administrators, and assigns, forever. The foregoing devise and bequest are made by me to the said Jessie Belknap Ranken out of respect for her, and her services and kindness to me, and with the expectation that she will remain with me as long as I live. If, however, the said Jessie Belknap Ranken shall not remain with me up to the time of my decease, then the said devise and bequest to her shall be void and of no effect; and in that case I give, devise, and bequeath said house and lot in Rush street, and said sum of five thousand dollars, to my nephew William H. Janes (son of my sister Abigail H. Janes); to have and to hold the same to him, his heirs, executors, administrators, and assigns, forever.” .

The defendant, in his answer, alleged that the provision in said clause in favor of the plaintiff was procured by fraud, circumvention, and undue influence, and claimed title in himself under the gift over. The defendant is not an heir at law of the deceased, nor, so far as the record in this case shows; would he have any title to the property in dispute, except under the clause of the will quoted. When the defendant entered upon his case the court ruled that, if it were shown that the provision in favor of the plaintiff was void, the gift over to the defendant could not take effect, because it was conceded that the plaintiff remained with the decased until the time of his death. This ruling rendered any proof on the part of the defendant unavailing, and hence he proceeded no further with his case. The correctness of the ruling presents the only question to be considered on this appeal.

We think that, under a proper construction of the will, in case the devise to the plaintiff failed for any reason, the substituted devise to the defendant took effect. This seems to be the rule laid down by a substantially unbroken line of authorities. 2 Jarm. Wills, 1642. The earliest reported case is that of Jones v. Westcomb, 1 Eq. Cas. Abr. 245. The testator, by his will, devised to his wife, for life, and, after her death, to the child with which she was then pregnant; and, if such child died before it came to the age of twenty-one, then there was a devise over.' . The testator was mistaken as to the condition of his wife. She was not pregnant. In that case it was held that the gift over took effect on the death of the wife. The king’s bench followed this decision. 2 Strange, 1092. In Statham v. Bell, Cowp. 40, the testator was in like error, — that his wife was with child, — and the devise over was to take effect on the death of such child. It was held that the devise over was operative, though, as matter of fact, the wife was not pregnant, and, of course, there was no such child. In Avelyn v. Ward, 1 Ves. Sr. 420, the testator devised hjs real estate to his brother, U., on the express condition that, within three months after his decease, IT. should execute, and deliver to the testator’s trustee, a general release of all demands which he might claim on the estate. But, if his brother should neglect to give such release, the said devise should be null and void, and in such case he devised the real estate to W. The testator’s brother died before the testator. It was held that the land should not go to the heir-at-law, but to the devisee over. In MacKinnon v. Sewell, 5 Sim. 78, affirmed, 2 Mylne & K. 202, the gift was of a more complicated character, but the principle involved was the same as that in the preceding cases. The chancellor, in discussing the doctrine of these cases, says:

“In other words, no real difference is made in the result,, for the event contemplated has not happened, but something equivalent has taken place; that is, something which made it impossible that the result could be otherwise than that upon which the executory limitation was made to depend. Almost all the cases are those of double contingencies, the second being of a negative nature, so that the first not happening amounts to the sarne thing as if both had happened.”

But the clearest statement of the rule is to be found in a case "where it was held the rule did not apply. In Lenox v. Lenox, 10 Sim. 400, the vice chancellor writes :

“In a case where the meaning of the testator clearly is that the ultimate limitation should take effect on the failure of a preceding gift, and that gift does fail, but the language in which the limitation over is expressed does not, in terms, apply to the event which has happened, then, in my opinion, the limitation over should take effect.”

We have found no case contravening this rule of construction. In the two cases cited by the learned counsel, for the respondent (Cruikshank v. Home for the Friendless, 113 Y. Y. 337 ; 22 St. Rep. 738 ; and In re Crossman, 113 N. Y. 503; 23 St. Rep. 259), we find nothing applicable to the question now under review. It follows that the ruling of the learned trial court was erroneous.

Judgment appealed from should be reversed3 and a new trial ordered; costs to abide event.

All concur.


author: BARTLETT, J.

text:
    Oliver W. Cook, App’lt, v. New Amsterdam Real Estate Association, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 11, 1896.)

    Judgment—Vacation.
    A judgment should not be lightly set aside, where the party against whom it runs has once had a fair and-full opportunity to contest the claim of his adversary and has practically conceded the validity of that claim by coming into court and allowing the judgment to be taken. So hold, whore the defendant’s counsel alleged that he allowed judgment of foreclosure to he taken because of a promise that the amount of the mortgage would be afterwards adjusted, where the alleged promise was not established by a preponderance of evidence, and no authority in the person making "the promise was shown, and the defense pleaded did not appear to be meritorious.
    Appeal from an order of the special term, vacating a judgment in. foreclosure and permitting the defendant to defend the action upon the answer already served, or another answer, if served within twenty days from the date of the order,
    Henry W. Smith, for app’lt; John H. Clapp, for resp’t.
   BARTLETT, J.

— This was an action to foreclose a mortgage for $10,000 made by the New Amsterdam Real-Estate Association to James W. Malcolm, and by him assigned to the plaintiff. The corporation answered, alleging that the mortgage was in reality security for only $5,000, of which $2,000 had been paid. The case was regularly brought to trial — the defendant association being represented in court by Mr. John H. Clapp, as its attorney ■—and the plaintiff obtained judgment of foreclosure and sale. This judgment has now been set aside by the special term upon, an affidavit of Mr. Clapp to the effect that he allowed judgment to be taken because Mr. Malcolm requested him to do so, and promised to see that the amount of the mortgage was properly adjusted afterwards at a sum much lower than the plaintiff’s claim. Mr. Malcolm positively denies having made any such agreement, and the alleged promise certainly was not established by a preponderance of evidence. .The defendant association had had its day in court. It failed to offer any proof in support of the defense it had set up, although its counsel had abundant opportunity to do so. The plaintiff proved the amount due, and took his decree in the regular arid ordinary course of procedure; and we are unable to perceive any good reason, in law, why he should be deprived of the benefit thereof simply because of something said by Mr. Malcolm to Mr. Clapp. It does not appear that Mr. Malcolm, even if he did make the statements attributed to him, had any authority, or assumed, to represent the plaintiff. Nor does it seem probable that the defense pleaded by the respondent is meritorious. The statements in support thereof in the moving affidavits are on information and belief, while the papers in opposition contain direct and positive averments of fact tending to show that the plaintiff is entitled to the full amount of the judgment. It is not clear what interest the New Amsterdam Real-Estate Association can have had to vacate this judgment, inasmuch as the property covered by the plaintiff’s "mortgage has been sold upon the foreclosure of subsequent mortgages. We do not think a judgment should be set aside lightly, where the party against whom it runs has once had a fair and full opportunity to contest the claim of his adversary, and has practically conceded the validity of that claim by coming into court and allowing the judgment to be taken. To warrant interference in such circumstances, it must be made plain that the moving party has suffered an injustice, and such does not seem to us to be the case here.

The order appealed from should be- reversed, with costs.

All concur.


author: INGAHAM, J.

text:
    The People ex rel. Jacob Simermeyer, App’lt, v. Theodore Roosevelt et al., as Police Commissioner, etc., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Municipal cobpobation—Policeman—Removal.
    A charge against a policeman for neglecting to make an arrest for a violation of the excise law was held, in this case, to be sustained by the evidence.
    Certiorari to review the action of the police commissioners of the city of New York, in dismissing the relator from the police force. • .
    Robert J. Robeson, for app’lt; Theodore Connolly for resp’ts.
   INGAHAM, J.

—The charge against the officer was neglect of duty, the specification being that the officer neglected and failed to make an arrest for violation of the excise law. The captain of the precint testified that on the morning of Sunday, July 28, 1895, he saw a woman going into a saloon at 247 West Sixtieth street, through the back door with a can. “I started to cross a lot, and I met a man on the outside watching. As soon as I got there I was informed that everything was tight; I could not. get in.” Subsequently the people that the captain had seen go in with the can came out. That afternoon the captain sent the relator in uniiform to this place. He (the captain) said: “This man (round here is doing business in that place. I have not only seen it, but I have reports from people that they are doing business there. I want you to stand there and prevent anybody going in.” An hour afterwards the captain went down to the place, and found the officer, instead of being where he was directed to stand, down on the corner. The officer said to the captain: “They have not done anything all day.” From where the officer stood when on duty in the building, he could see whether a person that went into the house went upstairs or whether hh went into the rear of the saloon. The captain’s orders to the officer were, if a person was going into the saloon, “to stick to him, and go in with him.” Dennett, the complainant, testified that, on this Sunday afternoon, he went to this place and stood in the doorway of the saloon a minute, and then he went in the back way; he was preceded into the place by a man with a tin pail, and was followed immediately afterwards by two others; that the officer stood at the hallway leading to the back door of the saloon; that he passed right by the officer and had a talk with him on his way in. The officer did not follow him. Dennett, while he stood talking to the officer, saw a woman, called his attention to her, and said, “Probably she is going after some beer.” Dennett then went into the saloon, and bought some whiskey. The officer swore he did not see Dennett, and saw no violation of the excise law while he was there; that, if any one went into the saloon while he was there, he followed him in.

The officer was stationed at this saloon to prevent a violation of the excise law. If he had followed each peison into the saloon, he could have made an arrest if there had been a violation of law. In disobeying his instructions, he failed to be present when the law was violated, and thus arrest the offender. It will not do for him to say that, if he had obeyed instructions of the captain, the proprietor of the saloon would not have violated the law. The commissioners were justified in finding that the law was violated", and that, in consequence of the relator’s neglecting to obey the instructions of his captain, he was not present at the time the offense was committed, and thus failed to make the arrest for its violation.

It follows, therefore, that, if the commissioners believed Den-nett and the police captain, they were justified in finding that the officer was guilty of neglect of duty, and the proceeding must be dismissed without costs.

All concur.