author: Barnard, P, J. :

text:
    In the Matter of the Application of the BROOKLYN, WINFIELD AND NEWTOWN RAILWAY COMPANY, Respondent, to Acquire the Right to Use and Run their Cars upon the Tracks of the Grand Street and Newtown Railroad Company of Brooklyn, Appellant.

      Railroad company — what is not a beginning to construct its road within chapter-775 of 1867 — Adjudication in proceedings to acquire land — -how far binding in other proceedings.

    A corporation, authorized, to construct a railroad upon certain streets and over a-certain route designated in its charter, leased to another corporation the right to use, maintain and operate a railroad upon a portion of such route, upon tracks to be laid down by the second company, with all the rights and franchises-of the first mentioned company, reserving to such first mentioned company the light to use the tracks to be laid upon a portion of such route upon paying a fixed compensation therefor. The second company thereafter built and operated a road upon the route described in the lease.

      Held, that the acts of the second company in so doing were not such a beginning of the construction of its mad by the first, as was required by section 2 of chapter1 775 of 1867, in order to preserve its corporate existence.
    The petitioner, claiming to be a corporation, instituted proceedings to acquire the right to use the tracks of another company, on the ground that such use was necessary for the purposes of its incorporation. In that proceeding it was decided that the petitioner had ceased to exist as a corporation, and the application was denied. Subsequently, the present proceedings were instituted to-acquire the right to use the track of another company for the same purposes.

      Held, that it was concluded by the former adjudication of its non-corporate-existence, and could not again raise that question.
    Appeal from an order made at Special Term, appointing commissioners to ascertain and appraise the compensation to be made to the Grand Street and Newtown Railroad Company, the -appellant, for the use of .its tracks by the Brooklyn, Winfield and New-town Railway Company, the respondent.
    The respondent was organized under the general railroad act, on the 3d day of February, 1869. Acts of the Legislature were passed in 1869 (chap. 718), in 1870 (chap. 612), in 1871 (chap. 622), and in 1872 (chap. 705), extending its route on and through various streets in the city of Brooklyn, and conferring certain rights and privileges upon it.
    By the second section of the act of 1871, it was provided that the said company should have the right to use the tracks of any other company, already laid on the route of the former ; and, in case of inability to agree, compensation was to be ascertained in the manner provided by law in the case of lands taken for railroad purposes.
    In July, 1877, proceedings were commenced by. the present respondent, under the second section of the act of 1871, above-cited, and section 14 of the general railroad act, for the appointment of commissioners to ascertain the compensation to be paid to the Broadway R. R. Co. for the use of its tracks on Broadway,,, which the present respondent then declared in its' petition to be-necessary for the purposes of its incorporation, and which constitutes a portion of the proposed route of the respondent. In this, petition there was no allegation that the company had begun the-construction of its road in any form. On behalf of the Broadway Company, it was urged that the Brooklyn, Winfield and Newtown Company had not begun the construction of its road within the* time and in the manner required by chapter 775 of 1867. In this proceeding, an order was made on the 17th day of September, 1877, appointing' commissioners, which was -appealed from and reversed by this court, December 10, 1877, upon which the-present respondent appealed to the Court of Appeals, which court, affirmed the decision of the General Term, upon the ground that-the petitioning company, not having begun the construction of its. road within five years, as required by the act of 1867, as extended by chapter 575 of 1874, its corporate existence and powers ceased, and there was, in fact, no corporation to acquire any right whatever. (Matter of Brooklyn, Winfield and Newtown R. R. Go.,. 72 N. Y., 245.)
    After this decision, the act of 1874 was amended by chapter 206 of 1878, extending the time to finish three years, so as to read, five years, bringing the time up to May 26, 1879. Then, proceedings were again taken in July, 1878, to obtain the use of the-tracks of the Broadway Company. The appointment was denied.at Special Term. The order of denial was affirmed at-General Term, on appeal by the present respondent, and alsoo by the Court of Appeals, on the former grounds, and also upon the ground that the corporation was dead, and that the act of 1878, extending its. time, was in contravention of the amendment of th¿s Constitution,, which took effect January 1, 1875, because it, in effect, created a new corporation.
    On the 27th day of January, 1879, the petitioner commenced the present proceeding to acquire the use of the tracks of the appellant. In its petition, the respondent averred a commencement of the construction of its road.
    Issue being joined on this allegation, testimony was taken by a referee,'by which it appeared that.in July, 1870, a contract was ■entered into by the Brooklyn, Winfield and Newtown Railroad ■Company with the trustees of another company, whereby the former ■company consented that the trustees might construct railroad -tracks on a portion of its route, and use such tracks exclusively for ninety-five years (the company’s existence being limited to ■ninety-nine), and have all the franchises of the company appertaining thereto, upon paying the compensation therein provided for, with á reservation of a portion of the route which the company might use upon paying $100 per year for it; the trustees agreed to form a company to be called the North Second and Middle Village Company, which was to have a lease of the portion •of the route on which the tracks were to be laid.
    In October, 1870, a lease was made by the Brooklyn, Winfield and Newtown Railroad Company to the North Second and Middle Village Company, in pursuance of the contract, ‘1 of the right to nse, maintain and operate a railroad upon the tracks now laid clown or to be laid down by the party of the second part, * * * together with all the rights, privileges and franchises.” In said lease it is mutually agreed “ that all the railroad tracks laid down in said streets, by said party of the second part, shall belong to and be taken away at the expiration of this lease by said party ■of the second part.”
    After this lease, the North Second and Middle Village Railroad ■Company built its tracks on the portion mentioned in the lease, expending of its own capital about $2,000 on that portion within -the city, and about $28,000 outside.

      Wm. Q. Be Witt, for the appellant.

      John H. Bergen and D. T. Walden, for the petitioner, respondent.
   Barnard, P, J. :

Assuming that tho Brooklyn, Winfield and Newtown Railway Company had the power to lease their franchise, as to a part of the route described in their charter which is not clear, I think this order should be reversed, for two reasons. In the first place, the lease was not a beginning of the construction of its road, within the spirit and meaning of the general railroad act. Tho petitioning company did not spend any of its money thereon, and did not own the tracks when completed. It simply granted the right to> another company to expend its money upon a portion of the route, such constructing company to own the superstructures. By the terms of the lease, the North Second and Middle Village Company were, hi no sense, the agents of the petitioner upon these proceedings. The right reserved by the petitioners V use the tracks when laid, for a fixed rent, does not affect the question.

The right was to use, not the road of this petitioner, but the road of the lessee.

In the second place, the former proceedings against the Broadway Railroad Company, and the decisions therein, establish finally that as to that company the petitioner’s charter was dead. This adjudication covers all things which were, and which might have been, litigated in those proceedings. No facts existing at the time of the institution of those proceedings can ever again be made the subject of judicial inquiry. If the petitioner’s charter is dead as to one part of its road, because when it commenced those proceedings it was not then a corporation, it is dead as to all parts of the route granted by its charter. If it had no power to take the Broadway road, it has no power to take the road in question, and for the same reason. The present defendant takes the fact established in those proceedings, although it was not a party thereto. (Fuller v. Van Geesen, 4 Hill, 171.)

The petitioner was a party, and was adjudicated to have no corporate existence.

Order reversed, with ten dollars costs and disbursements.

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

Order reversed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Barnard, P. J. :

license: Public Domain

text:
    EMILY M. CHAPMAN, Appellant, v. HENRY C. MORRILL, Respondent.

      ■Sale of chattels under execution — the notice need not describe the execution or give the name of the debtor — -2 JR S., 366, § 21.
    The notice of a sale of chattels under an execution, required to be given by section 21 of 2 R. S., 366, need not describe the execution, nor give the name of the judgment-debtor.
    Appeal from a judgment of the County Court of Queens county, entered upon the verdict of a jury in favor of the defendant.
    The action was brought in a justice’s court, in the county of Queens, to recover from the defendant the sum of $200, the alleged value of personal property converted by him.
    Upon the trial of the action in the justice’s court, before a jury, the plaintiff had a verdict for $175, and from the judgment entered therein, the defendant appealed to the County Court of Queens county.
    The action was retried in the county court, and the verdict of the jury was in favor of the defendant, and from the judgment •entered thereon, the plaintiff appealed to this court.
    The plaintiff makes tjtle to. the property in question, through a sale of the same by the sheriff of Queens county to her, under -and by virtue of an execution issued out of the county court, in which the plaintiff herein was judgment creditor, and one Stephen Cash was judgment debtor.,
    The property was sold under tne following notice, viz. :
    “ Sheriff’s Sale. — By virtue of an execution issued out of the County Court of Queens county, to me directed, I will sell, as the law directs, at public auction, on the 3d day of October, 1878, the following personal property, to wit:, 5,000 head of cabbage, two acres of field corn, one-half acre of sweet corn, one-half acre of turnips, one-fourth acre carrots, on the premises of Henry C. Morrill, at Manhasset, county of Queens, at eleven o’clock in the forenoon of that day.
    “BENJAMIN F. RUSHMORE,
    “ Sheriff of Queens County.

    “ Dated September 27, 1878.”

      W. J. Stanford, for the appellant.

      John Flemming, for the respondent.
   Barnard, P. J. :

The controversy in this case was as to ownership of personal property. The plaintiff recovered a judgment in the Queens County Court against one Stephen Cash. The. defendant, Cash, hired premises of the defendant, and at the time of the recovery of the judgment had growing crops thereon. The sheriff levied upon these crops on the 27th of September 1878. The defendant claims that he purchased the crops of Cash, the preceding •day, and that a bill of sale was given on the 27th of September, 1878. The plaintiff bought the property at a sale made by the sheriff, under the execution issued upon his judgment. In the notice of sale given by the sheriff, the execution under which the sheriff sold was not described. The notice was simply to the effect, that by virtue of an execution, the sheriff would sell certain described property therein mentioned, 5,000 head of cabbage, two acres of field corn, one-half acre sweet corn, one-half acre turnips, one-fourth acre of carrots, “ on the premises of Henry C. Morrill.”

I think the notice was a good legal notice of sale. The sheriff seized the goods of the defendant levied upon under the execution. The notice, the sheriff was required to give, is prescribed in 2 Revised Statutes, 290, section 21 [2d ed.], as follows :

“No sale of any goods or chattels shall be made by virtue of any execution, unless previous notice of such sale shall have been given for six days successively, by fastening up written or printed notices thereof, in three public places of the town, where such sale is to be had, specifying the time and place where the same is intended to be had.” No objection is made to the-notice, except that the name of the defendant in the execution is not given. The statute does not seem to require it. The notice is to be six •days ; it must describe the property to be sold under the execution, and it must state the time and place of the sale; all this was done. It was of no' importance to the public whether the execution debtor was named or not. The judge, therefore, erred in leaving to the jury the question whether the notice sufficiently described the execution under which the property was sold, and instructing them if it did not, that no title passed to plaintiff by his purchase at the sheriff’s sale.

The judgment should, therefore, be reversed, and a new trial granted in the county court, costs to abide event.

Dykman and Pratt, JJ., concurred.

Judgment reversed, new trial granted in county court, costs to abide event.


author: Barnard, P. J.:

text:
    ALFRED BARKLEY, Appellant, v. NELSON WILCOX, Respondent.

      Adjoining lots — surface water — right of owner of lower lot to improve and fill.
    The plaintiff and defendant owned adjoining village lots, that of the plaintiff being higher than that of defendant. No continuous stream ran from plaintiff’s lot upon that of the defendant; but in times of long rains, and when the snow melted rapidly, the water collected upon the defendant’s lot. After the plaintiff’ had built on his lot, the defendant built on his, using the earth excavated in so doing to fill up around the foundation of the 'building, thereby raising his lot, so that, in wet times, the water was thrown back upon the plaintiff’s lot, to the injury of his (plaintiff’s) building.
    In an action brought by the plaintiff to recover damages therefor, held, that as no water-course was shown to exist, the defendant might lawfully improve his own lot without regard to the effect of such improvement upon the building of his neighbor.
    Appeal from a judgment in favor of the defendant entered upon the report of a referee. The action was brought to recover damages for the obstruction of a water-course, and judgment was asked that defendant be required to remove certain obstructions made by him, and for a perpetual injunction. The referee reported in favor of the defendant, dismissing the complaint, without costs.

      O. E, Ouddebdck, for the appellant.

      J. M. Allerton, for the respondent.
   Barnard, P. J.:

The parties are adjoining owners of land. The plaintiff’s lot is higher than the defendant’s. There was no sufficient water shed to make a continuously running stream over the lot of defendant, but in time of long rains, and upon occasions when the snow melted rapidly, there was a stream formed upon the surface of defendant’s lot. The premises are village lots. The plaintiff built first upon his lot. When the defendant built he used the earth excavated from the cellar to fill up around the foundation of the house. This was judiciously done for the improvement of defendant’s lot. In consequence of this filling up, the ground of defendant’s lot was so raised that in wet times the water was thrown back upon plaintiff’s lot, causing a serious injury to his buildings. This case seems to fall within the principle decided by this court in Wagner v. The Long Island R. R. Co. (5 N. Y. Supt. Ct. Rep. [T. & C.], 163). There was no water-course proven. There was no running stream or regular channel with banks and sides. It was held that, as matter of law, there was no water-course, and that the court erred in leaving the question to the jury to determine the fact whether it was a water-course or not.

If there was no technical water-course, then it was lawful for defendant to improve his own lot without reference to the effect such improvement would have upon water running upon it in time of freshet and melting snow. (Phelps v. Nowlen, 72 N. Y., 39; Goodale v. Tuttle, 29 id., 459; Vanderwiele v. Taylor, 65 id., 341.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment affirmed, with costs.


author: Barnard, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CLARENCE T. BARRETT and the said CLARENCE. T. BARRETT, Appellants, v. DANIEL DEMPSEY, Respondent.

      Chapter 170 of 1862— superintendent of poor in Richmond county— vacancies in such office ■ — how filled.

    Chapter 170 of 1862, after providing for the election and classification of five superintendents of the poor, so that the term of office of one of them shall expire each year, directs that there shall annually, thereafter, be elected one person to fill the office of the superintendent, whose term expires on the first of January next ensuing. In the fall of 1873, one Heal was elected, but failed to file his bond. The supervisors, acting under chapter 498 of 1847, appointed one Neville to fill the vacancy. At the election in 1874, one Dempsey, was elected to fill the vacancy, on the assumption that Neville’s term then ceased. In 1878, at the election prior to January 1, 1879, at which latter time Heal’s term would have expired, the relator was elected to fill his place; Dempsey, claiming to hold for five years from the time of his election in 1874, refused to surrender the office.

      Held, that as the act of 1862 made no provision for filling any vacancy by an election, Neville’s appointment was good for the whol,e vacancy.
    That, in any event, Dempsey’s term ceased on the expiration of the term, to fill a vacancy in which he was elected.
    That the relator was entitled to the office.
    Appeal from a judgment, entered in this action, dismissing the plaintiffs complaint, and from an order setting aside and vacating a verdict iii favor of plaintiff, and ordering judgment in favor of .the defendant.
    This action was brought to try the title to the office of super,'intendent of the poor of the town of Castleton, in Richmond 'County.
    In November, 1873, one Nathan M. Heal was elected superintendent of the poor from Castleton for five years, commencing .January 1, 1874, ending January 1, 1879. He failed to file his bond, and the supervisors, assuming that a vacancy existed, appointed John S. Neville to the office for the vacancy.
    At the annual election in 1874, candidates for the office in question were voted for, and Daniel Dempsey, the defendant, was voted for to fill the supposed vacancy in Heal’s term, and was .declared elected “to fill such vacancy.”

      At the election in 1878, Barrett and Dempsey were candidates for the same office, and Barrett was elected.
    Dempsey, however, still retains the office, claiming that his election in 1874 was necessarily for a full term of five years, and -that the election in 1878 was null and void.
    The statute under which these questions arise is as follows (chapter 170, Law's of 1862): “There shall hereafter be five-
    .superintendents of the poor in the county of Richmond, instead of the number now provided by law, one of whom -shall reside in each of the towns of said county. They shall be divided into-five classes, of whom one shall hold his office for one year, one-for two, one for three, one for four, and one for five years, from the first day of January next.”
    (After providing for the selection ana classification of the-first elected, the statute continues as follows) :
    “And there shall annually thereafter-be elected one person to fill the office of the superintendent whose term expires on the first of January next ensuing, and who shall reside in the same-town.”

      A. Schoonmalcer, Jr., Attorney-General, and S. F. Fawson, for the appellants.

      T. G. Vermilye, Sr., for . the respondent.
   Barnard, P. J.

By the terms of the act, under which the superintendents of thu poor of the county of Richmond are elected, after, providing for -the election and classification of five superintendents, so that the term of office of one shall expire every year, it is provided thatthére shall thereafter be anuually elected one person to fill the office of the member retiring at the end of that year. (Chapter 170, Laws of 1862.) At the election, in the fall of 1873, one Heal was elected. He failed to file his bond. The supervisors appointed John S. Neville, under chapter 498, Laws of 1847. At the general election, in 1874, the defendant, Dempsey, was elected to fill the vacancy, upon the assumption that defendant only held the office during the vacancy : at the election in 1878, at which time Heal’s successor would have been elected if he had accepted the office, there was voted for, a superintendent of the poor for the full term, under a call from the office of secretary of State. At this election the relator was elected over the defendant. The question is, who holds this office ? Did Dempsey take a full term, although elected to fill a vacancy ; or was his election void even for the vacancy ?

The Law of 1862 does not provide for filling a vacancy by election. I think the relator is entitled to this office; he was. elected at the proper time, under the act of 1862. The act seems to have been based upon a rotation of one only of the-board in each year. If the defendant’s claim prevails that a vacancy may be filled for a now full term, it may happen that all will go out together. There is no power provided by law to fill a vacancy by the people, and without this power no election can be held. The difficulty in filling the vacancy has no relevancy as to. the. defendant, but, since writing the foregoing, our attention has been called to a recent decision of the Court of Appeals (People ex rel. Hatfield v. Comstock. MS. opinion), deciding that the constitutional inhibition (article 10, section 5) applies only to officers declared by the constitution to be elective, and that a superintendent of the poor is not of that’ class. It therefore follows that Neville’s appointment was good for the whole vacancy. The decision referred to further holds with us, that an election can only be held upon the falling in of, and for a full term.

Upon all the grounds, therefore, the court below was in error, and the judgment and order vacating the verdict must be reversed, and judgment ordered for the relator upon the verdict.

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

Order setting aside verdict for plaintiff and directing judgment for defendant reversed, and judgment ordered upon the verdict for plaintiff.

teh assignment. In the case at bar, the equities of the parties The referee has correctly found that the plaintiff, though a pur-


text:
    JEREMIAH ROBINSON and others, Respondents, v. GEORGE MARKS, Appellant.

      JOntry of judgment on acceptance of an offer — when it bars a recovery for claims set up in the complaint but not included in the offer or judgment— Code of Civil Procedure, § 73S.
    In 1877 the plaintiffs sued Silliman & Co. for §12,000 upon various drafts and notes made by that firm, among which was a note for §2,500, made by that firm to the .order of, and indorsed by, the defendant Marks, upon which plaintiffs claimed there had been paid but §122. Silliman & Co. answered, denying that anything was due to the plaintiff on the note, and averring that it was made and .•given to the plaintiffs as collateral to claims, which had subsequently been -paid. The firm also offered to allow judgment to be taken against them, under section 738 of the Code of Civil Procedure, for the amount claimed in the complaint, after deducting that note, which offer was accepted by the plaintiff, ■and judgment was entered accordingly. Subsequently the plaintiffs brought this action upon the same note against the defendant Marks, who had indorsed it.

      Jleld, that this action was barred by the judgment entered in the former action.
    Appeal from a judgment in favor of the plaintiff, entered upon 'the verdict of a jury, and from an order denying a motion for a mew trial made upon the minutes of the justice before whom the .action was tried.

      I. T. Williams, for the appellant.

      Samuel Boardman, for the respondents.
   Barnard, P. J.:

This case presents, so far as I have been able to discover, an entirely new question. The facts involved in the controversy are as follows : The plaintiffs, in 1877, brought an action against the firm of Silliman & Co., to recover about $12,000 for various notes and drafts made by that firm. Among these notes and drafts was described a note for $2,500, made by Silliman & Co., to the order of the defendant. The complaint averred that this note was wholly unpaid, except the sum of $122, part thereof, and .asks to recover for this note with the others, less this payment. .Silliman & Co. denied that plaintiffs had any claim upon this mote against them. They averred that the note was given by them to plaintiffs as collateral security for claims other than those-claimed by plaintiffs which had been paid Accompanying - their answer, Silliman & Co, made an offer , dgment to plaintiffs; under the Code of Civil Procedure, section.38, for the amount-claimed by plamtiffs in the complaint after educting this note-The plaintiffs accejrted this offer, and enter V judgment upon it, against Silliman & Co., for $11,222.27. T ^e present action is brought against Mark, the indorser of the note; and the-question is, whether the judgment . against Silliman & Co.,, under the circumstances under which it was recovered, bars; its recovery against the indorser. It seems to me that it. clearly does. If the claim against Silliman & Co. had been, submitted to a jury, and they had found against the plaintiffs . upon the issues raised as to the note in question, it would have-been a case where the judgment would have been conclusive-, as between plaintiffs and Silliman & Co., that the note was invalid that it was, in fact, paid; if Silliman & Co. were discharged,, being the makers, of course, Marks, the indorsee, could not behold, as he would be, in such a case, merely surety upon a paid, note. The Legislature could not have intended, by section 738, after an acceptance of the offer made by a defendant for a less; sum than the entire claim, that a plaintiff should be again permitted to sue for the rejected portion of the claim. The admission of the plamtiffs, by the acceptance of the offer, stands in the-place of a verdict of the jury upon the entire complaint. The complaint was never amended by striking out this clause, so that-the sum received in compromise included the whole number of causes of action described therein. If the plaintiffs cannot sue Silliman & Co., they cannot sue Mark upon this claim. The judgment recovered, which defendant put in evidence, was a complete defence to the defendant Mark.

The judgment should be reversed, and a new trial granted,, costs to abide event. •

Dr km an and Pratt, JJ., concurred.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


author: Pratt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS KELLY, Respondent, v. WILLIAM F. AITKEN, a Member of the Common Council of the City of Brooklyn, Appellant.

      Criminal contempt — what is not.

    On May 24, 1879, an order of the General Term was entered, affirming an order of the Special Term, directing a mandamus to issue to the common council of Brooklyn, requiring it to order a special election to fill a vacancy, caused by the acceptance by one- of its members of the office of representative in Congress. On May 26 a writ was served on all the members requiring them, “ at their next meeting, to order a special election.” At a meeting held that night a communication was received from the person whose seat had been adjudged vacant, stating that he had been advised by eminent counsel that the decision of the General Term was erroneous, and urging the common council to appeal to the Court of Appeals, and promising to refrain from acting pending such appeal. The corporation counsel also urged that an appeal should be taken, and stated that it would operate as a stay of proceedings under the writ. The common council then decided to appeal, and the notice thereof was served before the adjournment of that body, and the requisite undertaking filed and served on the following morning. On the application of the relator, the court, at Special Term, adjudged the respondent, one of the members of the common council, guilty of a criminal contempt, in adjourning without ordering the special election, and fined him §150.

      Held,, that under the circumstances the members of the common council were not guilty of a criminal contempt in adjourning without ordering the special election, and that the order should be reversed.
    Appeal from an order adjudging the appellant guilty of a criminal contempt, in willfully disobeying a peremptory writ of mandamus.

      William O. De Witt, for the appellant.

      Wm. M. Ivins and Roger A. Pryor, for the relator.
   Pratt, J.:

This is an appeal from an order adjudging appellant guilty of a criminal contempt, and imposing on him a fine of $150, for willfully disobeying a peremptory writ of mandamus directed to. the common council of the city of Brooklyn, of which appellant was 'a member, commanding them, forthwith, to order a special election to fill the vacancy caused by the acceptance, by one of the members, of the office of representative in Congress. The contempt proceedings were instituted pursuant to subdivision 3 of section 8 of the Code of Civil Procedure, which gives a Court of Record power to punish, for a criminal contempt, a person guilty of willful disobedience to its lawful mandate. The order directing the mandamus to issue was affirmed by the General Term, and service of the writ on all the members was completed on the 26th day of May, 1879, whereby they were required, “ at their next meeting, to order a special election,” etc. A meeting of the common council was held on the same day, immediately after the service of the writ, at which a communication was received from the person, whose seat had been adjudged vacated by the decision of the General Term, stating, in substance, that he was advised by eminent counsel that the decision of the General Term was erroneous ; that he desired that the question be settled by an appeal to the Court of Appeals, which could be heard in about a month, and urging the common council to take such appeal in his behalf, and promising, during the pendency thereof, to refrain from acting as a member of their body. At the same time a communication was received from the counsel to the corporation, urging the propriety and advisability of an appeal to the Court of Appeals, and ádvising that such appeal would operate as a stay of proceedings, and exempt them, during its pendency, from the force of the writ. A motion was, thereupon, adopted by the common council, directing such appeal, and the meeting adjourned without ordering the special election required.

The notice of the appeal from the order of the General Term was served by the counsel to the corporation on the same day, before the adjournment of the meeting, and the undertaking thereon was filed and served on the following morning. Thereupon the counsel for the relator obtained, from the justice at Special Term, an ex parte order, directing that an attachment, for a contempt for disobedience of said writ, issue against the members of the common council, returnaMe four days thereafter. An affidavit, made by the members of the board, disclaiming “ any attempt to commit a contempt,” etc, and setting forth, the foregoing facts, was read on the return of the attachment, and the learned justice, at Special Term, thereupon made and entered the order referred to above, from which this appeal is taken.

Proceedings to punish, for a. contempt of court, are of two kinds, each having a distinct object in view — the one to protect the rights of private parties, and the other to maintain the dignity of the court, and to punish people guilty of willful disobedience to its mandates.

In the former case, therefore, the purpose being to preserve private rights, it is immaterial whether the contempt complained of was designedly or negligently committed, the power and duty of the court to redress the wrongs and enforce and preserve the rights of the injured party are the same.

If, for instance, a person transfer property, or do any other act,' in disobedience of an injunction or other order, it can make no difference to the injured suitor whether it was done innocently or with evil intent. His loss is the same in either event, and proceedings to punish the offender, with a Anew of adjusting the rights of the parties, Avould look to indemnity only ; of course, if the disobedience was -willful, the court could, at the same time that it enforced indemnity, inflict punishment for a criminal contempt.

On the other hand, if the only purpose of the proceeding is to punish the offender and maintain the dignity of the court, the disobedience must be designed and willful, and hence the law terms this á criminal contempt. If, for example, one, after careful examination, Avrongly interpret, and, through this mistake, disobey an order, the majesty of the Irav is not offended, nor the dignity of the court impaired ; and, as he is innocent of willful -offence, the infliction of punishment could have no justification.

The willful disobedience, expressed in the statutej means conduct intentionally and designedly at variance with the mandate of the court. The disobedience need not be malicious, but it must be in pursuance of an intent to disregard the mandate of the violated order. The question, therefore, arises, Avas the appellant guilty of this offence ? Hid he willfully and designedly, within the meaning of the statute, disobey the writ of mandamus issued to the common council ? He, with the other members of the common council, was commanded to do a certain act. The official legal adviser of this body recommended an appeal to the Court, of Appeals, and advised that such appeal exempted them from the force of the writ during its pendency. The advice was correct ; there can be no doubt that the appeal, when perfected,, stayed the operation of the writ. (Code of Civil Procedure, § 1310 ; Thompson v. Blanchard, 2 N. Y., 561; Howe v. Seariny, 6 Bosw., 684.)

The appellant, in common with other members of the common council, acquiesced in the advice of the counsel to the corporation, and voted in favor of a motion directing that such appeal be' taken, and relying upon the advice previously received, that the writ was inoperative until the decision of the appeal, adjourned without ordering the election. This constitutes the whole alleged, offence. The appeal was taken with extraordinary expedition, the notice, as already stated, having been served before the meeting adjourned. If the corporation counsel had been equally swift-in filing and serving the undertaking, there could be no ground for pretence that a contempt had been committed : but, because, this was delayed a few 'hours after the meeting, the respondent’s, counsel insists that the appellant became guilty of a criminal contempt, and liable to fine and imprisonment therefor. We do not. think that the liberties of the people depend upon so slight or technical a foundation. If the appellant is guilty of the contempt charged, he is liable also to indictment therefor as a misdemeanor. (2 R. S., 279, § 15, and page 692, § 14.)

What chance would there be for a conviction under such indictment, upon the facts in this case ? The appeal from the order allowing the mandamus presented important, and to some extent, difficult questions for determination, and the common council were justified in seeking to have them settled by the Court of Appeals, particularly, as very little delay could result thereby,, and no injury ensue. The learned justice, at the Special Term,, erred in assuming that it was their duty to acquiesce in the previous decisions in- the matter. The statute furnishes a means of review, and it is the privilege of public bodies, as well as private litigants, to avail themselves thereof, and it is often their duty to do so. But if, in the discharge of this duty, they are to be coerced. into compliance -with the judgment sought to be reversed and subjected to punishment, notwithstanding that they have been zealous in their efforts to perfect the appeal, so as to avail themselves of the stay, which the law provides, then the remedy by appeal becomes-a farce, and the provisions for a stay, during its pendency, a mockery. In what respect was the appellant guilty of misconduct ? The law provided a method for the final' decision of the question at issue, and that upon taking the steps necessary to secure such decision, the judgment below would be suspended. The body, with which he was acting, directed these steps to be taken. Was it incumbent upon them to escape the commission of a misdemeanor, and a criminal contempt of court, to remain in session until their official counsel had taken all these steps ? The question implies its own answer. Having, in good faith, instructed the counsel to the corporation to take the appeal, the members of the common council were not .liable to punishment for failing to-execute the commands of the writ. They were entitled to a reasonable time, after-having determined to appeal, to prepare and serve the papers necessary to render it effectual. To hold otherwise, would be practically to deprive public bodies of the right to-appeal, in cases of this kind, and in effect to nullify the provisions of the statute permitting it. We are, therefore, of the opinion that the appellant did not willfully disobey the writ in question, within the meaning of the statute, and was not guilty of a criminal contempt.

It is unnecessary, therefore, to examine the other questions presented, which were urged by the counsel on both sides with great-ability and force. The order appealed from should be reversed,, with costs.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Orders adjudging appellant guilty of a contempt reversed,, with ten dollars costs of appeal and disbursements.


author: Pratt, J. :

text:
    MARY MONARQUE, Plaintiff, v. ELIZA MONARQUE and others, Defendants.

      Action for the consbt'uction of a will — jurisdiction of Supreme Court over, though not called on to exercise its equity pmoers — deeree of such cowrt binct- ■ ing, when no objection is made to its hearing the case.

    Tn 1864 one Monarque died, leaving a will, by which he devised certain real estate to his wife for life, and, on her death, to his four children, for their lives, and after their death to their respective children, in fee. In 1876 one of the •children of the testator brought an action in the Supreihe Court for the construction of the will, alleging certain portions thereof to be invalid. The widow, who was also the executrix, the other three children, and all the grandchildren, were parties, the adults appearing by attorneys and the infants by .guardians ad litem, duly appointed. In this action it was adjudged that certain portions of the will were invalid, and that the fee vested in the three children of the testator, subject to the life estate of the widow, and that the grand-children had no interest therein.
    ¿Subsequently the present action was brought to partition the real estate, the widow and children being made parties, but not the grand-children. Upon a motion to compel purchasers, who had bought at a sale under a decree herein, to complete their purchases, held, that the Supreme Court had jurisdiction of the action brought to procure a construction of the will.
    That as no objection was made to its hearing and deciding the same, the parties thereto, including the infant grand-children, were bound by the decree, even though it were erroneous, and whether the case was one in which a court of equity was called on to exercise its powers or not.
    That, as the grand-children were thereby adjudged to have no interest in the land, they were not necessary parties to an action for its partition.
    That the purchasers should be compelled to complete their purchase.
    Appeal from an order made at Special Term, compelling the purchasers at a sale had under a decree of partition herein to complete their purchases.
    Jeremiah H. Monarque died in 1864, leaving a widow, four daughters and several grand-children, and leaving a will which, in substance, purported to give his property, real and personal, to his widow, for life, after her death to his daughters for life, and after their deaths in fee to his grand-children.
    This will was duly admitted to probate, and in 1876 an action (Monarque, v. Requd) was commenced in the Supreme Court to .obtain a judicial construction of it by Mary Monarque, one of the daughters, who named as defendants the widow and executrix, the other surviving daughters and the grand-children, all of whom were properly brought before the court and appeared by attorney or guardians ad litem.

    The matter came on to be heard at Special Term, and a decree was made declaring the life estate in the widow valid, and the subsequent devises void, as against the statute of perpetuities, and adjudging the fee, upon and after the widow’s death, to descend to and vest in the heirs-at-law, to wit, the daughters.
    Adjudging, in effect, that the grand-children had no interest in the estate of the testator, whether real or personal.
    Subsequently, the widow conveyed an undivided third of her life estate to the said Mary Monarque, who shortly afterward commenced this suit to partition the premises described in the complaint, and left by her father, malting parties to it, besides mortgagees, the widow and her surviving sisters, but not the testator’s grand-children.
    The result was a deci’ee directing a sale. The sale was duly had, and the purchasers having refused to take title on the ground that the said grand-children should have been parties to this suit,, a motion was made to compel them to complete their purchases.From the order granting such motion, this appeal is taken.

      Geo. W. Zener, for the appellant, Daniel Maujer (purchaser).

      Max Brill, for the appellant, J. A. Goeller (purchaser).

      Geo. Thompson, for the appellant, S. W. ~Woolsey (purchaser).

      J. W. Ilawes, for the plaintiff respondent.
    The grand-children were neither necessary nor proper parties to this suit. The judgment in Monarque v Requa, cutting off their rights, never having been appealed from, is res adjudicata and conclusive on them, and cannot be questioned collaterally. (Blakely v. Oalder, 15 N. Y., 617 ; Howell v. Mills, 56 N. Y., 226 ; Be Forest v. Farley, 62 id., 628; Schaettler v. Gardiner, 47 id., 404; Ray v. Rowley, 1 Hun, 614 ; Hunt v. Hunt, 72 N. Y., 217.) The fact that there are infant parties makes no difference. (Blakely V. Colder,
      ■and Howell v. Mills, and Bosworth v. Vandewallcer, 53 N. Y., 597.) The court also had jurisdiction of the subject-matter of Monarque v. Requa. The cases cited by the purchasers are all those in which the court declined to take jurisdiction of the action because there was a remedy at law, and in which that objection was taken in time. But it is a well-known principle of equity that when that objection is not taken by demurrer or answer, it is waived, and the court has power and will go on and try the case. This objection was not taken in Monarque v. Requa: (Chapman v. Phoenix Hat. Bank, 5 Abb. [N. C.], 118 ; Lange v. Benedict, 73 N. Y., 12, at pp. 27 et seq.; Bangs v Duckinfield, 18 N. Y., •592; Matter of the Empire City Bank, 18 N. Y., 199; People v. Sturtevant, 9 N. Y., 263, at p. 269 ; JDe Bussierre v. Holladay, infra; Ludlow v Simond, 2 Caines Cases ; Bank of TJtica v. Mersereau, 3 Barb. Ch., 528, at pp. 574 and 575 ; Livingston v. Livingston, 4 Johns. Ch., 287. at p. 290 ; Underhill v. Van Cort■landt, 2 id., 339; Cox v. James, 45 N. Y., at p. 562; Creen v. Milbank, 3 Abb. [N. C.], at p. 149 ; Truscott v. King, 6 N. Y., at p. 165 ; Grandin v. Le Roy, 2 Paige, 509 ; Le Roy v. Platt, 4 id., 77 ; Bank of Utica v. City of Utica, 4 id., 399 ; 'Gumming v. Mayor, etc., of Brooklyn, 11 id., 596; Hawley v. Cramer, 4 Cow., 717 ■; Clarke v. Sawyer, 2 N. Y., 498 ; Post v. Hover, 33 id., at p, 602 ; Heath v. Hubbell, 6 Daly, 183; Roderigas v. East River Savings Institution, 63 N. Y., 460; Bolton v. Jacks, 6 Robt., at pp. 219 and 220.)
   Pratt, J. :

Aside from any technical question, whether the grand-children of Jeremiah Monarque are bound by the proceeding, in the case of Monarque v. Requa,- we think that the decision in that case was right , as to the construction of the will, and that their grand-children have no claim upon the property in question. (Colton v. Fox, 67 N. Y., 348.) That action, however, was in the Supreme Court, and if the court acquired jurisdiction of the parties and of the .subject-matter, the decision had the effect to cut off all right or claims of the grand-children to the premisés, and they were not .necessary parties to the partition suit in which the judgment was rendered under which the appellants purchased the property.

The general rules as to acquiring jurisdiction of the person apply as well to infant defendants as to adults.

In the suit first mentioned, all the parties appeared; the adults by attorney, the infants by a duly appointed guardian ad litem,, ■and answered upon the merits of the action.

That the court had jurisdiction of the subject-matter of the action for all purposes of this motion is also clear.

The judgment in the first suit was recovered in the Supreme Court, and could not be attacked collaterally when offered in evidence in the second suit. The intendment of law is, that a court of general jurisdiction has jurisdiction both of the subject-matter and person until the contrary appears.' The subject-matter of the suit was the construction and validity of a will; and even though a judgment may be erroneous, it is valid and binding until reversed on appeal.

That the Supreme Court had jurisdiction to adjudge concerning the questions involved cannot be doubted, but whether, upon the particular state of facts disclosed, a court of equity was called upon to exercise the power to adjudge, is a question we are not called upon to decide, as the parties submitted themselves without objection, and required the court to adjudicate upon the question presented. In the case of Clarke v. Sawyer (2 N. Y., 498), there was a bill filed by the heirs of a decedent to anull a will. In the Court of Appeals the point was raised, for the first time, that a Court of Chancery had not jurisdiction, upon the facts of the case, to declare the will void, but that the remedy was at law. The court says : “ It is true that a court of equity will not entertain jurisdiction to set aside a will of real estate for fraud, or on the ground of the testator’s incompetency, where there is a perfect remedy at law, and the objection to jurisdiction is taken in . due season ; but after litigating the question on the merits, without raising the objection in the two inferior courts, it is now too late to raise it here unless the Court of Chancery is wholly incompetent to grant the relief asked for, for the entire want of jurisdiction ” (for instance, if it was asked to pronounce sentence of death on a murderer). Where the parties have submitted themselves to jurisdiction of a court of equity without objection, as in this case, I have no doubt that court can adjudicate upon the question of the validity of a will of real or personal estate.” In Post v. Hover (33 N. Y., 602) the Court of Appeals affirms a judgment of the Supremo Court, adjudicating upon a will at the suit of heirs-at-law, although it intimates that the complaint should have been dismissed for want of equity, if the objection had been made in season. In the case of De Bussierre v. Holladay (4 Abb. [N. C.],) Van Vorst, J., says, at page 121: “ The term ‘jurisdiction,’ as used in relation to inquiries of this character, does not refer to the naked question of power, but rather to the fact that such power has or has not been usually exorcised.” If the complaint discloses a cause of action, the Court (Supreme), as now organized, has jurisdiction to try it and render a valid judgment thereon, whether the relief to be awarded bo equitable or legal, or both. We think the court had jurisdiction in the case of Monargue v. Requa, and that the decision was binding upon the infant defendants. This is in no way inconsistent Avith the decision in the case of Chipman et al. v. Montgomery (63 N. Y., 221). In that case the question was raised by timely objection as to the propriety of a .court of equity entertaining the action, and the Court of Appeals affirmed the judgment rendered below dismissing the complaint, with costs. The question whether, if the parties had submitted to the jurisdiction and tried the case upon the merits, the court, could render a valid judgment Avas not passed upon. In this opinion, the case of Bowers v. Smith (10 Paige, 193) is referred to with approval, and it is a leading case upon this question. At page 201 of that case the chancellor says : “ The defendants in their answers in this case have made no objection to the jurisdiction of the court, to declare the construction of the will, and if all those who are, or may be affected by the decision of the questions arising upon the various provisions therein contained were before the court, so as to make the decree valid, and effectual and binding upon their rights, it might be proper for me to proceed and settle the questions raised in the complainant’s bill.” It will be seen, therefore, that the decision in the case of Chipman v. Montgomery was not predicated upon a want of power in a court of equity, to entertain jurisdiction in such a case upon the consent of the parties, but upon a disinclination to exercise it in that case, it appearing that the plaintiff had a clear and adequate remedy at law. If those views are correct, it is not necessary to discuss the question whether, in the suit of Monarque v. Requa, the plaintiff had an adequate remedy at law. The appellants, also, claim that the decree in Monarque v. Requa, is fatally erroneous, because it does not contain a clause giving the infants a day, after they came of age, to show cause against it.

This was formerly the rule in chancery practice, but cases decided to be for the benefit of the infant do not come within the application of this rule, although in the main, the action be adverse to the infant.

The action was clearly for the benefit of all the parties to determine their respective rights under the will which was the subject of the action. In any view of the facts represented upon the motion, the appellants can sécure a good merchantable title to. the property in question under their bids, and must be held to perform their contract.

Order affirmed, with costs and disbursements.

present — Barnard P. J., and Pratt, J.;. Dykman, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


text:
    ELIZA McEWEN, Appellant, v. EUGENE A. BREWSTER, Executor, etc., of PETER NEAFIE, Deceased and others, Respondents.

      Income of fund held by executor — power of the party entitled thereto, to assign it — when it passes to a receiver appointed in supplementary proceedings had against such assignee.

    The plaintiff was entitled to receive the interest and income of certain property, held by the defendant, Brewster, as executor, during her life. One M. agreed to give the plaintiff' a home, and support, maintain and clothe her, in consideration of receiving the income to which she was entitled under the will; in pursuance of which agreement the plaintiff gave M. a power of attorney to-receive the income from the executor, which has never been revoked. The ¡ agreement was communicated to the executor and accepted and acted upon by him for at least eighteen years.

      an action by the receiver, appointed in supplementary proceedings instituted on a judgment recovered against M. to recover surplus income' in the hands of the executors, which had accumulated while the plaintiff was supported by M.r held, that the accrued income became the property of M. by virtue' of an equitable assignment and passed to his receiver.

      McEwen v. Brewstei• (17 Hun., 223), overruled.
    Appeal from a judgment directing the payriient of certain money by Eugene A. Brewster, as executor, entered upon the trial this action by the court without a jury.
    The justice found that about twenty years ago, Peter Neafie, resident of the town of Montgomery, died, leaving a last will and testament, which contained the following provision, to wit: That the executor should keep the proceeds of the testator’s personal estate invested during the lives of his wife, Margaret, and her sister, Eliza McEwen, and during the lifetime of the survivor of them, and pay over the interest and income thereof the said Margaret and Eliza, during their lives, in equal shares, and to the survivor during her life.
    That the plaintiff is the Eliza McEwen above mentioned, and the defendant, Eugene A. Brewster, is one of the executors named in said ' will, and now holds the fund derived from said personal property, amounting to $4,000, for the said uses and purposes, and that the widow, Margaret, died many years since.
    That the said Eliza McEwen is seventy-eight years of ‘age, and is a feeble person, and has no other source of income than under said will. That said provision was made by the said Peter Neafie, for her support and maintenance.
    That the plaintiff has boarded with one Newton B. Millspaugh for more than eighteen years past, under the following agreements : Millspaugh was to give her a home, furnish her with clothes and what she should need, and was to take the income under the will for his pay, and about the same time, to wit: on the 26th, day of December, 1859, the plaintiff executed to Millspaugh, a power of attorney, authorizing him to receive the income from the executor. This power of attorney was deposited with Mr. Brewster, the executor, and has not been revoked. The arrangement was communicated to the said executor, and he acquiesced in it, and from time to time paid over the income to said N. B. Millspaugh.

      That'at the time of the commencement of this action, the said plaintiff still resided with said Millspaugh, and he had, up to that-time, furnished and provided her maintenance and support as agreed, and had actually received, from the said executor, the said income, except the sum of $500, which still remains in the hands of the said Brewster, although said Millspaugh had demanded the same.
    That the said income was not any more than a just equivalent-for said maintenance.
    That one Caroline Millspaugh, the wife of said «Newton BMillspaugh, heretofore brought an action against Eliza McEwen, to recover for the same board and maintenance, which is herein-before mentioned as having been furnished by said Newton B. Millspaugh, and judgment upon an offer was entered for the same, and proceedings were had thereunder to reach the $500, in the hands of the defendant, Brewster, as property in hands of a third person belonging to the judgment debtor; an injunction was issued and served on the defendant, Brewster, which still remains in full force, and by an order dated March 17, 1877, the defendant, Harvey Weed, Jr., was duly appointed receiver of the debts, property, etc., of the said Eliza McEwen, and the defendant, Brewster, was therein restrained from making any disposition of property in his hands belonging to said Eliza McEwen. This-order was also served on the defendant, Brewster, and still remains-in full force.
    That such proceedings have heretofore been had in this couit, that by an order dated the 20th day of September,- 1876, the defendant, Samuel J. Parmenter, was appointed receiver of the -debts, property, etc., of the said Newton B. Millspaugh.
    The justice directed that judgment be entered directing the payment of the said sum of $500, less the costs of this action, to the said Parmenter, receiver, by the said defendant, Brewster, .and that the defendants, Brewster and Parmenter, be paid costs out of said fund.
    The case has already been before the General Term, being' reported in 17 Hun at page 223. With reference to this decision, Mr. Justice DykmaN said : “In the decision of this case, at the •General Term, the case of T'fmrber v. Chambers (66 N. Y., 42), was overlooked. The principles there laid down must control here, and the plaintiff cannot recover. She intended, by her contract with Millspaugh, that he should have the benefit of the provision in the will for her support, and the fund in the hand of the defendants belonged to him.
    The. plaintiff, therefore, cannot recover, but the fund must go to Pannenter as the receiver of Millspaugh.”

      Ohas. H. Winfield, for the appellant.

      Howard Thornton, for Pannenter, receiver, respondent.
   Pratt, J.:

The claim made by the defefendant, Pannenter, “that the plain-having agreed with Millspaugh that if he would furnish the board, clothing and all other necessary things, he should receive income for his pay ; such income being, in fact, no more than just equivalent; and that arrangement having been communicated to the trustee, and accepted by him, and acted upon for at least eighteen years, and Millspaugh having executed his part of the agreement, the income in question, all of which accrued during period that Millspaugh supported the plaintiff, must be regarded as having been actually applied to the support of the plaintiff, and as having been transferred to Millspaugh, in payment for such support,” seems to be well founded and decisive of this case. Millspaugh was not a party to the suit of Mrs. Millspaugh against the plaintiff, and it is no way affected by the judgment. It was the plain intent of the parties that Millspaugh should have the income as fast as it accrued. The plaintiff states: I have lived with Mr. Millspaugh, from the first till now, under the same agreement; he was to give me a home, furnish me with clothes, and what I should need, and he was to take the income under the will for his pay. In pursuance of this arrangement, the plaintiff executed a power of attorney to Millspaugh, authorizing him to receive the income from the executor as fast as it became due. This power of attorney has never been revoked, but has been acted upon until the commencement of this suit. There was no other means by which Millspaugh could be compensated for the support of the plaintiff, and upon it he relied while carrying out his part of the agreement. It was the province of the court to •effectuate the intention of the parties by holding that the accrued income was the property of Millspaugh, by virtue of an equitable assignment. It was not necessary there should be an assignment in writing. If it was the intent of the plaintiff that Millspaugh should have the income, and he had fairly earned it under the agreement, it was the duty of the court to give effect to such intention and enforce Millspaugh’s right. (Thurber v. Chambers, 66 N. Y., 42.) It was not an agreement to apply a particular fund to the payment of a particular debt; but the application was made as fast as anything became due to Millspaugh under the agreement. That the money was paid over to Millspaugh only at stated periods is not material. The money being the property of Millspaugh, it passed to his receiver.

Judgment affirmed with costs.

Present — Barnard, P. J., and Pratt, J., Dykman, J., not sitting.

Judgment affirmed, with costs.


author: BaeNard, P. J.:

text:
    THOMAS CREGIN, as Administrator, etc., of JAMES CREGIN, Deceased, Respondent, v. BROOKLYN CROSSTOWN RAILROAD COMPANY, Appellant.

      Action by a husband for the loss of his wife's services —what may be considered by the jury — what cause of action survives to the representatives of the husband.

    'This action, was brought by the plaintiff’s intestate to recover damages for the loss of the services of his wife, occasioned by an injury to her resulting from the defendant’s negligence. The original plaintiff having- died pending the suit, the action was revived by his administrator the present plaintiff.
    ÍTpon the trial, the judge charged that, in awarding damages, the jury might consider the loss sustained by the deceased, up to the time of his death, by the deprivation “ of regular attendance, services and comfort of his wife’s society.” Held, no error.
    Appeal from a judgment in favor of the plaintiff, entered ■upon the verdict of a jury.

      This action was brought in the City Court of Brooklyn by James Cregin, in his life-time, to recover damages for the loss of services of, and for medical attendance furnished to his wife, who, on the 21st day of August, 1875, was injured while in the act of getting off one of the defendant’s cars.
    On the 11th day of February, 1878, the said James Cregin died, and, upon proceedings taken to revive the action, it was continued-in the name of the administrator of Cregin, the‘present plaintiff.
    A trial before the Hon. A. McCue, judge of the City Court, and a jury, was had on the- 6th day of January, 1879, and a. verdict found for the plaintiff for $2,250, which -was set aside as a mistrial, on the grounds that said judge was co-exeoutor of an estate, owning' stock of the company defendant, and disqualified thereby.
    A second trial was had before the Hon. J. NeilsoN, Ch. J. of said City Court, and a jury, on the 17th day of February, 1879, and a verdict found for the plaintiff for $2,500, and on a motion for a new trial on the minutes, on the ground that the damages were excessive, the said verdict was set aside. An appeal was taken from the order granting this motion, to the General Term of the Supreme Court. The order of the City Court was reversed, and the verdict sustained by the General Term. (18 Hun, 368.) Judgment was then entered for the plaintiff, and this appeal was taken from such judgment.
    Upon the trial the court charged that the jury, in awarding damages, should confine themselves “ to what the husband suffered in respect to nursing, attendance, doctor’s bill, the-deprivation of ordinary affairs, of regular attendance, services, comfort of his wife’s society.” The defendant’s counsel objected to his submitting to the jury the question of damages “ for loss of services and comfort; so much of it as relates to comfort, as independent of services, I except to.”'
    Two of the judges of the City Court being disqualified, a certificate to that effect was made and filed, and the appeal thus-came before this conrt.

      Britton and Ely, for the appellant.

      J. Warren Lawton, for the respondent.
   BaeNard, P. J.:

As I understand the decision of the Court of Appeals in this case, the exception taken by the defendant, and argued upon this appeal; has no force. The court say : “ The wrong done in the present case is alleged in the complaint to have been a wrongful injury to the person of the plaintiff’s wife, whereby she was rendered permanently unable to attend to her household and other duties, and the plaintiff was obliged to expend sums of money in procuring medicine and necessaries, and employing physicians to treat her for her injuries, and that he had been and would be permanently deprived of her services and comfort.” This, we think, was a wrong done to the rights and interests of the husband. The court did not adopt the construction that pecuniary rights and interests only are protected by the statute ; but, arguing upon the assump-' tion that if that was the true construction of the act, observed that if the injury interfered with the personal comfort of the husband, that circumstance should not deprive representatives of their remedy for the pecuniary injuries which the husband sustained, and which diminished his estate. As an original question/ I am unable to find any basis for the exception. The plaintiffs are already entitled to damages for actual loss of service occasioned by the injury. Why not the loss occasioned between the personal service of a stranger and a wife, which is what I understand by the word “comfort,” in the charge? It is not the value of a hired nurse, however attentive and faithful, but the loss to the-husband of the services and the comfort derived therefrom of his wife. How can one be separated from the other in assessing damages to a husband for the loss of his wife’s services ?

The judgment should be affirmed with costs.

Gilbekt, J., concurred, Pratt, J., not sitting.

Judgment affirmed, with costs.

       75 N. Y., 193-195.


author: Pratt, J.: DykmaN, J.:

text:
    MARIA VAN RIPER, Respondent, v. JAMES E. BALDWIN, Appellant, Impleaded with JOSEPHINE N. HOMAN.

      Delivery of note by payee without indorsement — when it operates as an equitable assignment — assignee may sue in his own name

    The plaintiff Tented, certain premises «o one Homan, who, by the express direction of his, the lessee’s, wife, delivered to an agent of the plaintiff a note made by the defendant, Baldwin, to her order, to secure the payment of the rent to become due under the lease. The note was not indorsed by the wife at the time of its delivery. The rent not having been paid, and the wife having refused to indorse the note, the plaintiff brought this action to recover the amount thereof. Held, that the pledge of the note operated as 'an equitable assignment thereof to the plaintiff, and that he could sue thereon in his own name.
    Appeal from a judgment in favor of the plaintiff entered upon-the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom .the action was tried.
    In March, 1877, this plaintiff rented and gave possession to William A. Homan of certain premises owned by her, and located at Spring Valley, Rockland county, New York. The terms agreed upon were $1,000 per year, payable monthly in .advance. William A. Homan was in possession four months, and paid no rent. He furnished security, as agreed upon, for the payment of the rent, consisting of a promissory note, made by James E. Baldwin, for the sum of $500, bearing date January 19, 1870, payable one year from date,' with interest, to Josephine N. Homan, one of the defendants above named, and the wife of William A. Homan, the lessee. Mrs. Homan surrendered possession of the said note to a third person, an agent of the plaintiff, without indorsing the same, stating at the time that it was for the purpose of having it used as such security. Subsequently, the rent being unpaid, and she having refused to indorse the note, this action was brought to enforce the payment of the same.

      Win. R. Baldwin, for the appellant.

      Win. B. Slocum, for the respondent.
   Pratt, J.:

The verdict establishes the fact that Mr. Homan, by the express authority of his wife, delivered the promissory note, in controversy, to the plaintiff’s agent, to be used as security for the rent. Such delivery of the note constituted a formal pledge thereof for the purposes mentioned, and vested the equitable title thereto in the plaintiff, notwithstanding the note Avas payable to Mrs. Homan, and she Avithheld her indorsement thereof. (Taddiken v. Cantrell, 69 N. Y., 597.) By that pledge the plaintiff acquired a right, and it was her duty to collect the amount of the note from Mr. Baldwin, and she is liable to account to Mrs. Homan. (Wheeler v. Newbould, 16 N. Y., 392.) The rule requiring an equitable assignee to sue in the name of his assignor has been abrogated, and he is now expressly authorized to sue in his oavh name. (Code of Civil Procedure, § 449.) We think that the amendment allowed at the trial was quite proper.

These are all the questions which concern the defendant, Baldwin.

We think that they were properly disposed of at the circuit, and that the judgment should be affirmed.

DykmaN, J.:

The defendant’s motion for judgment on the pleadings was properly denied. The complaint states a cause of action against both defendants.

The defendant’s motion, at the close of plaintiff’s testimony to dismiss the complaint, was properly denied. There was matter for the jury then in evidence. There was proof that the delivery of the note Avas to secure rent, and that this rent was due and unpaid.

The exceptions to the admissions of testimony, one and all, are without force. None of the objections were well taken.

The exception to the. part of the charge “ did she deliver the note as security for rent ? if she did, whether she indorsed it or not, does not make any difference,” Avas not well taken. .

Delivery, as security, effected an assignment. The condition being fulfilled, an absolute title Avould vest.

This, if right, disposes of the next exception to the part. “I” say, if they credit his evidence, it was delivered to Hopper under this agreement. I think that it is a delivery to the plaintiff: Hopper was a mere custodian.

The next two exceptions assert, that to transfer negotiable-paper held by her, a married woman must charge its payment-upon her separate estate. This statement is sufficient answer.

Judgment and order denying motion on minutes for new trial,, affirmed with costs and disbursements.

Present — DvkMAN and Pratt, J., BarNard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: Dy'kmaN, J.: Pratt, J.:

text:
    In the Matter of the Laying Out, Opening and Extension of Livingston Street, in the VILLAGE OF RHINEBECK.

      County judge disqualified from acting ■ — proper mode of removing proceedings to Supreme Cowrt — Code of Civil Procedure, § 342.
    VTien a special proceeding is pending before a county court, the county judge whereof is disqualified from acting, he cannot make an order directing it to be continued before a justice of the Supreme Court, but should make and file with the county clerk a certificate of the fact of his disqualification.
    A proceeding pending in the county court cannot be continued before a justice of the Supreme Court, but must be removed into the Supreme Court.
    Appeal from an order made by Hon. J. P. Barnard, one of the justices of the Supreme Court, appointing commissioners to assess the damages claimed by the appellant for the taking of her land to open a street in the village of Rhinebeck. The proceedings Avere instituted under chapter 360 of 1867.

      W. iS. Jlevenor, for the appellant.

      jL Wager, for the trustees, respondent.
   Dy'kmaN, J.:

The trustees of the village of Rhiuobeck attempted to exercise the right of eminent domain, given to them by the village charter, “ to lay out, open and extend Livingston street.”

The proper notice was given that if claim for compensation was-made “the said trustees -would apply on the 30th day of June, 1879, to the County Court of Dutchess county, for the appointment of commissioners,” etc. The appellant -filed her claim for damage s. A special proceeding was thereupon pending in the County Court. By the charter, having given notice that they would apply to a court, the trustees might proceed before a judge thereof. But the sole record of the proceedings, on June thirtieth, is an order entitled “In Dutchess County Court,” commencing “ This matter coming on to be heard before this court.”

This is conclusive evidence that the application was to the county court, and not to the judge thereof.

The same order established that the county judge was disqualified, and proceeded : “ It is ordered that this matter of the appointment of commissioners, by reason of such disqualification of said county court, be and the same hereby is referred to Hon. J. F. BarNaed, justice of the Supreme Court, residing in said county of Dutchess.”

This did not effect a removal from the county court, and the subsequent proceedings were coram non judice.

A certificate of the disqualification should have been filed in the office of the clerk, and ijjso facto the proceeding would have been removed to the Supreme Court. (Code Civil Procedure, § 342.)

But on the theoiy that the application was to the judge, there Was no removal, still, the county judge must file the certificate of disqualification. The Supreme Court, if there Was a special county judge qualified, might, and if not, must have made an order-removing the case to the Supreme Court. (Code, § 342.)

Order appealed from reversed, with costs and disbursements.

Pratt, J.:

This proceeding was originally pending in the county court.. The county judge, otherwise than as he constituted the county court, had no power to entertain the proceeding, for the charter of the village required it to be taken before a court of record, and .such requirement is in conformity with a positive provision of the Constitution. (Laws 1867, chap. 360, § 25, Cons, art 1, § 7.) When it was shown that the county judge was incapable to act, he might have filed in the office'of the clerk a certificate of the fact, and that would have operated' to remove the proceedings into the Supreme Court; or the Supreme Court, on the application of either party, might order such removal. (Code of Civil Procedure, § 342.)

Neither of these courses was taken in this case. The county judge filed no certificate of his disqualification, nor was any order of removal made by the Supreme Court. If the order made by the county judge could be treated as a sufficient certificate, this case contains no evidence of the filing of it.

It is upon the filing of this certificate alone that the removal takes place.

This act, which is essential to confer jurisdiction, therefore is wanting.

Nor was the subsequent proceedings had in the Supreme Court, but before a justice out of court. That was unauthorized. The provisions of the Code of Civil Procedure are explicit on this subject. If the proceeding is pending before the county judge in a case like this, it maybe continued before a justice of the Supreme Court. If it is ponding in the county court it cannot, but must be removed into the Supreme Court. Inasmuch, therefore, as this proceeding was pending in the county court, and not before the county judge, the continuance of it before Mr. Justice Babnabd was illegal, and the order made by him is void. The omission of the appellant to object to the order of the county judge, referring the matter to Mr. Justice BarNÁkd, cannot be deemed á waiver of the defect of jurisdiction.

Under the charter of the village it is not necessary, in an application to appoint commissioners, to produce evidence of the determination of the. trustees to make a local improvement.

The notice of such determination, proof of publication thereof, and of the claim for damages, are all that is required. (Supra, § 25.)

The order appealed from must be reversed, with costs, but without prejudice to any further proceedings.

Present — Dyioian and Pratt, JJ., BarNard, P. J., not sitting.

Order reversed, without prejudice to application for new order*


author: Dykman, J.:

text:
    THOMAS CREGIN, Administrator, etc., of JAMES CREGIN, Deceased, Respondent, v. BROOKLYN CROSSTOWN RAILROAD COMPANY, Appellant.

      Trial before a judge disqualified by reason of Ms intei'est as a stockholder of the: defendant a corporation — the successful party, if successful on a new trial, entitled to costs of both.

    After this action had heen tried, and a verdict rendered for the plaintiff, and before entry of judgment it was discovered that the judge was disqualified, being-one of the executors of an estate holding stock in the defendant corporation. The action was retried before another judge, and the plaintiff again recovered a verdict.

      Held, that the plaintiff was entitled to tax costs for two trials.
    Appeal from an order denying a motion for a readjustment of costs.
    This action was tried before Hon. A. McCue, judge of the City Court of Brooklyn, and a jury, and a verdict was rendered for the plaintiff.
    Thereafter and before entry of judgment it.was discovered and decided that the said judge was disqualified from sitting, because of interest, under 2 R. S., 275, section 2, he being a co-executor of an estate holding stock in the defendant corporation, and another trial was thereupon had before another judge, on which a verdict was again rendered for plaintiff.
    The case having been meanwhile transferred to the Supreme Court, by certificate, of two judges of the City Court, of disqualification to sit at General Term, the county clerk of Kings county, under objection, taxed all the costs of said proceeding before Judge McCue, as though there had been a lawful trial. A motion in the nature of an appeal was made at Special Term, to disallow these items, which motion was denied, and this appeal is taken from the order entered thereon.

      Britton eg Ely, for the appellant.

      J. Wamn Lawlm, for the respondent.
   Dykman, J.:

The order appealed from should be affirmed.

The first trial was before a court having jurisdiction, and there was a verdict had.

The disqualification of the trial judge was an irregularity which prevented the entry of judgment, but it cannot deprive the suc■cessful party of his costs.

Order affirmed, with ten dollars costs and disbursements.

Present — Gilbert, and Dykman, JJ.

Order denying retaxation affirmed, with ten dollars costs and •disbursements.


author: Dykman, J. : Pratt, J. :

text:
    GERTRUDE B. MURRAY, Respondent, v. THE NEW YORK LIFE INSURANCE COMPANY, Appellant.

      Policy of life insurance — condition of, avoiding it if the assured should die while violating the law— construction of such condition when a question for the jury.

    In an action upon a policy of life insurance, it appeared that, in pursuance of a preconcerted scheme, the assured and his brother attacked one Berdell in a railway depot, the brother holding Berdell from behind, and the assured attacking him in front. During the struggle, Berdell drew a pistol, whereupon the assured jumped over a counter, and had run away some thirty-three feet, crying to his brother to hold Berdell, when the latter fired at him, and inflicted a fatal wound. The policy provided that it should become void if the person whose life was thereby insured “ shall die in, or in consequence of a duel or of the violation of the laws of any Nation, State or Province.”

      Seld, that the qriestion, whether or not the affray had actually terminated at the time the assured was shot, was properly left to the jury, and that a verdict in favor of the plaintiff would not be disturbed.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    This action was brought, to recover upon two policies of life insurance, issued by the appellant upon the life of the plaintiff’s husband, Wisner Murray, one for $5,000 and the other for $1,000.
    Each policy provided that “if the person whose life is hereby insured * * * shall die in, or in consequence of, a duel, or of the violation of the laws of any Nation, State or Province, * * * then, and in every such case, this policy shall bo null and void.”
    The death of the assured was caused by a pistol shot, fired by Robert H. Berdell, shortly after the said assured had assailed said Berdell with a cowhide, and afflicted several blows upon him.
    It was claimed on the trial, by the respondent, that the assured, when the mortal wound was inflicted upon him, had desisted from the assault, and had fled from the place of its commission, and that the shooting was not necessary for self-protection, or legally justifiable, bub was purely an act of revenge.
    On the other hand, the appellant claimed that the pistol was fired by Berdell during the actual continuance of the assault, or in such consequence of the act of the assured as, in legal contemplation, avoided the policy.
    JSvarts, Bouthmayd and Choate, for the appellant.

      Charles H. Winfield, for the respondent.
   Dykman, J. :

Plaintiffs husband’s life was insured by defendant, and this . action is brought to recover the amount of two policies.

He and his brother went to a railway depot and attacked a Mr. . Berdell. By a seemingly pre-arranged plan, the deceased was to do the beating, while his brother held Berdell. This was carried ..out; the deceased was striking Berdell, while his brother was behind and holding Berdoll’s arms. Berdell, while struggling to get free, drew a pistol. Upon this, the deceased ran, jumped over a counter in the depot, cryinghold him I and had put about thirty-three feet between him and Berdell, when Berdell discharged the pistol inflicting the fatal wound.

The defence was, that the circumstances of his death constituted a breach of a condition of the policies, as follows :

If the person whose life is hereby insured shall die in, or in oonsequenee of * * * the violation of the laws of any nation, State or province,” then the policy to be void.

The first exception is to the denial of the nonsuit. No grounds for the request are specified in the case. The facts stated above were in evidence and presented this question for the jury. Did the deceased run with intent to abandon the affray and flee the pistol in Berdoll’s hands, or to gain a now position to continue the fight ? This motion was properly denied-

The same answer is made to the exception to the refusal to charge “ that the affray in question was not over, while Spencer Murray held Mr. Berdell,” and “ that, on the facts in evidence, the plaintiff is not entitled to recover.”

The remaining exception is to the refusal to give the defendant the affirmative. We think the refusal right. The answer admits a contract of insurance, 'not as alleged however, but demands that proof of the terms and conditions of the contract be made by production and identification of the original policies. This put the plaintiff to proof, and gave him the affirmative.

Judgment and order denying motion for new trial on minutes affirmed, with costs and disbursements.

Pratt, J. :

The admission in the answer, of the making of the policy, was • not full enough to dispense with the production of it by the plaintiff upon the trial. The necessity of putting it in evidence, therefore, gave to the plaintiff the affirmative of the issue.

The remaining question, and one on which the case turns, is whether, at the time the shot which killed the assured was fired, the affray, in which he and his brother had been engaged with Mr. Berdell, had actually terminated. The evidence that a gross assault and battery were made by the assured and his brother upon Mr. Berdell, that the assured ivas the principal assailant, being aided in the commission of the offence by his brother,.and that a moment before the shot was fired, the assured had desisted from his offence, and had fled from the spot where it occurred, thirty-three feet distant therefrom, is uncontroverted. The evidence on the question whether the brother had also desisted from the offence, before the shot was fired, was contradictory. It was not error, therefore, to submit that question to the jury.

The circuit judge did so in an unexceptional manner. The verdict of the jury establishes the fact that the affray had ended when the shot was fired. That being the case, we think that the assured was not killed in, or in consequence of, the affray, according to the meaning which has been attributed to similar language in other cases. (Goetzman v. Ct. Life Ins. Co., 3 Hun, 512; Bradley v. Mutual Benefit Life Ins. Co., 45 N. Y., 422.) The provocation for the killing of the assured, no doubt, was extreme ; but if it fell short of affording a justification of the homicide, the death of the assured was not, in a legal point of view, the consequence of the violation of law committed by the assured.

Whether the circumstances were such as to justify the killing was, in any view that can be taken of the evidence, a question of fact to be determined by the jury. Their verdict is and ought to be conclusive, whatever our own opinion on the subject may be.

The judgment and order appealed from should,be affirmed.

Present — Dvicman and Pratt, J., Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: Gilbert, J. :

text:
    THE FISHKILL SAVINGS INSTITUTE, Respondent, v. HENRY BOSTWICK, Receiver of the National Bank of Fishkill, and the NATIONAL BANK OF FISHKILL, Appellants.

      Corporation — liability of, for tortious acts of its officers — when it is chargeable with their knowledge — what is a ratification of their acts

    The plaintiff and the National Bank of Fishkill occupied for their business purposes the same offices, and the business of plaintiff with its depositors was conducted through the latter. One Bartow was the cashier of the bank and treasurer of the plaintiff, and the active manager of both. Bartow, without the knowledge of the other officers of the bank, took from a safe deposit company in New York, certain securities belonging to the plaintiff, and pledged them to secure a loan of money borrowed for and applied to the use of the bank.
    In an action by the plaintiff, against the bank and its receiver, to recover for the conversion of the bonds held, that the bank was chargeable with the knowledge of its cashier as to the loan, and the means by which it was effected.
    That the reception of the money by it, and the application thereof to its uses, was a ratification of the acts of the cashier in borrowing it.
    That the plaintiff was entitled to recover.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This was an action • in trover, brought for the conversion of certain government bonds owned by the plaintiff.
    The Fishkill Savings Institute and the National Bank of Fish-kill occupied for their business purposes the same offices, and the business of the Savings Institute with its depositors was all conducted through the National Bank.
    The Savings Institute had a board of trustees and a president, and the National Bank had its board of directors and president; but the active manager and general agent of both was Alexander Bartow, who was the treasurer of the Savings Institute and cashier of the National Bank.
    In the autumn of 1873, the Savings Institute owned six United States bonds for $10,000 each, registered in thp name of the Savings Institute; and the trustees, in September of that year, in anticipation of demands to be made on their bank, passed a reso’lution authorizing their president and funding committee to pledge the bonds belonging to the Savings Institute to raise money •to pay depositors, if it should be found necessary. In March, 1874, the president of the Savings Institute did sign the blank transfers upon the back of the bonds, thereby practically rendering them transferrable by delivery, The emergency or necessity requiring the Savings Institute to sell or raise money on these bonds, and in preparation for which the resolution of September,. 1873, was passed, never occurred, and the bonds were never sold or used for raising money by or for the Savings Institute.
    In the spring of 1874, the National Bank of Fiskhill had business relations with the Merchants’ Exchange National Bank in the city of New York, and had become indebted to that bank in a considerable amount.
    In or about April of that year Bartow, without the knowledge of the trustees or president of the Savings Institute, and without the knowledge of the directors of the National Bank of Fishkill, took the bonds in question to the Merchants’ Exchange National Bank, .and pledged them with the last named bank as security for the indebtedness of the National Bank of Fishkill, upon the account between the two National Banks; and the bonds so remained pledged as security, as aforesaid, until July 31, 1874. On that day the amount due from the National Bank of Fishkill to the-'Merchants’ Exchange Bank was upwards of $60,000,' and a direct loan of that amount was then made by the latter bank to the former, and the bonds in question were pledged as collateral security for such loan. The proceeds of such loan was credited,
    • oh July 31, 1874, by the Merchants’ Exchange National Bank to the Fishkill National Bank, and went to pay up the indebtedness of the last named bank to the former.
    The bonds in question remained in possession of the Merchants’ Exchange National Bank, as security for the loan made by that bank to the National Bank of Fishkill, until about June 7, 1875, when the last of said loan was paid, and the bonds were taken by Bartow to the banking house of Wilmerding, Duer & Co., and pledged with that firm as security for the account of the National .Bank of Fishkill with them. Subsequently, the bonds were sold by ithem, and the proceeds applied on the account due from the bank.

      The National Bank of Fishkill failed about January 7, 1877,, and soon thereafter passed into the hands of a receiver.
    Before the commencement of this action, the plaintiff demanded, the bonds in question from the bank, and also from the receiver.

      G. Wheaton, for the appellants.

      William S. Uno, for the respondent.
   Gilbert, J. :

Upon the facts of this case, we have no doubt that the National Bank of Fishkill would bo liable in an action for money had and received for the sum which it received on account of the plaintiff’s bonds. Its liability in an action of trover for the conversion of the bonds is not so clear ; still an amendment, changing the action into one upon contract, cannot be made. (Code of Civ. Proc., § 723, 4 Wait’s Pr. 667.) The question then is, can the action of trover be maintained ?

A corporation is liable for the torts of its officers and agents, committed while acting within the scope of their employment, Or while engaged in performing the duties devolved upon them thereby. The law governing the relation of master and servant applies as well to corporations as to individuals. The circumstances, that would render a natural person liable for the torts of an agent, impose the same liability when the principal is a corporation. These principles are well settled, and very familiar. Difficulty in applying them sometimes arises from an uncertainty whether the act of the agent was within the scope of his employment. In order to bind a principal for a criminal act of his servant, there must be evidence of authority to do the particular act. The authority will not be inferred from the existence of any general power which is not comprehensive enough to embrace the specific act. On the contrary, the principal is entitled to the presumption in favor of innocence, as a shield against liability for crimes committed by his agent. But the principal may ratify the criminal act of his agent, and such ratification is equivalent to a •prior command. ,

In the case before us, the cashier of the defendant bank embezzled certain Uhited States bonds belonging to the plaintiff, and pledged them as security for moneys which he borrowed for said bank. Such embezzlement certainly was not within the authority, express or implied, of the cashier. Conceding that an .authority to borrow money for the bank may be implied from the nature of the cashier’s employment, and his acts done under it, yet an act of embezzlement is quite foreign to such an authority. The authority to borrow would embrace all necessary and proper means to accomplish that object; but the stealing of another’s securities, to pledge for that purpose, is not usual or proper, and .is not, therefore, within the authority conferred, but is an act altogether beyond the scope of the cashier’s employment.. If the case stopped here, no liability could be cast upon the bank. But the bank received the money borrowed, by means of the pledge of the bonds, and still retains such moneys. Such acts, we think, must operate as a ratification of the cashier’s embezzlement. It is true, indeed, that no one connected with the bank, except the •cashier, had any knowledge that the money so received had been •obtained by means of a pledge of the plaintiff’s bonds. Still the receiving of money was strictly within the scope of the cashier's •employment, and his knowledge will be imputed to the bank under the settled rule that notice to the agent is notice to the principal, if the agent' comes to the knowledge of the fact while he is acting for the principal, in the course of the transaction, which becomes the subject of the suit. (Bk. U. S. v. Davis, 2 Hill, 451 ; Holden v. N. Y. and Erie Bk., 72 N. Y., 286.) Nor can the bank retain the money in question, and repudiate the agency by which such money was obtained, for a principal will not be permitted to avow his agent’s negotiations as to part, and disavow as to the residue. (Hov. on Fraud, 144 ; Bolton v. Hillersden, 1 Ld. Ray., 224 ; Bennett v. Judson, 21 N. Y., 238 ; Elwell v. Chamberlin, 31 id., 611.) The set-off was properly rejected.

For the reasons stated, we think the judgment should be .affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.