text:
    Margaret O’Neill, Resp’t, v. The Dry Dock, East Broadway & Battery Railroad Co. and Theodore Westing, App’lts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    1. Negligence—Evidence.
    In an action to recover for injuries caused by a collision between a horse car and a truck, it is not error for plaintiff to show by a person who had been a car driver for years how long or within what space a car driver could stop a one horse car when the horse was on a moderate trot on level ground, or to show by a person who had driven trucks for years within what time and space a loaded truck could be stopped.
    3. Same.
    A medical witness need not be a specialist in order to be competent to testify in reply to a hypothetical question in relation to the cause of deafness in a given case.
    3. Same.
    In an action for such injuries brought against the railroad company and the truck owner, it is not error to rule out a question as to whether the truck driver was a careful driver.
    4. Same—Presumptions.
    The court properly refused to charge that in a collision of this kind the presumption of negligence is ordinarily against the driver of the wagon. As between the plaintiff .and the two defendants, there was no presumption of the kind.
    5. Same—Street railroads—Eight oe way.
    A street railroad company cannot rely on its right of way when by so doing injury would come to its passenger.
    6. Same—Damages.
    The court charged that pain and suffering were not limited merely to physical suffering, but extend to mental suffering and anguish. Neld, that this was not erroneous, as there was evidence that plaintiff did suffer mental anguish.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendants. Each of the defendants appeared separately and denied the negligence.

      John M. Scribner, for app’lt, The Dry Dock, East Broadway & Battery Railroad Company; Jacob F. Miller, for app’lt, Westing; G. Washbourne Smith, for resp’t.
   Truax, J.

The motions to dismiss the complaint were rightly denied.

There was evidence tending to show, and from which the jury could have inferred the negligence of each one of the defendants, and, therefore, the question of negligence was one for the jury and not for the court.

There were various exceptions to the admission or rejection of testimony. None of them were well taken. It was not error for the plaintiff to show by a person who had been a driver on a horse-car for years, how long, or within what space a driver on a car could stop a car which has one horse attached to it when the horse is on a moderate trot and the ground is level. Nor was it error to show by a person who had driven trucks for years, within what time and what space a loaded truck could be stopped.

The plaintiff contended that shortly after the accident she found that she was getting deaf in her left ear, and that that deafness continued up to the time of the trial.

A witness, a physician and surgeon, was asked after the assumed facts had been recited to him, to what he would attribute the deafness. The question was objected to by one of the defendants as incompetent, and by the other of the defendants on the ground that the witness had not made any examination of the head, and that he was not skilled in that department of medicine.

The last objection is semewhat indefinite. It is difficult to determine whether the objector meant that the witness was not skilled in the department of medicine relating to the head, or in the department of medicine relating to the hearing; but it is not necessary that the witness should have been a specialist in order to entitle him to testify upon the subject he was asked about. He is supposed to have enough knowledge of medicine and surgery to enable him to give testimony that would be entitled to some weight upon the question about which he was asked.-

The defendant Westing was asked if the driver through whose alleged negligence the accident was alleged to have happened was a careful driver, and this question was objected to and the objection was sustained.

This ruling was not erroneous. The question in dispute was not the negligence of Westing in keeping a servant known to him to be careless or incompetent. The contention was that the driver was negligent at this particular time, and this contention was not controverted by showing that up to that time he had not been negligent.

There were some other exceptions to evidence taken, but they are not material.

The defendant Westing requested the court to charge in a certain way. This the court declined to do. I do not find that there was any exception taken to this refusal, and therefore the question of alleged error in so declining cannot be considered.

The defendant, the Dry Dock, East Broadway & Battery Railroad Company, requested the court to charge that, in case of a collision between a street car and a truck or wagon, the presumption of negligence is ordinarily against the driver of the wagon, and the court declining to do so, duly excepted.

This ruling was not erroneous. As between the plaintiff and the two defendants there was no presumption of the kind. That one of the defendants was negligent whom the evidence showed to be negligent.

The defendant, the Dry Dock, East Broadway & Battery Railroad Company, also requested the court to charge that the car of the defendant, the Dry Dock, East Broadway & Battery Railroad Company, had the right of way, and that the driver of the truck owned by the defendant Westing was bound to respect the superior right of the defendant, the Dry Dock, East Broadway & Battery Railroad Company, to the use of so much of the street at the point or place in question covered, by the track or included within the rails of said defendant, and required by the passage of said defendant’s car, and the court declining so to charge, duty excepted.

This ruling was not erroneous. It is true that the courts have said that in some cases the car has the right of way, but never has it said so in a case of this kind. But, even if the car did have the right of way, it still was bound, as far as the plaintiff was concerned, to use at least ordinary care to protect her, its passenger, from harm. It cannot rely upon this right of way when by so doing injury would come to its passenger.

The court charged that pain and suffering are not limited merely to physical suffering, but they extend to mental suffering and anguish, and to this the defendants excepted.

We do not think that this ruling was erroneous. There was evidence that tended to show that the plaintiff did suffer mental anguish. She had two teeth knocked out and two broken. She was badly bruised on the left shoulder, left side, left hip, and on the mouth. She suffered terrible pain for four months in her head, and had not up to the time of the trial been able to sleep more than an hour at a time, and -had been in a very nervous condition. She was easily frightened, and always imagined that there was some one coming after her.

This tended to show that she did suffer mentally.

The judgment and order appealed from are affirmed, with costs. Dugbo, J., concurs.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    In the Matter of the Estate of Jacob Straut, Deceased.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Executors and administrators — Application for accounting— When properly denied by reason of former adjudication in SUPREME COURT.
    It is proper for a surrogate to deny an application for a decree requiring an executor to judicially settle his account and pay the petitioner his share of the estate, where it appears that long prior to the filing of the petition an action had been brought by the trustees under the will of the deceased against the executor, for the benefit of the person under whom the petitioner claimed, among others, and that said person being represented in the action a judgment had been entered dismissing the complaint upon the merits.
    S. Same.
    In the absence of any proof it must be assumed that that litigation involved everything alleged in the complaint, and that the adjudication covered the whole ground of the complaint, and that as against the plaintiffs in that action it was a final adjudication that there was nothing due from the executor to the estate or the trustees thereof.
    In December, 1887, Francis M. Hopper presented his verified petition to the surrogate of the county of New York, in which he alleged that Jacob Straut, late of the city of New York, died on the Gth'clay of April, 1857, leaving a last will and testament, which was duly proved and admitted to probate on the 9th day of September thereafter ; that in the will Edward J. Straut, Isaac Onderdonk and Jacob Cooper were appointed executors and trustees; that Cooper renounced and never qualified as such, and Onderdonk and Straut duly qualified and letters testamentary were issued to them by the surrogate on the 9th day of September; that they thereupon entered upon the discharge of their duties as trustees and executors and so continued until the death of Onderdonk in August, 1870 ; that thereafter Edward J. Straut. continued to administer the estate as sole surviving executor until his death, and as such came into possession of all the assets of the .estate; that Edward J. Straut died in the county of Rockland on the 10th day of September, 1881, leaving a last will whereby, among other things, Garret Z. Snider was made sole executor thereof; that that will was, on the 17th day of October, 1881, proved and admitted to probate in the surrogate’s court of Rockland county, and letters testamentary thereon were granted and issued to Snider, who entered upon the discharge of his duties as such executor; that no account of the proceedings of the executors of Jacob Straut has ever been rendered by them or any of them, or by .Snider as executor of Edward J. Straut; that an inventory of the personal estate of Jacob Straut was filed in the office of the surrogate of New York county on the 14th day of September, 1857, showing personalty of an aggregate appraised value of $6,300 and of the actual value of $9,105, but, as he was informed and believed, other property applicable to the uses of the trusts created by the will of Jacob Straut of the value of many thousand dollars came into the hands of Edward J. Straut as sole surviving executor, and after his death into the hands of his executor Snider; that bo account of such property and no inventory thereof has ever been made or filed by any one; that in and by the will of Jacob Straut he devised and bequeathed to his executors and trustees one-seventh part of all his real and personal estate in trust to pay to his daughter Maria the income thereof annually, and after her death to her children and heirs, share and share alike, as the law directs in intestate’s estates ; that Maria Straut married Jacob A. Hopper and died in 1883, and that during their coverture she had children, Elizabeth who intermarried with Peter Rutón and died in 1878, leaving her surviving and now living of full age Joseph H. Rutón, her only issue, and the petitioner and Jacob H. Hopper, both of full age and residing in the city of New York; and he prayed that a decree be made requiring Garret Z. Snider, as executor of Edward J. Straut, deceased, to render and judicially settle an account of the proceedings of Edward J. Straut as executor and trustee, under the last will and testament of Jacob Straut, deceased, and to pay to the petitioner his share of the estate, and that Garrett Z. Snider be cited to show cause why he should not pay such share.
    Snider, as executor of Edward J. Straut, appeared and answered the petition of Hopper, and in his verified answer denied any knowledge or information sufficient to form a belief whether Edward J. Straut, as sole surviving executor, came into possession of all the assets belonging to the estate of Jacob Straut, and whether no account of the proceedings of the executors of Jacob Straut had ever been rendered by them or either of them, and he denied that no account of the proceedings had ever been rendered by him as executor of Edward J. Straut, as stated in the petition ; he alleged that he had duly rendered an account of his proceedings as executor of Edward J. Straut to the surrogate of Rockland county, and he denied any knowledge or infoimation sufficient to form a belief as to what the value of the personally of Jacob Straut was, or is, or that it came into the possession of Edward J. Straut and as to what, if any, other property came into the hands of Edward J. Straut as such sole surviving executor, and denied that after the death of Edward J. Straut any property of Jacob Straut, or of his estate, came into his hands as executor of Edward J. Straut, or otherwise; he alleged on information and belief, that prior to the death of Edward J. Straut, Jacob H. Conklin and Jacob A. Hopper of the city of New York were appointed trustees under the will of Jacob Straut, by the supreme court, and that they duly entered upon the discharge of their duties as such, and have ever since continued to act as such; that after their appointment Edward J. Stout exercised no control over the estate of Jacob Straut and discharged none of the duties as executor or trustee thereof; that upon the application for the appointment of the trustees, or soon thereafter, Edward J. Straut was enjoined from acting as such; that upon the appointment of the trustees all the assets of the estate of Jacob Stout, in the hands of Edward J. Straut or otherwise, came into the possession, of the new trustees, and have ever since remained in their hands and under their control; that heretofore an action was brought in the supreme court of this state by the new trustees against him as executor of Edward J. Straut, in which Maria, the wife of Jacob A. Hopper, named in the petition, and all others interested in the estate of Jacob Straut were made defendants, and the complaint in that action is annexed to the answer; that in that action Maria Hopper and some of the other defendants, including him, Snider, as executor, interposed answers; that the issues raised by such answers were by order of the court referred to a referee to hear and determine, and a trial was had before such referee in which Maria Hopper, by her counsel, participated; that upon the decision and report of the referee, and proceedings thereupon, judgment was duly entered, from which an appeal was taken to the general term, and from the judgment and decision of that court an appeal was taken to the court of appeals, and the judgment directed by the court of appeals in accordance with its decision is made a part of the answer and a copy thereof is annexed to it; that all of the orders, judgment and the papers and records of the proceedings thereupon are duly filed and entered in the office of the clerk of the county of Kings; that, as respondent is informed and believes, all notices and papers and copies of the judgment were duly served on the attorney for Maria Hopper, and that in that action the plaintiffs as trustees represented,, among others, the petitioner and his interest in the estate of Jacob Straut, and it was brought for their benefit and at their instance; that all the rights of Maria Hopper and all persons who could claim under her, including the petitioner, in the estate of Jacob Straut, so far as the same had come into the hands of Edward J. Straut, and all claims against the latter as executor or trustee, or against the respondent as executor, were determined, and Maria Hopper was and the petitioner is forever barred from making any claim against the respondent or his testator or his estate by such former adjudication ; that the petitioner has no claim to any share of the estate of Jacob Straut which came into the hands of Edward J. Straut, or interest therein, or against the latter as executor or trustee or against the respondent as executor or otherwise, and no right to claim the accounting asked for.
    The will of Jacob Straut is set forth in the record, in which he directed his estate to be divided into seven equal parts, and he gave and devised to the executors and trustees named in his will one-seventh part of all his real and personal estate, in trust, to pay the income of such estate annually to each of his six living children for the use of each child, and in trust, after the decease of any child, to pay the same over to the heirs and children of such child, share and share alike, as the law directs in the case of intestacy, and if any child should die leaving no children, then in trust to pay to the next of kin; and there was a similar trust for the benefit of the grandchild, the daughter of a deceased daughter. The tenth clause of the will is as follows: “ It is my will, and the object of all the provisions and trusts made and created by me in this my will, that my said executors and trustees pay over to the lawful issue of any of my children before named after their decease the share or portion remaining in their hands of said income and principal money, should such issue prove worthy and capable of holding the same after they shall arrive at the age of twenty-one years, but if not capable or worthy, then to receive the income thereof as their parents have not until such times as my executors shall deem fit and their necessities require, leaving it discretionary with them to act in the premises, except that Elizabeth Springsteen is to receive not more than the income or said portion or seventh part annually as aforesaid. I do also appoint my executors and trustees aforesaid guardians of the persons and estates of all my grandchildren that may be entitled to a part of my estate, and also the children of my granddaughter Elizabeth Springsteen, if she should leave any during their minority; said property to remain in the hands of my said executors and trustees, guardians as aforesaid, together with the annual income thereof, and kept at interest until they shall arrive at the age of twenty-one years, at which time I leave it to their sound judgment to pay the same or withhold it, except that Elizabeth Springsteen is to receive not more than the income of said portion or seventh part annually as aforesaid, and pay the income thereof only to such of them that may become entitled thereto, as aforesaid, annually, and to pay the principal at such times and in such manner as they may deem best calculated to carry out, according to my intentions, the provisions of this my will, except that Elizabeth Springsteen is to receive not more than the income of said portion or seventh part annually, as aforesaid, it being my intention that all and each of said grandchildren and children of said Elizabeth Springsteen ■ (if she should leave any) should know the value of property when they get it, that they may make proper use of the same. It is further my will that in case any of my children aforesaid should die without leaving lawful issue from his or her body begotten, that then the share and portion coming to them, or either of them, out of my estate shall go to the brothers or sisters of such deceased person or persons, or his or her or their legal representatives in the same manner as in intestates’ estates.”
    He authorized his executors to lease his real estate and empowered them to sell and dispose of the same should it become necessary so to do in order to make a more equal division of his estate and fulfill the trusts above mentioned.
    The suit referred to in the answer was commenced in April, 1882, by Conklin and Hopper, as new trustees appointed as stated above, and there were joined as defendants in that suit Snider, as sole executor of Edward J. Straut, the widow and children of Edward J. Straut, and certain of the beneficiaries under Jacob Straut’s will, including the living life beneficiaries, but the petitioner herein was not made a defendant. The complaint in that action alleged the facts contained in the petition and answer in reference to' the death of Jacob Straut and his will, and the amo.unt of real and personal property left by him. It alleged the wasting and - misappropriation of the estate of Jacob Straut by Edward J. Straut, and that he did not keep any proper account of the estate that came into his hands under the will of Jacob Straut; that his estate was wholly insolvent and the whole thereof was insufficient to satisfy the claims of the plaintiffs as such trustees, and that all the property of which Edward J. Straut died seized and possessed belonged to them as such trustees, and they prayed judgment against the defendant Snider as executor, among other things, that he account to the plaintiff of and concerning all the funds and property and proceeds, profits and income of property, real and personal, which came into the hands of his testator in trust under the will of Jacob Straut.
    The report of"the referee and the judgment in that action thereon do not appear in this record. The decision was in favor of the plaintiffs, but upon what ground or for what amount or to what' extent do not appear. The defendant Snider appealed to-the general term and there the judgment was reversed and a new trial ordered. From the order of reversal the plaintiffs in that action appealed to this court, giving the usual stipulation required on such an appeal, and in this court the order was affirmed and judgment absolute was rendered against the plaintiffs dismissing the complaint.
    In the surrogate’s court this matter was submitted to the surrogate upon the petition and answer, and the papers annexed to the answer, and the prayer of the petition was denied. The petitioner then appealed to the general term, where the order of the surrogate was affirmed and then he appealed to this court.

      W. J. Hardy, for app’lt; Irving Brown, for resp’t.

       Affirming 22 N. Y State Rep., 550.

   Earl, J.

Nothing was presented to the surrogate but the petition and answer, and upon them he was asked to make his decision. The petitioner offered no proof and asked for no time that he might introduce proof. The order of the surrogate recites that it was made upon the petition and answer, after hearing counsel for the petitioner and for Snider. Under such circumstances it is not entirely plain what facts we have before us, or what facts must be assumed to be true. The material allegations of the petition, so far as they show any legal liability of Snider to account as executor of Edward J. Straut, were denied. He put in issue the allegations of the petition that the property of Jacob Straut came into the possession of Edward J. Straut, and denied that after the death of Edward J. Straut any of the property of Jacob Straut, or of his estate, came into his hands. Assuming these denials to be true, what account could Snider render ? Then, there is nothing for him to account for. Before Snider, as executor of Edward J. Straut, could be called upon to render any account as to the estate of Jacob Straut, it may be at least plausibly claimed that the petitioner should have furnished some proof that some portion of that estate came into the hands of Edward J. Straut, and that he had not in his lifetime accounted therefor.

But if we assume, as was probably assumed by the surrogate, that the allegations contained in the petition and the admissions contained in the answer together would otherwise have been sufficient to authorize an order against the defendant by the surrogate requiring him to render an account, we think the action brought in the supreme court furnished a complete answer to. the petition. That was an action brought by the trustees under the will of Jacob Straut to compel Snider, as the executor of Edward J. Straut, among other things, to account for all the property that came to Edward J. Straut as executor of Jacob Straut. The allegations were full and ample, if sustained by proof, to authorize a judgment against -Snider for an accounting, and for any balance that might be found due upon such accounting.- The result of that litigation after a trial, and the decision of all the courts, was a judgment dismissing the complaint upon the merits. If the petitioner claimed that that judgment was not based upon the merits, or that for any reason the adjudication proceeded upon some ground that would not be a bar to the accounting sought in this proceeding, he should have shown it by competent evidence. In the absence of any proof it must be assumed that that litigation involved every thing alleged in the complaint and that the adjudication covered the whole ground of the complaint, and that thus as against the plaintiffs in that action it was a final adjudication that Snider, as executor of Edward J. Straut, was not bound to account for any of the estate of Jacob Straut and that as such executor nothing was due from him to such estate or to the trustees thereof.

But this petitioner claims that he is not bound by that adjudication for the reason that he was not a party to that action. It is the general rule undoubtedly that one is not bound by an adjudication in an action to which he is not a party. But to this rule .there are many well recognized exceptions. Executors, administrators, assignees and receivers all act representatively as trustees of other persons, and yet in actions brought by them to recover trust property or to reduce .trust property to possession, the beneficiaries and parties ultimately entitled to the benefit of the prop•erty are not necessary parties. Here these trustees appointed to take the place of the trustees under the will of Jacob Straut had the legal title to and were the legal owners of the personal property belonging to the trust estate, T. G. T. Co. v. C. B. & Q. R. R. Co. et al., 123 N Y., 37; 33 N. Y. State Rep., 78; and it has never been held that in an action by the trustees to reduce such property to possession, or to subject it to their control, it is neces•sary to make the beneficiaries parties. In such an action they represent the whole title and interest, and their action, in the absence of fraud or collusion, is binding upon the beneficiaries. In the action brought by these trustees there was no question between them and the beneficiaries, and no question between the beneficiaries themselves. The only question at issue was between the trustees and a stranger to the trust who was alleged to have in his possession, or to be liable to account for, certain property belonging to the trust, and in such an action it is well settled now that .the beneficiariés are not necessary parties. Horsley v. Fawcett, 11 Beav., 565; Goldsmid v. Stonehewer, 9 Hare, App’dx, 38; Doody v. Higgins, id., 32; Fowler v. Bayldon, id., 78; Adams v. Bradley, 12 Mich., 346; Ashton v. Atlantic Bank, 3 Allen, 217; Boyden v. Partridge, 2 Gray, 190; Carey v. Brown, 92 U. S., 171; Kerrison v. Stewart, 93 id., 155; Western R. R. Co. v. Nolan, 48 N. Y., .513.

If the purpose of the action had been, among other things, to determine rights as between the beneficiaries themselves, or as between the trustees and the beneficiaries, then it would have been necessary to bring them in as parties. The rule is thus laid down in Perry on Trusts, § 328 : “ It is the duty of a trustee to defend and protect the title to the trust estate, and as the legal title is in him, he alone can sue and be sued in a court of law. The cestui que trust, the absolute owner of the estate in equity, is regarded in law as a stranger.” In Story’s Eq. Pleadings, 9th ed., 192, note a, it is said: Where a suit brought by a trustee to recover the trust property does not give rise to any conflict of interests between the cestui que trusts, and does not involve an investigation into their relations with each other, the cestui que trust are not necessary parties.” ' In Western R. R. Co. v. Nolan, supra, it was held that trustees who have the title to the trust fund are the proper parties plaintiff in an action to maintain and defend the fund against wrongful attack or injury tending to impair its •safety or amount, and that neither the cestui que trust nor the beneficiaries can maintain such an action against a third person, except in case the trustees refuse to perform their duty, and then the trustees should be made parties defendant. In Carey v. Brown, supra, it was held that a suit brought by a trustee to recover trust property, or to reduce it to possession, in no wise affects his relations with his cestui que trusts, and it is unnecessary to make them parties. In Horsley v. Fawcett, supra, the master of the rolls says : “ If the object of the bill were to recover the fund with a view to its administration by the court, the parties interested must be present; but it merely seeks to recover the trust, moneys, so as to enable the trustee hereafter to distribute them conformably with the trust declared. It is, therefore, unnecessary to bring before the court the parties beneficially interested.”

These trustees could have accounted and settled with Snider and discharged him without suit, and such settlement, if fairly and honestly made, would have been binding upon the beneficiaries. The rule as to the maintenance of actions by trustees in their own names, without the presence of the beneficiaries as parties, is somewhat enlarged by § 449 of the Code, which provides, that a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted; and wherever a trustee may sue in his own name without joining the beneficiaries of the trust, in the absence of fraud or collusion, the beneficiaries are bound by the results of the action. If the trustees in that action had prevailed and recovered any property from Snider therein, the recovery would have inured to the benefit of this petitioner, and all the other beneficiaries under the will of Jacob Straut. As Snider would have been bound by the judgment, as between him and any and all of the beneficiaries, in the event of success by the plaintiff in that action, so they are bound by the results of the action in the event of his success.

But it is claimed on behalf of the petitioner that the trastees were not trustees for him and did not represent him, and that as to one-seventh of the estate of Jacob Straut they were the trustees of his mother Maria Hopper and represented her only. In this the learned counsel for the petitioner is clearly mistaken. These trustees were to take the trust estate and hold it and manage it as trustees and pay the income thereof to Maria Hopper during her life, and after her death to pay the principal and remaining income to her children, share and share alike. During her life time they held the principal of the estate, not only for her benefit, but for the benefit of her children, and after her death they had a trust duty to perform. By the tenth clause of the will the trust would continue after the death of Maria Hopper until her children reached majority, and might continue longer. Therefore in holding and controlling the trust estate, and in reducing it to possession, the trustees represented, not only the life beneficiaries, but those who were to take after the death of the first beneficiaries. The suit brought by the trustees against Snider and others was really a litigation between them and Snider, and no other persons were necessary parties. The trustees as plaintiffs represented all the parties beneficially interested in the trusts under the will of Jacob Straut, and none of the persons thus beneficially interested were necessary parties. Snicler as defendant represented all the parties interested in the estate of Edward J. Straut, and none of them were necessary parties defendant to the accounting between the plaintiffs and Snider. No relief in that action was prayed for against any one except Snider. It does not appear that there was any adjudication against any one except Snider, and when he procured a reversal of the judgment rendered against him upon the report of the referee, and final judgment dismissing the complaint, there was nothing left of that action or of the adjudication therein.

The petitioner filed his petition on the 14th day of December, 1887, more than thirty years after the death of Jacob Straut, more than six years after the death of E'dward J. Straut, and four years after the death of Maria Hopper. After the lapse of so much time he cannot well claim that doubtful questions of law or of fact should be resolved in his favor.

The order of the general term should be affirmed, with costs

All concur, except Finch and Gray, JJ., absent.


author: Per Curiam.

text:
    Kate Hagan, Adm’rx, App’lt, v. The City of Brooklyn, Resp’t.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Municipal coepoeation—Removal fbom office—Salaby.
    A public officer unlawfully removed from office to which another person is appointed, and who acquiesces in such removal and has not, by certiorari or otherwise, obtained a reversal of the order removing him or a reinstatement in the vacated term by the board having authority to make it, cannot recover from the corporation the compensation incident to the office, accruing during the period in which he performed no service.
    3. Same.
    In an action to recover the salary of a public office the title to the office necessarily comes in question, and that question cannot be tried in such action.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment for defendant.

      Edward F. O'Dwyer, for app’lt; Almet F. Jenks, corporation counsel, for resp’t.

       Affirming 35 N. Y. State Rep., 940.

   Per Curiam.

We think that, under the authorities, this action cannot be supported. The rule deducible from an examination of the various cases on the subject in this state is to the effect that a public officer unlawfully removed from office, to which another person is appointed, and who acquiesces in such removal and has not, by certiorari or otherwise, obtained a reversal of the order removing him or a reinstatement in the vacated term by the board having authority to make it, cannot recover from the corporation the compensation incident to the office, accruing during the period in which he performed no service. Nichols v. MacLean, 101 N. Y., 526; McVeany v. Mayor, etc., 80 id., 190; Dolan v. Mayor, etc., 68 id., 274; Fitzsimmons v. City of Brooklyn, 102 N. Y., 536; 2 N. Y. State Rep., 475.

In an action to recover the salary of a public office the title to the office necessarily comes in question, and that question cannot be tried in such action. Hadley v City of Albany, 33 N. Y., 606.

These propositions necessarily lead to an affirmance of the judgments of the courts below.

Judgment affirmed, with costs.

All concur, except Finch and Cray, JJ., absent.


author: O’Brien, J.

text:
    Nelson L. Button, Resp’t, v. Rathbone, Sard & Co., App’lts.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Chattel mortgage—Boma eide purchasers—Beeect oe hot eilihg AS TO CREDITORS AT LARGE.
    Plaintiff, on March 20th, received from one T. a chattel mortgage -on certain stoves, in gopd faith and without intent to defraud creditors, and loaned him $1,200 in cash. On June 13th T. gave a bill of sale of the stoves to defendants, from whom he had originally purchased them, and defendants gave back an instrument in writing agreeing that on payment of $1,000 in twenty days they would reconvey the stoves to T. and satisfy his indebtedness. The stoves were set apart with tags indicating plaintiff’s ownership, but he did not file the motgage until June 23d. Held, that the defendants having merely given credit for a pre-existing debt against T. were not subsequent purchasers or mortgagees in good faith, within the statute, and plaintiff’s mortgage was valid as against them.
    2. Same.
    The plaintiff by setting the property apart from the rest, in the store of the mortgagor, and marking the articles with his name by the use of tags, did not secure any such immediate delivery nor procure such an actual and continued change of possession as the statute requires, in order to obviate the necessity of filing the mortgage, so as to preserve its lien as against the parties named in the statute.
    Appeal from judgment of the supreme court, general term, fifth department, denying -motion for new trial made by defendant, ordered to be heard at general term in the first instance.

      Arthur L. Andrews, for app’lts ; Wm. F. Cogswell, for resp’t.

       Affirming 35 N. Y. State Rep., 169.

   O’Brien, J.

The appeal in this case involves the title to certain personal property which the owner at the time transferred to both parties to the action, at different dates and under different circumstances. Thus far the claim of the plaintiff has prevailed. The property, consisting of a quantity of stoves and their outfit, was originally sold and delivered by the defendants to one Francis Tully on credit. On the 13th of June, 1884, the defendants’ debt remaining due and unpaid, Tully by instrument in writing sold and transferred the property to the defendants in consideration of $968.65, which the defendants credited upon the account against Tully. The total .amount of the defendants’ debt was about $2,000, and at the time of receiving the written transfer of the goods from Tully they executed and delivered to him an instrument, whereby they promised and agreed, within twenty days, and upon payment of the sum of $1,000 to them by Tully, to re-convey and transfer the property to any one whom he might designate; and also to release and discharge all indebtedness which they then held against him, but in case of non-payment of this sum within the time specified the instrument was to become void. The deiendants took possession of the property, and as the $1,000 was not paid, retained it under the transfer. But prior to this transaction with the defendants, and on the 20th of March, 1884, Tully borrowed of the plaintiff $1,200 in cash, giving his note therefor, payable three months from that date, with interest, and to secure the payment of the same when due he executed and delivered to the plaintiff a chattel mortgage of the property in question. The goods were set apart from the other property in the store of the mortgagor, and to each article tags were affixed, with the plaintiff’s name written thereon, but the mortgage was. not filed till June 23,1884, and after the property had been transferred and actual possession thereof delivered to the defendants.

The mortgage to the plaintiff was also conditioned to secure him for endorsements upon the notes of Tully, upon which he was subsequently made liable and a part of which he paid. The defendants, at the time of the transfer to them, had no knowledge-of the existence of the plaintiff’s claim and resisted his demand for the property, alleging in the answer that his mortgage was fraudulent. On a former trial it was held that the defendants had no standing in court to question the plaintiff’s title under the unfiled chattel mortgage, and the value of the property being-undisputed, a verdict was directed for the plaintiff. This ruling was held to be erroneous, and upon appeal the judgment was. reversed. Button v. Rathbone, Sard & Co., 118 N. Y., 666; 27 N. Y. State Rep., 938. On the new trial, which resulted in the-judgment now under review, the question of fraud in plaintiff’s mortgage was submitted to the jury, and must be regarded as settled by the verdict in the plaintiff’s favor. The plaintiff’s-mortgage is prior in point of time, must be regarded after the verdict as free from fraud, and beyond dispute was given upon a valuable consideration. His omission to file it rendered it void only as against the parties specified in the statute, namely, “ the creditors of the mortgagor and subsequent purchasers and mortgagees in good faith.” Laws of 1833, chap. 279, § 1.

The plaintiff, by setting the property apart from the rest in the store of the mortgagor, and marking the articles with his name by the use of tags, did not secure any such immediate delivery, nor procure such an actual and continued change of possession of the property as the statute requires, in order to obviate the necessity of filing the mortgage so as to preserve its lien as against the parties named in the statute. Steele v. Benham, 84 N. Y., 634..

The claim which the plaintiff obtained to the property by the execution and delivery to him of the mortgage and the payment of the consideration must prevail, unless it can be shown that the defendants are either creditors of Tully or subsequent purchasers or mortgagees in good faith from him within the meaning of these terms as used in the statute. If the question was new much might be said in favor of the construction which the learned counsel for the defendants asks us to give to the statute. But we think that these terms have, from the course of adjudications in this state, obtained a settled meaning adverse to his contention.

The term “ creditors of the mortgagor ” has been defined by these decisions - to be a creditor armed with some legal process which authorizes him to seize the property, such as an execution issued upon a judgment or an attachment. A mere creditor at large, without some process for the collection or enforcement of his debt, is not in- a position to question an unfiled mortgage given by his debtor, which is otherwise valid. Jones v. Graham, 77 N. Y., 628; Kennedy v. National Union Bank, 23 Hun, 494.

The defendants cannot be considered as claiming any rights as creditors. Their claim is under the written instruments above described, and whether this transfer is to be treated as an absolute sale or as a mortgage, its sufficiency as against the plaintiff must depend upon the consideration paid by the defendants. The statute declaring unfiled chattel mortgages void as against subsequent purchasers and mortgagees in good faith has been construed in analogy with the rule that has prevailed in this state in regard to negotiable paper and conveyances of real estate under the recording acts. This rule was stated by Judge Denio in Van Heusen v. Radcliff, 17 N. Y., 580, as follows: “ When the act respecting the filing of chattel mortgages was passed, the term Iona fide purchaser had acquired a settled meaning, which did not include a person whose purchase was on account of an existing debt, and who parted with no property or right to obtain his conveyance.” And again : “ When a conveyance is said to be void against creditors, the reference is to such parties when clothed with their judgments and executions, or such other titles as the law has provided for the collection of debts.” In determining the rights of parties under conflicting claims or transfers of personal property, these rules have been uniformly applied by the courts in this state. Jones v. Graham, supra; Thompson v. Van Vechten, 27 N. Y., 568; Stevens v. Brennan, 79 id., 254; Marsden v. Cornell, 62 id., 215; Weaver v. Barden, 49 id., 286.

The defendants having merely given credit for the value of the goods upon a pre-existing debt against Tully, were not subsequent purchasers or mortgagees in good faith, within the statute. There is no claim that the debt was actually and absolutely released or extinguished by the transaction, and hence it is unnecessary to inquire whether the principle so frequently applied to transactions with banks in regard to negotiable paper has any application to transfers of personal property within the statute providing for the filing of chattel mortgages. Coddington v. Bay, 5 Johns. Ch., 57; 20 Johns., 637; P. Ins. Co. v. Church, 81 N. Y., 218; Mayer v. Heidelbach, 123 N. Y., 332; 33 N. Y. State Rep., 610. The facts failed to show that the defendants occupied such a position as the statute requires in order to enable them to overcome the prior transfer to the plaintiff, and the judgment appealed from must, therefore, be affirmed.

Judgment affirmed, with costs.

All concur, except Finch and Gray, JJ., absent.


author: Finch, J.

text:
    In the Matter of the Application of the Common Council of The City of Amsterdam.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Municipal corporations—Assessments—Extending streets.
    The charter of Amsterdam, Laws 1885, chap. 181, § 90, provided that the commissioners “ shall at the same time assess and apportion the said damages, if any, of such improvements on the real estate and against the-persons benefited thereby.” Held, that they were not limited to an assessment upon lands bordering on the extended streets, and the authority given was without limit or restriction, but any real estate benefited by the. improvement is by that fact alone made liable to assessment.
    2. Same—Notice.
    Section 90 required notice to be published of the determination of the city to make the improvement and to take the lands, notifying owners to-file with the city clerk claims for damages, etc., and after appointment of commissioners a second notice was to be published as to when and where they would meet to make “ such ascertainment and assessment.” Held, that up to this time the statute requires no notice except to those whose lands have been taken.
    8. Same.
    After the commissioners had appraised damages on one hand and assessed for benefits on the other and filed a report with the city .clerk a third notice was to be given. Held, that this notice was not confined to-the owners whose lands have been taken but runs to all parties interested, and as the district affected was the city boundaries, and everybody within, it was notified of an assessment which might reach their lands, their -duty was to examine the report on file and see if it did. And thus the charter sufficiently provided for a notice to all parties interested and for a hearing upon which their rights could be amply protected.
    Appeal from judgment of the supreme court, general term, third department, affirming that part of the order of special term which set aside an assessment for extending Grove street in the-city of Amsterdam, and reversing that part of the order which sent the matter back to the commissioner for a re-assessment.

      Edward J. Maxwell, for app’lt; Z. S. Westbrook, for resp’t.

       Reversing 28 N. Y. State Rep., 516.

   Finch, J.

The special term, upon the motion to confirm the-commissioner’s report, awarding damages and assessing benefits for the extension of Grove and Jay streets in the city of Amsterdam, had before it two classes of property owners objecting to the confirmation; one class consisting of persons whose lands had been taken for the improvement-, and the other of persons assessed for benefits whose property was situated upon outlying streets, not immediately or directly connected with Grove or Jay streets, or their proposed extension. Mrs. Dickson, whose land was taken, objected to the sufficiency of the award of damages, as did also-Mrs. Nolan. The former raised the question of the constitutional validity of the act. All the other parties appearing were owners-upon the outlying streets, and they also raised the constitutional question. The special term, however, held that as to these last objectors there was no sufficient proof that their property was specially benefited by the improvement. That court had before it the maps used by the commissioners which are not before us, and its determination as to the facts, apparently approved by the general term, and certainly not reversed by its judgment, should be deemed satisfactory and close that question on this appeal.

The special term also held that the section of the city charter under which the improvement was ordered did not authorize assessments for benefits upon property not lying on the extended streets; and the order which the court made, while affirming the action of the commissioners as to the damages allowed, yet sent the case back for a further apportionment upon property benefited. From this order the city appealed. Mrs. Dickson and Mrs. Nolan did not, but submitted to the award of damages, and lost any further right to be heard. They might have appealed and raised the constitutional question in the general term, but since they did not that question could no longer be answered in their behalf. The appeal by the city left open only the validity of the assessment for benefits on the outlying owners.

The general term were called upon to determine the rights of such owners as were affected by the assessment. That court appears to have agreed with the special term, so far at least as its opinion indicates, that there was no sufficient proof of special benefits to the outlying owners. But it went further than that, and, disagreeing, with the special term in its construction of the charter, held that its terms gave the right to assess for benefits lands not on the extended streets, but was unconstitutional for lack of a provision requiring notice to the owners of such lands; and, as a consequence of that conclusion, ruled that no assessment could be made at all, and so reversed the order of the special term permitting a rehearing. The ruling would have been needless if the court agreed with the special term that no benefit to outlying lands had been shown, but for the consideration that on a new hearing new proof of such special benefit might be given, and the case come back dependent upon the constitutional question. In that view the court was justified in deciding it, and on this appeal it is our duty to meet it.

An examination of § 90 of the charter satisfies us that the general term was right in its conclusion that the commissioners were not limited to an assessment upon lands bordering on the extended streets. The authority given is without limit or restriction. The words are: They shall at the same time assess and apportion the said damages, if any, of such improvements on the real estate and against the persons benefited thereby.” No arbitrary district of assessment is marked out; no limitation upon the commissioners’ judgment is imposed; but any real' estate benefited by the improvement is by that fact alone made liable to assessment. As a consequence of that construction it follows that while, thus far, no sufficient proof of benefit has been given as it respects the outlying property, yet on a rehearing there may be, and against that possible result the owners affected interpose their objection to the validity of the statute.

That objection is based upon the contention that the charter fails to provide for notice to the parties assessed. Section 90 requires notice to be published of the determination of the city to make the improvement and to take the lands necessary therefor. This notice is required to describe the contemplated improvement in general terms, and to notify the owners of the lands to. be taken that they may file with the city .clerk claims for damages, and that if such claims are made application to the supreme court will follow, at a specified time and place, for the appointment of commissioners. On that application the section provides that those who have filed claims for damages may appear and shall have a right to be heard. So far, the statute confines the notice to be given to those whose lands are to be taken, and the fight to be heard to those who have filed claims for damages. After the appointment of the commissioners a second notice is required to be given. They are directed to publish a notice of the time and place when and where they will meet to make “ such ascertainment and assessment.” That means the ascertainment and assessment of damages to the land owners, for no other assessment precedes or has been mentioned, and beyond it the notice does not extend.

But after meeting and making the award for damages they are further authorized to assess the expense upon the real estate benefited. No district of assessment less than the-city boundaries is established, and so they may assess any lands specially benefited within those boundaries. If they deem it unjust to put the whole expense upon the property specially benefited, they are authorized to put one-quarter of it upon the city at large. Up to this point the statute requires no notice to any one except those whose lands have been taken. But after the commissioners have acted, and have appraised damages upon the one hand and assessed for benefits on the other, they are required to file a report of their work with the city clerk. Then a third notice is to be given : that the report of the commissioners has been so filed; that it may be examined by “ all the persons interested; ” that it will be presented at a specified time to the supreme court for confirmation; and that all persons ” desiring to object may file their objections with the city clerk.

The usual personal notice is also required to be given to those who have already appeared in the proceeding. On the day appointed the court is “ to hear the parties in regard to said report," and may confirm or annul it, and in the latter event may send it back to the old commissioners or appoint new ones. This notice is not confined to the owners whose lands have been taken.' It runs to all the parties interested, and everybody so in fact interested has been furnished ample opportunity, by inspection of the report on file, to know whether he is, or is not, interested, and to file objections and assert his rights, if he shall so please. He may question the constitutionality of the act or the fairness of the apportionment made, or may ask for the appointment of new commissioners and be heard in their selection. The statute thus gives him his day in court and full opportunity to be heard.

The case relied on by the general term is that of Stuart v. Palmer, 74 N. Y., 184. All cases are more or less liable in the stress of litigation to be cited as authority for what they do not hold, and the one referred to has had its share of that treatment. The facts in that case showed that there were two separate and distinct improvements, each followed byits own expenses and its own several assessment for benefits. The first was to extend Atlantic avenue from the city of Brooklyn through the town of Mew Lots to the county line. Laws 1869, chap. 217. The second was to grade and complete the avenue thus opened. The commissioners were to be appointed without notice to any one either of their appointment or of the intention to make the improvement, but they were required to publish notice of the time and place of their meeting to appraise damages and assess for benefits, and to give further notice of the filing of their report and the motion for confirmation. These two notices applied only to the opening of the new street, and we held that they were ample and sufficient to sustain the statute so far as it took lands for the improvement and authorized the expense to be assessed upon the property benefited. But as to the second improvement for grading and completing the street when opened, no notice whatever of any kind nor to anybody was required to be given, and for that reason we held the statute assessing for that improvement to be invalid.

The case, therefore, decides that some notice must be given, and one that is not ineffective or illusory, and also that the notices required for the first improvement were ample and sufficient. One of those notices, that of application to the court for confirmation, was in substance and effect identical with that required by the charter before us, and if adequate to support the statute in one case is equally so in the other. The difference between the two statutes, which is apparently relied on by the respondent, is that in the Brooklyn act notice was required, not only of the confirmation, but also of the hearing for assessment of benefits before the commissioners, while here the former notice is alone required to be given to those to be assessed. But the constitutionality of an act like that under discussion does not depend upon a double notice and a double opportunity to be heard. The legislature may grant so much if it shall choose, but is not bound to do so, and acts within its authority if it requires one sufficient and adequate notice, and not two. In the Stuart case, the limitation imposed was described as “ some notice to the owner, or some opportunity on the part of the owner at some stage of the proceeding to be heard.” Either one of the notices in that case would have been sufficient, and the most important one of the two is fully required by the Amsterdam charter. The assessment by the commissioners is proposed and merely tentative and has no effect upon the owner or his property until final confirmation ; and at that point, at, that vital and essential stage of the proceedings,” the charter requires notice to the owner, and gives him an opportunity to be heard as to the assessment.

If such notice is awarded by the statute, it is of no consequence whether there is a hearing before the commissioners. Remsen v. Wheeler, 105 N. Y., 579; 8 N. Y. State Rep., 202, does not decide the contrary, as the respondents contend, citing the last half of a sentence, that “ unless the law gave them the right to notice and an opportunity to be heard before the board which was authorized to impose the assessment, the act was invalid.”

That was said of a case in which there was no provision for confirmation, and the water board which made' the assessment by its own action effectually imposed the tax. Of coarse there the necessary hearing was before the board, but the corresponding hearing here is before the special term, by whose action alone the tax is effectually imposed. Ho different doctrine was declared in Spencer v. Merchant, 100 N. Y., 585; 125 U. S., 350, nor in People v. Turner, 117 N. Y., 227; 27 N. Y. State Rep., 158. On the contrary, it was explicitly said in the latter case that “notice by publication before the final confirmation of the assessment, and an opportunity afforded to make objections within the time specified,” satisfied the constitutional requirement.

It is objected here that not only is the notice required by the act to be given after the commissioners have made their assessments, but that the outlying owners would have no reason to suspect that their lands would be affected. The last suggestion is fairly answered by the facts in the Stuart case. There the assessment for benefits extended a part of the way to a distance from the avenue of 300 feet, and so may have affected lands not on the avenue at all; here the owners assessed were a much greater distance away. Those in the Stuart case owning lands off of the line of the avenue might have urged, as do the owners here, that they had no reason to anticipate an assessment. The difference of distance cannot vitally affect the principle. In both cases the sufficient answer is that the land owners must be deemed to have known and understood the terms of the statute, and so the district of assessment, and if their lands were within that- district, they were bound to assume that they might be assessed. Here that district was the city boundaries, and everybody within it was notified of an assessment which might reach their lands, and their duty was to examine the report on file and see if it did.

That the notice followed .the action of the commissioners, and did not precede it, is no valid objection. That is always the case in the ordinary mode of taxation, and the validity of the statute depends not on the time or mode of notice directed, but upon the fact that it is directed, and furnishes an effective opportunity to be heard.

We think, therefore, that the charter sufficiently provided for a notice to all parties interested, and for a hearing, upon which their rights could be amply protected.

The order of the general term should be reversed, so far as it reversed the order of the special term, and the order of the special term should be affirmed, with costs.

All concur. _