author: Parker, J.

text:
    Ida M. Dow-Currier, Resp’t, v. David Henderson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    1. Master and servant—Negligence.
    A master is not relieved from liability for the negligence of a servant hy the fact that such servant was under the direction of a third party, where-he hires, pays and alone has authority to discharge him.
    2. Appeal—Exceptions.
    The power of the general term, to reverse, though no exceptions is taken, is never exercised in a civil action, when the error complained of was one that could have been cured on the trial if the attention of the court and opposing counsel had been directed to it.
    3. Same—Objections.
    In the giving of testimony by an expert upon a general subject about which he is presumed competent to testify, the form of the objection should be such as to call the attention of the court sharply to the fact that the testimony adduced is not confined within the limits established by the decisions of the courts.
    Appeal from a judgment entered on a verdict on favor of plaintiff, and from an order denying a motion for a new trial.

      Louis Marshall, for app’lt; Christopher Fine, for resp’t.
   Parker, J.

The jury rendered a verdict in favor of the plaintiff, in the sum of $18,000, for damages sustained by the falling of a batten from the flies in defendant’s theater, which struch her on the head, and fractured her skull. A portion of the skull had to be removed, and her life was for a time seriously threatened. The evidence tends to show that the accident was due to the negligence of the flyman, who was in the defendant’s general employ, but at the time of the accident was operating the scenery, under the direction of the plaintiff, as stage directress of the Julia Marlowe Company. Defendant contends that by reason of the fact that the plaintiff, as such directress, had the right to direct and control the action of the flyman during the performance, the defendant did not stand in the relation of superior to the flyman, whose wrongful act constitutes the ground of action. The point is presented by exceptions taken to the following portion of the charge of the trial court:

“The defendant, under the agreement between himself and the Julia Marlowe Company, was liable to the plaintiff, as a member and component part of the company, for any injury which she received from the carelessness and negligence of the defendant, or any of the attaches or employes which he supplied or furnished on the stage or in the fly gallery, in either’the management or manipulation of the hoisting or lowering of any of the scenery used in the play while the company was performing. * * * Although the defendant’s servants were under the immediate control of the theatrical company, yet they were not its servants in the ordinary sense. They were npne .the. less his (the defendant’s) servants. He alone employed and paid them, and he alone had the power to discharge them.

Either the defendant or, the Julia Marlowe Company was, in a legal sense the flyman’s superior when the accident occurred. Both could not be for the law does not recognize two principals who are unconnected' and severelly responsible. Hobbit v. Railroad Co., 4 Exch, 253; Pack v. Mayor, etc., 8 N. Y. 222; Sloane v. Elmer, 64 id. 201. If the plaintiff or the Julia Marlowe Company was the flyman’s superior, then the exception was well taken, otherwise not.

We have been favored on this argument with extracts from •opinions which, if accepted, instead of the decisions actually made, would seem to support equally well the contention of either party. But, as we have said, both parties could not stand in the relation •of superior to the flyman. One of them clearly did, and we think that one was the defendant. The evidence, which includes the •contract between the defendant and the plaintiff’s company, shows that the defendant was to and did supply the. theater with stage and staging scenery, police, regular attaches on stage and in front of the house, leader of and orchestra, for which the defendant was to and did receive from the Julia Marlowe Company fifty percent, of the gross receipts of the house. The flyman was one of the regular attaches on stage, and he, together with all the other attaches and servants which the defendant by his contract agreed to furnish, were -employed and paid by the defendant. They were not employed for the special occasion, but were the standing employes in defendant’s theater. In other words, the defendant agreed to furnish to the Julia Marlowe Company, for fifty per cent, of the gross receipts, the theater, scenery, and all necessary employes for its conduct and management; and the company, in consideration therefor, and of fifty per cent, of the gross receipts, agreed to give certain performances. The servants which the defendant agreed to furnish, and did furnish, whom he hired and • paid, and alone had authority to discharge, were his servants ; and that relation was not at all affected by the fact that the Julia Marlowe Company, or the plaintiff as its directress, were at liberty to direct when and how they should perform their duties, in the course of a presentation of a play. This situation seems to us precisely analogous to that of a person who hires from a livery man a team with carriage and driver for an afternoon’s drive. To a limited degree, the hirer acquires dominion over the servant, may direct upon what streets to drive and where to stop, but the driver continues, in legal contemplation, the servant of the owner, who is responsible for his negligence, though it occurs in the course of a drive which the hirer directs.

It is further urged that a recovery was had upon a ground not alleged in the complaint; that the plaintiff charged that the defendant was careless and negligent' in the maintenance and construction of the scenery, and in permitting the same to become and remain out of repair, and not that it was due to the negligent acts of the flyman. This point is not well made, for two reasons : (1) The evidence relating to the misconduct of the flyman was admitted without objection being made by the defendant that it was not within the pleadings. (2) Neither by a request to charge, nor by an exception to the charge as made, was the attention of the court called to the claim which appellant now makes. Counsel in effect concedes that the exceptions to the charge were lacking in definiteness, but invokes the power of the general term to reverse, though an exception be not taken. It is a sufficient answer to make in this case to say that this power is never exercised in a civil action when the error complained of was one that could have been cured on the trial if the attention of the court and opposing counsel had been brought to it. In this case the court could, and doubtless would, have conformed the complaint to facts proved had the fact of the variance between the complaint and the proofs been alluded to.

Dr. Graham, who attended the plaintiff during a portion of her illness, described the nature of the injury to the plaintiff’s brain, after which the examination continued as follows:

“ Q. What results usually follow such an injury of the brain ? A. You mean what may follow? Q. AYhat usually follow? (Objected to. Objection overruled. Exception.) A. Well, sometimes they get entirely well, and have no results; but injuries of that kind are almost certain to leave permanent damage to the brain. Well, you might sum it all up,—say, an unstable condition of the nervous system, manifested in various ways. One might be simply hysteria, or a loss of equilibrium of temperament, such as fretfulness and that kind of thing, epilepsy, insanity, feeble-mindedness generally. Those are the possible results and what often follow these injuries. That is what I mean to say. Q. How long after the injury may these different symptoms be manifested? (Objected to. Objection overruled. Exception.) A. Oli, might be for a lifetime. Q. You do not understand my question. I will make it more clear. Do those symptoms necessarily follow immediately after a healing of the wound, or may they come at a later period ? A. You mean these various manifestations? Q. Yes, sir. A. AYell, it is possible that they continue right along from the time of the injury to the healing of the wound, or some of them may come -on at any time later. Q. And is this time in which they may appear limited by any number of years"? A. No, except, the further along the patient goes without any, the less liable they are to come. One of the manifestations that I describe is that of extreme irritability. Q. Suppose they were to appear in this plaintiff within a period of from one to three years after this injury, would you consider them due to the injury? A. Well, it would be a matter of opinion. It would be a fair inference. * * * Q. In your judgment, would this injury necessarily affect the future conduct of the patient with respect to the business she might follow or habits of life which she might pursue ? A. Well, I could not say it would necessarily, but I would say it was more liable to. Q. In what way ? (Objected to. Objection overruled. Exception.) A. Well, if any of these sequels or manifestations I have previously described should be present, she would be, to a certain extent at least, unfitted for any occupation, of any kind, if she would have epilepsy. Of course, if she would have simply loss of equilibrium or mental condition unstable, why she would be somewhat incapacitated for certain kinds of work. Of course, if she became entirely insane, she would be entirely unfitted. Q. Would she, in your judgment, be able to take part in any business of an exciting nature, or one which required her to remain up late at night ? (Objected to. Objection overruled. Exception.)' A. Well, there would be more likelihood of her inability to do that than if she had never been injured.”

Had a proper objection been made, it is clear that the evidence objected to should have been excluded, under the authority of Strohm v. Railroad Co., 96 N. Y. 305, and Griswold v. Railroad Co., 115 N. Y. 61; 23 St. Rep. 729. It is competent, in such cases, to show by competent experts what results are reasonably certain to ensue from the injury ; and, that being so, the form of the objection should be such as to call the attention of the court sharply to the fact that the testimony being adduced is not confined within the limits established by the decisions of the courts. McCooey v. Railroad Co., 79 Hun, 255; 61 St. Rep. 34. This-general rule should be insisted on because in the- giving of testimony by an expert, upon a general subject which he is presumed competent to testify about, the court may not appreciate that the witness is testifying as to a result which may or liable to occur, rather than one which is reasonably certain to ensue from the injury ; whereas, if his attention be brought to the distinction by the form of the objection, a correct rule will be observed, and no injustice will result to either party. Any other course would be to encourage counsel in setting pitfalls for the court, with new trials as the attending result.

The judgment and order should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Atlantic Trust Company, as Trustee, etc., Resp’t, v. Haskin-Wood Vulcanizing Company, Def't. Andrea Fontana et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Corporations—Stockholders—Parties.
    Where the receiver of- a corporation refuses to appeal from a judgment foreclosing a mortgage given by it, and such refusal is not the result of fraud or collusion on his part, a stockholder will not be allowed to come in as defendant, in order to appeal therefrom, unless he shows that the judgment will probably be reversed on appeal and a judgment more favorable to the corporation and the stockholders obtained.
    Appeal from an order denying a motion by certain stockholders to be made parties defendant in the action.

      The petition of the stockholder Fontana, in which another stockholder joined, and which is the basis- of this application, shows: That an action was begun in this court wherein the Atlantic Trust Company, as trustee, is plaintiff, against the HaskinWood Yulcanizing Company for the foreclosure of a mortgage upon all the property of the corporation. That, in furtherance of a scheme in the interest of the bondholders, the president and the management of the corporation permitted the plaintiff to ente a judgment of foreclosure and sale on the 18th day of October, 1893, and the property was advertised for sale on the 20th of November, 1893. In October, 1893, certain judgment creditors commenced an action to sequestrate the property of the corporation, in which action one David Thomson was appointed receiver of the corporation, and took possession of its property. Subsequently an order was made by this court opening the judgment of foreclosure, and allowing the receiver to come in and defend. After his answer was interposed, the issues were by consent referred to a referee to hear and determine. The referee subsequently reported, in effect, that the mortgage was invalid as a lien upon all the property of the corporation as to the creditors and receiver, but valid as against the corporation as to a portion of the property, and directed a sale and judgment for deficiency, if any, that there was due plaintiff. Such judgment was entered, and a sale advertised thereunder. The receiver likewise advertised a sale of all the property of the corporation. Certain stockholders and judgment creditors requested the receiver to appeal from the judgment of foreclosure, and on his refusal requested the court so to instruct him, which the court, for reasons stated in the opinion, declined to do. The petitioner, after reciting such facts, says: “As I am advised and verily believe, my rights as a stockholder of the defendant corporation are seriously endangered and imperiled by said judgment, unless I am allowed to come in and defend the action and appeal. * * * That I supposed that said David Thomson was appointed receiver to protect the rights of the stockholders as well as all others interested in the defendant corporation, but as I am informed and believe, and as shown by his affidavit in the motion to instruct him to appeal, he acts simply for the creditors, and does not intend to protect the rights of the stockholders.” This petition is supported by affidavits, the one presented by the stockholder who joins in the petition showing that, upon an application made to the attorney general to take into consideration the position assumed by the receiver, there resulted an arrangement by which he was permitted to appear at the reference, examine and cross-examine the witnesses, and in every way to assist the receiver in maintaining the defenses that had been interposed to the validity of the mortgage. In atiswer to the petition and affidavits, the receiver denies that portion of the petition which states that the receiver “acts simply for the creditors, and does not intend to protect the rights of the. stockholders." We have also the affidavit of the attorney for the Atlantic Trust Company trustee, plaintiff in the foreclosure suit, showing the five grounds of defense set up by the receiver and all the proceedings subsequently had ; from which it would appear not only that the ¡stockholder who joins in this petition took an active part throughout all the proceedings, but that at different stages the attorney for the petitioner intervened, notably after the motion for judgment upon the referee’s report and prior to the entry of judgment upon a séttlement of an order for sale. In addition to the showing thus made of the part taken by the petitioners, and their knowledge of the proceedings in the foreclosure suit, the attorney for the trust company in his affidavit directly assails the good faith of the application, and asserts that one of these stockholders (referring to the one that appeared upon the reference and examined the witnesses) has been conversant with every step of the litigation, and that “one of the judges of this court stated to said Mitchell that if he was not satisfied with the conduct of this litigation he should intervene, and that deponent has frequently suggested the same thing, but that he has not hitherto endeavored to do so; that it is the opinion of your deponent that the object of this motion is, in effect, to take an appeal, and use said appeal to delay the sale of the property by the receiver ; that the defendant company is hopelessly insolvent, and that a spe.edy sale is desired and urged by ninety-five per cent, of the creditors.” Some other affidavits and papers are used, but the substantial facts relating to the merits of this application have been stated.

      Franklin Bien, for app’lts; William C. Osborn, for resp’t.
   O’Brien, J.

By section 452 of the Code of Civil Procedure, it is provided that “where a person not a party to an action has an interest in the subject thereof, * * * and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.” Relying, no doubt, upon the mandatory language of the section, the petitioner applies to be made a party, to the end that he may appeal from the judgment of foreclosure and sale. It is apparent that the proper party to the action in the first instance would be the corporation, which was joined, and which, through the receiver, interposed its defense's to the mortgage. The real party in interest, therefore, having been made a party, the petitioners were not entitled, as a matter of right, to be brought in, the question being one 'clearly within the discretion of the court. Gaslight Co. v. Treman, 93 N. Y. 660. That was an application by a stockholder to be allowed to come in as a party defendant in an action bronght by the company against its president and treasurer for alleged malfeasance. In a memorandum handed down it is said :

“The supreme court had the power, under section 452 of the Code, to grant or refuse Pinckney’s application to be made a party to this action, and we cannot, therefore, interfere with the exercise of its discretion.”

The general term, however, has the right to determine whether the discretion vested in the special term of the court has been wisely exercised. We have examined the petition, and the afiidavits in support thereof, and those in opposition, with a view to determining that question. From them it appears that in a foreclosure suit, which was strenuously fought, with the aid of one of the petitioning stockholders, by the receiver, a decree or judgment of foreclosure and sale has been rendered. That such judgment was in some respects favorable to the receiver appears, and that the difference of opinion which has arisen between the receiver and the petitioning stockholders as to the propriety and advantage of appealing resulted in this application. As against the opinion of these stockholders, who hold shares of the corporation individually, the par value of which represents a large sum, the receiver in his refusal to appeal is supported by ninety-five per cent, of the creditors.

.Whether the course pursued by the receiver in not appealing was right, or whether the opinion expressed by counsel for the petitioners is correct, that the judgment would be reversed on appeal, must remain a “subject of conjecture, in the absence of anything before the court enabling it to determine that question. It is true that the form of the judgment seems anomalous, in that it holds the mortgage void in part, so far as it affects the receiver, and valid with respect to certain property, so far as it affects the corporation; but it would be hazarding an extreme opinion to hold, upon this mere appearance of inconsistency in the judgment, that it was invalid, and should be reversed. Such a conclusion, without anything before the court upon which to base it, would he to destroy all the presumptions which naturally exist in favor of the validity of judgments. We think, therefore, that it was incumbent upon the petitioners to have set forth sufficient facts, not only showing the likelihood of reversal on appeal, but going a step further, and showing that the final result, so far as the corporation and stockholders were concerned, would be a more favorable judgment. It may well be that this judgment was as favorable to the corporation as it had a right to expect, in which event the refusal of the receiver to go further would be but protecting the interests of the corporation which he represented. Upon the meager facts presented in support of the application, either relating to the merits or showing that the receiver in refusing to appeal acted in bad faith or contrary to the interests he was appointed to protect, no collusion or fraud being charged, and in the light of the opposing affidavits, we cannot conclude that the special term improperly exercised its discretion. Apart from this, we think the relief sought of doubtful utility, in view of the judgment which has been entered against the corporation, the time to appeal from which, as respects the corporation, having expired.

In Alexander v. Donohoe, 143 N. Y. 203 ; 62 St. Rep. 153, which was an action brought by a stockholder to set aside and annul various transactions relating to, and conveyances of property alleged to belong to, the corporation, among others the foreclosure of a mortgage executed by the company, on the ground that the conveyances and transactions, including the foreclosure proceedings, were fraudulent, but the complaint in which action did not allege collusion or other grounds that would give a court of equity jurisdiction to set aside the judgment against it, it was held that the plaintiff was estopped by said judgment, the court,, in the course of the opinion, saying:

“ Suing as a stockholder, the plaintiff’s right of action is a derivative one. He sues, not primarily in his own right, but in right of the corporation. The wrongs of which he claims are wrongs to the corporation ; they were not aimed at him, and did not involve his personal or individual rights. He stands as a member of the corporation, and it is the party to sue for and recover damages for the wrongs, or equitable relief against the frauds, alleged.”

And in speaking of the action, the judgment recovered in which was sought to be set aside, the opinion continues:

“ And in that action substantially the same issues were offered as are presented by the pleadings in this action, and the adjudication then upon the issues was against the defendants there. The judgment in that action was rendered without any collusion, after a real litigation, by a court of competent jurisdiction, and no allegations are made against it on account of which a court of equity in a collateral action would have jurisdiction to set it aside. The judgment binds this plaintiff as a stockholder, * * * and bars his recovery in this action.”

The distinction between the action thus brought by the stockholder, and an application made upon petition to be allowed to intervene in the very .action in which the judgment was obtained, is, of course, apparent; but this does not destroy the rule that is applicable in respect to the binding force and effect of a valid judgment. If the petitioners can be permitted practically to occupy the position of the receiver, who refuses to appeal, and in his stead contest on behalf of the corporation the validity of the mortgage, then we see no reason why, if these stockholders are defeated, other stockholders may not come in, and so on ad infinitum. Such a course would indefinitely postpone a sale. Unquestionably the court has the power, in a proper case, to permit, a stockholder to intervene, as shown by the case, already referred to, of Gaslight v. Treman; but after judgment obtained, as said in Alexander v. Donohoe, supra, “after a real litigation, by a court of competent jurisdiction,” and without allegations “made against it on account of which a court of equity on a collateral action would have jurisdiction to set it aside,” the right of these petitioners to revive and extend the time to appeal is, to say the least, doubtful, after such- " time, so far as the corporation is concerned,.has expired, and its right to appeal has been lost. Without deciding this, however, we think that where, as here, no fraud or collusion, so far as the receiver is concerned, is charged, and where from the facts it cannot be determined whether or not the refusal of the receiver to appeal—in which he seems to have been supported by so many interested—was justifiable, after a litigation actively and strenuously fought by one at least of the petitioning stockholders, no sufficient ground was presented to the court below to require it, in the exercise of a wise discretion, to grant the right to intervene. Upon examination we have concluded that no proper case has been made out which would justify us in interfering with the dis■cretion exercised by the special term. Order affirmed accordingly, with $10 costs and disbursements.

Van Brunt, P. J., and Parker, J., concur in result.


text:
    Hector De Castro, App’lt, v. Compagnie Francaise Du Telegraphs De Paris a New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Contract—Performance.
    Under an agreement to procure the ratification from the Federal government of a right granted hy a state, the mere ascertaining that there is no necessity for getting it is not a compliance with the contract.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.
    In this action it is sought to recover upon an agreement alleged to have been entered into between the parties, and which is embodied in the letters or correspondence between them. The plaintiff resided at New York, and the defendant is a foreign corporation created and existing under and by virtue of the laws of the repulic of France, aad doing business at the city of Paris. On January 22,1892, the legislature of Virginia passed an act permitting the defendant to land its cables on the coast of that state, to ■connect with telegraph, telephone, and other lines in the state, and to acquire the land necessary to be used for the landing of its cables. On September 2, 1893, the plaintiff wrote to defendant, referring to steps which he had taken to assure to it the peaceable enjoyment of the right which it obtained from the state of Virginia, and saying: “ I can in thirty days from now insure to you the remittance of the federal official document consecrating your right So land your Porto Plata cable in the United States.” On September 9th plaintiff wrote: ‘‘I am more certain than ever of the incontestable validation of the rights which the state of Virginia grants to you. nevertheless, this act being in fact the expression ■of a contest entered upon between this state and your company, it is indispensable even for the validity of the rights for which we wish the federal and incontestable sanction that you establish here, and as soon as possible, the fact that your company agrees to submit to the conditions to which the enjoyment of these rights is subordinated.” Inclosed in this letter- were resolutions to be adopted by defendant, which accepted the franchise conferred by the state of Virginia, and all the restrictions and obligations required by the laws of the United States, “ and particularly the law relating to telegraphs, entitled LXV. of the Revised Statutes of the United States.” The resolutions contained a copy of the Virginia act, and also copies of sections 5263 to 5269 of the United States Revised Statutes, conferring upon telegraph companies the right to construct, maintain, and operate lines of telegraph over, under, or across navigable streams or waters of the United States, and requiring such lines to be so constructed and maintained as not to obstruct navigation; the language at the commencement of section -5263 being: “ Any telegraph company now organized or which may hereafter be organized under the laws of any state shall have the right to construct, maintain and operate lines of telegraph through, over and along any of the military or post roads of the United States,” etc. These resolutions the plaintiff undertook, when returned to him properly authorized, to deposit with the postmaster general, which, when so returned, he accordingly did. On September 22, 1893. the company adopted the resolutions, and transmitted them to plaintiff, and in a letter of the same date wrote him : “ At its meeting of this day, the council authorized me to agree with you that, if you obtain for our company a declaration of the federal government which assures to it the enjoyment, without restriction and unattackable, of the landing right which it holds from the separate government of the state of Virginia,—an enjoyment which cannot be attacked by it in any connection, without obligation or prohibition to connect it at any fixed point; in a word, unconditional.—you will receive * * * one hundred thousand francs. * * * You will receive, besides, * * a sum of two hundred thousand francs, payable the day when the vessel having the cable on board shall put to sea for the purpose of laying it. The council expressly demands that, to give it entire confidence, you will kindly take the written opinion of Mr. Coudert upon the unconditional and unattackable character of the federal government’s declaration, and address the same to the company. * * * It seems to me useless to insist on the necessity for the Oompagnie Francaise, after the difficulties it has encountered on the first occasion, not to drop into new discussions on the validity on the landing rights which it holds since 22d January, 1892. I cannot, then, call your attention too much to the precision of the terms of the authorization which we propose to you.” The declaration of the federal government which the plaintiff claims met the requirements of the company’s letter was as follows:
    “Department of State, Washington, August 28, 1893.
    “ Jefferson Chandler, Esquire, No. 120 Broadway, New York City—Sir: I have received your recent letter, inclosing a printed brief in support of an application made to this department by Cie. Francaise du Telegraphe de Paris a New York, a French corporation, for permission to land its cable on the shores of Virginia, which has already been granted, as you affirm, by the state of Virginia. There is no legislation of the United States conferring authority upon the president to grant or deny such permission, and, in the absence of such legislation, executive action of the character desired would have no binding force. I am, sir,
    “ Your obedient servant, W. Q. Gresham.”
    On November 2, 1893, Mr. .Coudert gave a memorandum, in which, referring to the declaration of Secretary Gresham, he, among other things, said : “ I do not apprehend any difficulty or danger in the laying of the cables so far as executive interference is concerned. At all events, nothing further can be done to insure safety. It is plain that the executive can give us no permission if it disclaims jurisdiction.” On November 4, 1893, Mr. Coudert addressed a formal communication to the company, in which he says: “ In view of all the facts, and especially of the unqualified disclaimer of jurisdiction on the part of the executive, I can see no reasonable grounds upon which such interference may be feared. * * * Once the cable has been laid, it's operations will be subject to the authority of congress, under the clause of the constitution permitting that body to regulate commerce.-' That is, of course, a risk that all enterprises of this kind must incur; in is common to all.” On November 11, 1898, plaintiff wrote, asking for the 100,000 francs, and transmitting a copy of Mr. Gresham’s declaration and certificate of the postmaster general that the resolutions of the company were on file in his department, Mr. Ooudert’s opinions, and a legal opinion of Mr. Chandler, dated October 12, 1893.. Upon the trial there were offered two additional letters from Mr. Goudert, dated in December, 1893, and February, 1891, and which were excluded, because written after the commencement of the suit. There was also excuded an offer to show-that plaintiff obtained a charter for the company in New York, and an offer to show verbal declaration by Secretary Gresham was likewise excluded.

      John E. Parsons, for app’lt; Edward W. West, for resp’t.
   O’Brien, J.

We think that the exceptions presented upon these rulings excluding the evidence offered should be overruled. If, however, we regard them as relevant and competent, they do not change the conclusion to be reached upon the question of plaintiff’s right to recover. That question turns upon the determination of whether the letter written by the secretary of state of the United States, Mr. Gresham, as explained by the opinions of Mr. Coudert contained in his letters, shows- a fulfillment of the conditions upon which the plaintiff’s right to compensation depended.

At the outset, it will be noticed that the letter of Mr. Gresham bears date August 28, 1893 ; and, in the absence of evidence to the contrary, its existence may therefore be presumed at the time when the correspondence relating to this subject was opened by the plaintiff with the defendant, the first letter in which bears date September 2, 1893. Whether Mr. Gresham’s letter was received at the latter date, or its existence known to plaintiff, does not appear. If it was already in existence at that time, plaintiff's claim being based upon its procurement by him from the United States secretary of state, it can make no difference whether he knew of its existence or not. If he did not know of its existence, he certainly did not procure it. If he did know, and the defendant did not, the contract subsequently made would be void as to the defendant, and it could not be required to pay for the procuring of something which already existed. If, however, we take the inference most favorable to the plaintiff,—that Mr. Gresham's letter was not written until after the company, at the suggestion of plaintiff, had authorized him to proceed and obtain the rights, mentioned in their letter,—it still remains to determine whether that letter complied with the contract.

It cannot be seriously contended that the defendant entered into a contract by the term of which it was to pay the large sum, in two payments, of 300,000 francs, and in return received nothing ■or very little of substantial value. We may concede, as argued, by plaintiff, “that the Virginia act' gave to the defendant company an unrestricted and unattainable right to land its cable.” If so, there was nothing further that it could obtain from the federal government. The filing with the postmaster general of an agreement to be bound by.the conditions affecting telegraph companies, though done at the suggestion of the plaintiff, did not confer any .additional rights or privileges upon the defendant, because it will be noticed from the language of the section quoted that it relates to domestic corporations, its express terms confining it to telegraph companies now or hereafter organized “under the laws of any state;" and in the opinion of the attorney general (1872; 14 Op. Attys. Gen. 63) it is said:

“It is manifest that this act was intended to apply simply to interior lines of telegraph, designed for communication between points within the United States, and not exterior oceanic lines, designed for telegraphic intercourse with foreign lands."

The filing therefore, of defendant’s acceptance, in view of the effect thereof and of the terms of the agreement between the parties, was not a compliance with the contract, entitling plaintiff to the compensation; and, even if we regard it as a step in that direction, it did not secure to the defendant all that it ought to obtain. This, we think, is conceded by plaintiff, who stakes his recovery upon the position that the letter of Mr. Gresham was a compliance with the contract, and was the only declaration which, in view of the situation and of the facts known to the parties, could possibly be obtained have been within their understanding or intention. Was that, however, all that the defendant wished and that the plaintiff undertook to secure? We think a reading of the correspondence shows that the parties at the time were in doubt as to whether the Virginia act was sufficient to confer upon the defendant the right to land its cable, and to engage in the business of telegraphy in the United States, and that both parties were impressed with the necessity of securing from the federal government .a recognition of their right under the Virginia act to do business in the United States without interference from the general government. If in this they were both mistaken, and if, upon obtaining the right from the state of Virginia, the defendant with safety could have proceeded with the laying of its cable and the transaction of its business here, then the mutual mistake into which the parties had fallen of supposing something more to be necessary would not give the plaintiff a right to enforce the terms of such a -contract in his favor as against the defendant. In other words, if with a view to enabingthe defendant to do business, the plaintiff undertook to get something which was entirely unnecessary, and which in point of fact, the plaintiff did not get, the mere ascertaining that there was no necessity for getting it would not be a compliance with the contract. What the plaintiff undertook, to use his own language, was to procure a federal official document “consecrating” the right to land the company’s cable in the United States. What.the defendant agreed to pay for was “a declaration of the federal government which assures to it the enjoyment, without restriction and un attackable, of the landing right which it holds from the separate government of the state of Virginia, * * * without obligation or prohibition to connect it at any fixed point, —in a word, unconditional.” This right, it would seem, the plaintiff concluded he could obtain from the executive department of our government,—a right which, as stated in plaintiff’s letter to Mr. Coudert of November 6th, would assure the company “against all interference, prohibitive or restrictive, by the federal government, in the exercise of the right of landing which it holds from the state of Virginia.” What plaintiff obtained—assuming, for the sake of argument, that it was secured after the agreement was entered into—was a statement from the executive department, contained in the letter of Mr, Gresham, that ‘‘there is no legislation of the United States conferring authority upon the president to grant or deny such permission, and, in the absence of such legislation, executive action of the character desired would have no binding force.” It will thus be seen that the executive department to which the application was made conferred no additional rights upon the defendant, but dismissed the application, with the statement that the president had no authority or jurisdiction over the subject; leaving the company, therefore, in the same position as it was before the application was made, with all its rights that it had received from the state of Virginia, and no others.

It is insisted, however, that this was an expression of an opinion by that department of the government which, by stating that it had no jurisdiction in the matter, removed doubt as to the possibility of its interference with the landing of the company’s cable. It may well be that this was all that could be obtained from the executive; but it was not all that the plaintiff agreed to obtain, or that the defendant had a right to expect. In the letters of Mr. Coudert, which were written in response to letters confining his attention to particular questions formulated by the plaintiff it appears that he was considering the effect of Mr. Gresham’s letter so far as it related to executive action. It that was all there was, we agree with what he says in his letter of November 9th:

“It is clear that the executive, having decided that he was entirely without authority, could not, without going beyond his powers, yield the required permission; but it is equally clear that, if the president has not the power to act in the matter, he could not, without usurping rights which he declares he does not possess interfere to the injury of the company in the enjoyment of its right of landing.

We think, however, it is giving too narrow and restricted a construction to the agreement to hold that a mere disclaimer upon the part of the executive of any authority to interfere with the company’s right to land its cable was all that the parties contemplated. The offer held out by the plaintiff, and which the defendant accepted and agreed to pay for, was a recognition and permission in some form, by that branch of the federal government having jurisdiction of the subject, of the defendant’s right to land its cable and transact business in the United States, subject to the same obligations as were imposed by congress upon other companies. If so regarded, however, we do not think that the obtaining of' Mr, Gresham’s letter was a performance of the contract between the parties. Both assumed that the executive could grant some right to the defendant, and such right was applied for. But the letter is not an assurance to the defendant, nor does it grant any permission or confer any franchise upon it. It is a statement from the secretary of state of the view that the president was. without power to grant what was asked, and was practically a refusal. As Mr. Coudert well says in one of his letters: “It is possible that a different view may be entertained by some succeeding administration of the governmentsuch a view, for instance, as might prevent the landing of the cable, or impose reciprocity conditions on the defendant, as a French corporation. Whether or not such an exercise of the president’s power or superior force would be lawful it was immaterial of the defendant to inquire. The letter has not any permanent value or effect as a judicial decision. ' Notwithstanding its existence, the executive (if the power vested in that department), or congress, by means of a general law, might impose terms or stipulations upon the defendant, as prior conditions to landing or operating the cable, which might be so onerous as practically to prohibit it, unless such terms were obeyed by the defendant.

■ We think the whole difficulty with this case is in not keeping in view what we have endeavored to point out,—that the defendant entered into this contract relying upon the mistaken views of t'ne plaintiff as to where the power lay in the general government, which, as shown by Mr. Gresham’s letter was by plaintiff erroneously represented to be in the executive. The defendant was not concerned with where such power vested, but desired an authoritative declaration upon the part of the federal government that the grant conferred by the act of Virginia might be enjoyed. And while, in the light of the present knowledge of the parties, it may be claimed that the act of Virginia alone was sufficient to confer upon the defendant all the rights it required, still this would not. give to the plaintiff a claim for the large amount, the first portion of which is sought to be obtained in this action, for obtaining what was practically of little use. If a declaration by congress, was required, it is not claimed that plaintiff obtained it.

There is much in the suggestion that electric telegraphy, by the instrumentality of submarine cables owned or operated by foreign corporations, comes under the head of “foreign commerce,” concerning which congress has exclusive power to permit, regulate, or prohibit; and, not having legislated generally on the subject, it is thus giving its silent permission that this branch of foreign commerce shall be free, subject, of course, to future legislation by congress, should it any future time see fit to exert its power. But whether congress has exclusive power in this matter, or whether, subject to such conditions as it may see fit to impose, each separate state can permit or prohibit the landing of submarine cables by' foreign corporations, it is not necessary for us to determine, though the weight of authority would seemingly be upon the side that in respect thereto congress has exclusive jurisdiction. The doubt created as to whether the state of Virginia or the federal government had the right to permit the landing of the defendant’s cable was what the parties had in contemplation to remove, and we do not think it has been solved by the letter obtained from Mr. Gresham. He but expresses the opinion of the present admininistration as to the power of the executive on the subject, and does not undertake to define the powers of congress over the subject. Who had the right was a question which the plaintiff seems to have concluded in favor of the executive; and, under this mistaken notion, he made the representations to the defendant which resulted in the agreement, the fair construction of which required that the doubt existing as to the extent of the rights conferred by the act of Virginia should be removed by some authoritative declaration of the federal government; and it was to secure this that the defendant agreed to pay the large stipulated sum.

It is contended that whether the plaintiff had secured what he agreed to or not was a matter referred to Mr. Coudert as arbitrator, and that, he having decided favorably to the plaintiff, this concludes the defendant. This contention, we think,is erroneous in its premises. Mr. Coudert was not agreed upon as an aribitrator, but he was selected by the defendant as the counsel where opinion was to be obtained upon the unconditional and unattackable character ■of the federal government’s declaration for transmission to the company. The opinion so given is clear and entirely satisfactory upon the questions with which it deals. But such opinion, instead of being an argument in favor of plaintiff, we think is strongly in favor of the defendant; for, though Mr. Coudert does state that the declaration from Mr. Gresham was all that could be obtained from ’the executive, he does not say it is an authoritative declaration, nor anything which amounts to that, in any way binding upon the federal government, or in any way conferring upon the defendant any right or franchise which before that time it did not possess. And he points out that it would not be binding even upon the executive department of the government, saying: “A direct permission [to land the cable] might have been revocable if given;” and, again : “It is possible that a different view might be entertained by some succeeding administration of the government;’’ and: “Once the cable has been laid, its operations will be subject to the authority of congress.” And his conclusion, that, “at all events, nothing further can be done to insure safely,” is entirely different from saying that plaintiff has performed on his part the conditions of the contract, and that, by a binding and authoritative declaration of the federal government, the - defendant’s Virginia landing rights are now unattackable and unconditional. Mr. Coudert is very careful in his expressions, and he clearly shows that all that plaintiff obtained was a statement that the executive had no jurisdiction in the matter. The contract, however, does not confine it to the executive, but was for the securing of a right which it defines as “an enjoyment which- cannot be attacked by it [the federal government] in any connection,” This clearly does not mean that the defendant is to be assured only against the mere likelihood or probability of executive interference, but contemplates an authoritative expression that it is to be allowed to land its cable without any conditions or obligations imposed upon it by any department of the federal government, except such as by the United States Revised Statutes are imposed on all companies.

We conclude, therefore, by saying that there is a grave question whether this letter of Mr. Gresham’s was not in existence when the contract was made, which would negative the claim that it was procured in consideration of the payment to be made by defendant; and that, apart from this, the plaintiff cannot recover, the contract having been entered into by the defendant relying upon erroneous and mistaken representations of plaintiff, which, though they may have been made in perfect good faith, were, nevertheless, untrue, as to the power of the executive to give an authoritative declaration and confirmation of.the rights which the company had secured from the state of Virginia to land its cable preliminary to its engaging in the business of telegraphy in the United States.

We think, therefore, that the exceptions should be overruled, and the motion for a new trial denied, with costs.

All concur.


author: Per Curiam.

text:
    Theresa Boas, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Municipal corporations—Public improvements.
    Where, in the construction of a sewer, a street is divided into sections which are re-divided into subsections, the commencement of work on one subsection is not a commencement of work on all of them, and such work, by reason of such commencement, is not in progress on the other subsections, within the meaning of section 91, chap. 335 of 1873.
    Appeal from a judgment in favor of plaintiff.

      George L. Sterling, for app’lt; James A. Deering, for resp’t.
   Per Curiam.

This action was brought to recover $255.61, the amount of an assessment on plaintiff’s lots situated on 147th and 148th streets, levied on account of the construction of the Boulevard sewers. October 17, 1883, the plaintiff paid this assessment without knowledge or notice of the existence of the facts which, it is asserted, render the judgment void. Section 91, c. 335, Laws 1873, provides:

“ Wherever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than one thousand dollars, the same shall be by contract, under such regulations concerning it as shall be established by ordinance of the common council, excepting such worlcs now in progress as are authorized by laiu or ordinance to be done otherwise than by contract”

The exception in italics relates to particular works in progress April 30, 1873, when the. statute took effect, which had then been authorized by law or ordinance to be done otherwise than by contract. Two conditions must have existed April 30, 1873, to bring the Boulevard sewers within the exception : (1) The work must have been in progress; and (2) it must have been “ authorized by law or ordinance to be done otherwise than by contract.” It is 'admitted in the answer that the Boulevard sewers were wholly constructed by days’ works, and not by contract; that the expense thereof was more than $1,000, and that the common council of the city did not adopt an ordinance directing the said work to be done otherwise than by contract. The Boulevard is about five miles long, and for the purpose of constructing the sewers therefor, it was divided into five sewer sections, designated as ID, 20, 12B, 13B, and 14B. Section 12B extends from 106th street to 153d street, and embraces the plaintiff’s property. This section was divided into three subsections. Work upon the subsection which includes the plaintiff’s property was not begun until after July 1, 1873, two months after the section above quoted of chapter 335, Laws 1873, went into effect, although work upon one of the subdivisions of section 12E was begun in August, 1872. In re French, 30 Hun, 83, affirmed 93 N. Y. 634, the validity of an assessment upon property embraced within this particular sub-sectian for the construction of this sewer was vacated, on the ground that work had not been begun upon the subsection prior to May 1,1873, and that the fact that work had been begun upon another subdivision of section 12B did not render the assessment valid. The case referred to, as held by the learned judge at special term, is decisive of the one at bar. See, also, In re Blodgett, 91 N. Y. 117. The plaintiff, having paid the assessment without knowledge or notice of the existence of the facts rendering it void, is entitled to recover the sum paid. Mutual Life Ins. Co. v. City of New York, 79 Hun, 482; 61 St. Rep. 250, affirmed 144 N. Y. 494; 64 St. Rep. 65.

The judgment should be affirmed, with costs.


author: Herrick, J.

text:
    Bernard J. Cuniff, App’lt, v. Harrison Beecher, as Sheriff, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Fame imprisonment—Conviction.
    A party cannot maintain a civil action for damages, for malicious prosecution or false imprisonment, where his arrest has been followed by conviction in a criminal court, which remains unreversed, unless he establishes the fact that his conviction was obtained by fraud or conspiracy, and such fraud or conspiracy must be one in which the court and the complainant participated.
    Appeal from a judgment dismissing the complaint.

      Charles H. Stage (T. F. Bush, of counsel), for app’lt; George H. Carpenter, for resp’t.
   Herrick, J.

This is an appeal from a judgment of nonsuit' rendered in the Sullivan county court. The action is one for false imprisonment. The defendant is the sheriff of Sullivan county. The defendant arrested the plaintiff in a saloon within the corporate limits of the village of Monticello, in said county, claiming that he was drunk and disorderly, and forthwith took him before a magistrate, and prefered a charge against him of being drunk and disorderly in a public place. The magistrate before whom the plaintiff was taken directed that he be committed to the county jail until next morning. The next morning the plaintiff was brought before the magistrate, and his trial proceeded with. He was found guilty by the magistrate, but sentence was suspended during his good behavior. Thereafter the plaintiff brought this action against the defendant, claiming that his arrest was illegal, and his imprisonment false, and claimed damages to the amount of $1,000. Upon the trial plaintiff adduced testimony to show that he was not intoxicated at the time of his arrest, and that such arrest was a mere exhibition of arbitrary authority upon the part of the defendant. The defendant gave evidence by himself, and by other witnesses, tending to show that the plaintiff was intoxicated at the time of his arrest. The justice before whom the plaintiff was tried was absent from the state at the time of the trial now under review, but the record kept by him of the proceedings before him was offered in evidence upon the trial, for the purpose of showing his trial and conviction ; also the minutes of the testimony taken before such justice upon such trial. The plaintiff was arrested without a warrant, and the defendant justified his arrest of the plaintiff under section 35 of chapter 401 of the Laws of 1852, which reads as follows :

“Any person who shall be intoxicated in a public place shall be guilty of disorderly conduct, may be arrested without warrant while so intoxicated, and shall be punished by a fine of not less than three nor more than ten dollars or by imprisonment not exceeding six months.”

No formal record of conviction appears to have been made out and filed, as required by sections 902 and 903 of the Code of Criminal Procedure, but the minutes of the proceedings kept by the justice, offered and received in evidence, after reciting the various proceedings taken before him, contain the following:

“After due deliberation, I did on this 4th of July, 1893, adjudge the defendant guilty of the charge of intoxication in a public place, and did suspend the sentence of the court during the good behavior of the defendant.”

Under chapter 651 of the Laws of 1893, the magistrate possessed power to suspend sentence, and the conviction of such person may be given in evidence, the same as though the sentence had been imposed. While the justice’s record of conviction put in evidence in this case would undoubtedly be insufficient for the purpose of authorizing the confinement of the then defendant, yet I think it sufficient to prove the fact that the plaintiff was convicted of the charge made against him. Under chapter 651 of the Laws of 1893, the record of conviction required to be filed by section 903 of the Code of Criminal Procedure would not naturally be filed until sentence should be imposed and the amount of such sentence set forth in such record of conviction. The fact, then, being established of the plaintiff’s conviction upon the charge made against him by the defendant, and upon which charge the defendant arrested him, the prosecution of the defendant in a civil action for damages, because of such arrest is barred. The plaintiff offered no evidence of any fraud or conspiracy between the magistrate and the defendant to procure his conviction. The evidence offered in his behalf was simply upon the question as to whether at the time of his arrest he was in fact intoxicated, and evidence of what took place between the plaintiff and the defendant at the time tending to show that the act of the defendant was a mere arbitrary and arrogant exhibition of official power ; and while I will say, in passing, that there is much in the evidence to warrant the conclusion that it was an arbitrary and uncalled for act on the part of the defendant, yet that inquiry has been foreclosed to us by the judgment rendered by the magistrate before whom the charge of intoxication was tried, and the judgment and decision at which he arrived cannot be attacked in a collateral proceeding. “A mistake concerning the just weight and importance of evidence only makes the act erroneous, and it will stand good until reversed.” Miller v. Brinkerhoff, 4 Denio, 118; Roderigas v. Savings Inst, 63 N. Y. 460-464. And the decison of the county judge refusing to submit to the jury whether, as a matter of fact, the plaintiff was intoxicated in a public place, at the time of his arrest by the defendant, was correct. I think that it is the law of the state that a party cannot maintain a civil action for damages, for malicious prosecution, or false imprisonment, where his arrest has been followed by conviction in a criminal court, and that conviction remains unreversed, unless he establishes the fact that his conviction was obtained by fraud or conspiracy, and that fraud or conspiracy -must be one in which the court and the person by whom he is proceeded against participated. Judgments of conviction in criminal cases cannot be attacked collaterally by the persons convicted. The spectacle of a convicted defendant in a criminal case securing damages in a ■civil action, because of his arrest upon the charge for which he had been criminally convicted, would destroy all respect for the law, and would paralyze those provisions of our statutes authorizing private persons to arrest for crime, and authorizing peace officers to arrest without a warrant. The person who is, or who believes himself to have been, unjustly -arrested and convicted, must procure a reversal of such judgment of conviction before he can maintain a civil action for damages. See Robbins v. Robbins, 133 N. Y. 597; 44 St. Rep. 684; Oppenheimer v. Railway Co., 45 St. Rep. 134. Judgment should be affirmed, with costs.

All concur.


text:
    Frank R. Abbey, by Guardian, etc., Resp’t, v. Jerome B. Wheeler, Impleaded, etc., App’lt

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Accounting—When action lies.
    A court oí equity will not assume jurisdiction of an action brought solely for an accounting, but, in an appropriate action, it may compel an accounting, where it is incidental and not the prime relief sought.
    Appeal from a judgment overruling a demurrer to the coipplaint.
    The complaint alleges, in substance : That in 1884 one Charles F. Abbey died, leaving a will wherein, after directing the payment of his°debts, he provided: “ Second. The residue of my estate, real and personal, I direct to be carefully invested for the benefit, of my boy Frankie, and such of the income thereof as is necessary to be used for his support during his minority, and any balance invested annually for his benefit. Third. In case of his death before arriving at full age, the property remaining to be paid, share and share alike, to my mother, Indiana Tolex Abbey, and my sister-in-law, Anna M. Heath, or their lawful heirs.” That letters testamentary were issued to the defendant Talmadge as executor, which are in full force and effect. That plaintiff is the person mentioned in the will, and the only descendant of Charles F. Abbey, who left no widow. That, at the time “ of his death, the said Charles F. Abbey was the owner in fee of one undivided fifth part of a piece or parcel of land situated in the Boaring Fork mining district, in the county of Pitkin and state of Colorado, and known as the ‘Emma Mining Claim,’ and was- the owner of an undivided two-thirds of a lease for one year from November 20, 1883, of the remaining four-fifths of said mining claim, and that one Nevitt was the owner of the other undivided third part of said lease.” That the defendant Jerome B. Wheeler became the owner in fee of the said undivided four-fifths of said mining claim, subject to the said lease. That in 1884 the said Wheeler, by some “ arrangement with the said Nevitt, the exact nature of- which is unknown by the plaintiff, took possession of said mining claim, and worked a mine thereon, and thereafter took and removed from said mine a large quantity of mineral, amounting in value, to upward of seven hundred thousand dollars, and sold the said mineral and received therefor, to the plaintiff’s use, upward of two-hundred and fifty thousand dollars.” That, although requested, Wheeler has refused to account to the plaintiff. Wherefore judgment is demanded (1) that he account for the mineral taken and. removed from the mine, and for the sales thereof; and (2) that, the rights and interests, if any, of the defendant Talmadge as executor, and of the defendant Anna M. Heath, in the premises, be ascertained and settled. The demurrer states three grounds : First, that the court has not jurisdiction of the subject of the action ; second, that causes of action have been improperly united, in that one for minerals or for an accounting in respect thereof is joined with one for the construction of a will, and the determination of the rights of parties under it; third, that the complaint does not state facts sufficient to constitute a cause of action.

      A. C. Brown, for app’lt; Treadwell Cleveland, for resp’t.
   O’Brien, J.

In analyzing the complaint, it will be found difficult to determine the theory upon which the plaintiff predicates his right to recover, whether as tenant in common of the land, or as co-owner with the defendant Wheeler in a lease. The special t§rm concluded that the suit was brought by plaintiff in his double character,—as cotenant of the land, and co-owner of the lease,— and that in this double capacity he could maintain the action for an accounting and a determination of the interests of the other persons who, in addition to himself, are named in the will of his father. There is in the complaint sufficient to justify the conclusion that the plaintiff asserts a claim to all the title which his father had in the real estate, which was, as averred, subject to a lease. There is also a statement that the defendant Wheeler became the owner in fee of the balance, but such interest is expressly stated to have been subject to the lease. There is no statement that, as owner of the fee, the defendant Wheeler ever entered into possession, the averments being that, by some arrangement with Hevitt, who had an interest with the testator in the lease, the defendant Wheeler entered into possession of the property, and removed the ore for which in this action he is called to account. We think it clear, therefore, that it is not as a cotenant in the land, but as a co-owner in the lease, that the plaintiff seeks to enforce his rights here.

It is extremely doubtful whether the plaintiff has the right to maintain such an action. Ho bequest of the testator’s interest in the mining lease is made to the plaintiff, and, though he be the sole heir and only descendant, the intérest of the testator in the lease, under the statutes of our state, in the absence of a specific bequest, would go to Talmadge, the executor, and not to the plaintiff, the heir. 2 Bev. St. p. 82, § 6, subd. 1. It is not necessary, however, for us to determine the question, because there is a fatal objection to this complaint.

The plaintiff, in either or both capacities, brings this action for an accounting, and for a determination of the interests of himself and others under the will of his father. Under the authorities, we do not think such an action can be maintained, for the reason that a court of equity will not assume jurisdiction of an action brought solely for an accounting, but in an appropriate action it may compel an accounting where that is incidental, and not the prime relief sought. The cases of Ludlow v. Simond, 2 Caines, Cas. 1, and Post v. Kimberly, 9 Johns. 470, though cited in support of the right to maintain such an action, are really authorities for the proposition which we have stated. Ludlow v. Simond was a case where the relief sought was the enforcement of a guaranty, and, as incidental thereto, an accounting. Post v. Kimberly was an action for a discovery. In the former case the chancellor made some general statements as to the jurisdiction of a court of equity in all actions of accounting ; and whether we regard those as mere obiter dicta or a summary of the authorities as they then stood, the later cases in England and in this country do not support the statement there'made, that equity has assumed and wiíl assume jurisdiction in all actions of accounting.

As said in Marvin v. Brooks, 94 N. Y. 80:

“The basis and extent of the equitable jurisdiction over matters of account appears to have been seldom considered in our courts, but often discussed in the English authorities. * * * The best considered review of the authorities puts the equitable jurisdiction upon three grounds, viz. the complicated character of the accounts, the need of a discovery, and the existence of a fiduciary or trust relation. * * * The necessity for a resort to equity for the first two reasons is now very slight, if it can be said to exist at all, since a court of law can send to a referee a long account, too complicated for the handling of a jury, and furnishes by an examination of the adverse party before trial and the production and deposit of books and papers almost as complete a means of discovery as could be furnished by a court of equity. But the jurisdiction of the latter court over trusts and the fiduciary relations which partake of that character remains, and in such cases the right to an accounting seems well established, but the existence of a bare agency is not sufficient. If it was, it would draw into equity every case of bailment in which an account existed."

Here there is no suggestion that, as between the plaintiff and Wheeler, there is a fiduciary or trust relation ; nor are there any averments which, under the authorities, have been held sufficient to entitle the plaintiff to the relief sought. Upon allegations from which the inference is to be drawn that he is co-owner in the fee or lease, the plaintiff brings this action simply for an accounting, which, as we have endeavored to point out, we do not think, on the authority of Marvin v. Brooks can be maintained.

Our conclusion in no way affects the right of whoever is entitled to do so to compel the defendant Wheeler, in an appropriate action, to respond for the mineral which he has taken and sold, if this has been done without right and authority. And whatever may have been the rule at common law against the right of one co-tenant to compel another in possession to respond for the value of the premises occupied by him, for the rents and profits which he may have received, or for waste permitted or suffered, this must be regarded, as long as the case of McCabe v. McCabe, 18 Hun, 153, remains the law, as settled in this state. That was an action brought for the partition of lands on which there was a stone quarry, and -is authority for the proposition that a tenant in common wh'o is made a defendant may set up in his answer that the plaintiff has been in possession of the premises, has collected the rents thereof, and quarried and sold stone therefrom, and may require an account to be rendered of the moneys so received by the plaintiff, and have an allowance made to himself therefor. As therein said:

“It may be necessary to adhere to the rule that for mere occupancy the co-tenant shall not be liable to account But there is no reason to extend that rule to a case where the co-tenant actually consumes or takes off and disposes of a part of the property held in common.”

While, therefore, in suits for the partition of land, or other appropriate actions at law between tenants in common, wherein it is made to appear that one or the other has consumed or destroyed part or all of the property held in common, he will be obliged to respond therefor to his co-tenant, this is far from saying that an equitable action solely for an accounting can be maintained by one co-tenant against another, who lias been guilty of appropriating or taking away some portion of the property owned by them in common. The inhibition against the right to bring an action simply for an accounting is, of course, not confined merely to co-tenants, but applies to every relation which may be established between persons ocher than fiduciary or trust relations. It is only between persons who stand "in the latter relation that an action simply for an accounting can be maintained; and while in other appropriate actions a court of equity may compel an accounting, where that is incidental, and not the primary relief sought, it will not assume jurisdiction, except in the cases mentioned, of a simple action for an accounting. It may be that the policy which for a long time has prevailed of not regarding forms of action may in time destroy the force of the rule as laid down in Marvin v. Brooks. And there would seem to be no good reason for permitting a tenant in common, though the relation between him and his co-tenant may not be fiduciary or trust, when sued, to require an accounting for mineral removed and sold from a mine, and yet denying him the right to maintain an action on his own behalf against the person so using the joint prqperty for an accounting, We do not regard it, however, as an open question, or one that calls for discussion, holding as we must, under the authority of Marvin v. Brooks, that the facts here presented make an insufficient showing for the assumption of jurisdiction by a court of equity in this action, which is brought solely for an accounting.

The judgment, therefore, must be reversed, and the demurrer sustained with leave to plead over, on payment of costs in the court below and of this appeal.

Parker, J., concurs ; Van Brunt, P. J., concurs in result.


author: Van Brunt, P. J.

text:
    James Hedges, App’lt, v. William H. Payne et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Arrest—Execution—Release.
    Section 572 of the Code does not authorize an order relieving the debtor from imprisonment under an execution, where he was arrested under an order of arrest and has procured his discharge by giving an undertaking for the delivery of the chattels sued for.
    Appeal from an order, allowing a supersedeas and relieving the defendant from imprisonment under an order of arrest and execution against his person.

      Henry E. Howland, for app’lt; Arthur H. Smith, for resp’ts.
   Van Brunt, P. J.

This action was begun in the year 1888, to recover possession of certain personal property, or the value thereof, in case delivery could not be had. On the 12th of January, 1888, an order of arrest was issued against the defendant Payne, and he was arrested thereunder. Subsequently Payne gave an undertaking under subdivision two of section 575 of the Oode of Civil Procedure, the defendant having been released by the sheriff previously under an improper undertaking. The defendant Payne having answered, the issues thus raised were tried, and a verdict rendered for the plaintiff, on the 10th of April, 1891, and on the 8th of May', 1891, final judgment was entered in favor of the plaintiff against the defendant. On. the 6th of J une, 1891, the defendant Payne appealed to the general term. Judgment of affirmance was entered in March, 1892. The defendant gave no undertaking upon this appeal. On March 30, 1892, execution against the specific property was issued, with the alter,native directions required by section 1731 of the Code of Civil Procedure. This execution was returned unsatisfied April 29, 1892. On June 30, 1892, an execution against the person of the defendant Payne was issued, and returned, ‘‘ Not found,” August 27,1892, and kept alive by other executions until May 3, 1893. On the 16th day of November, 1894, the defendant Payne obtained an order to show cause why he should not be relieved from imprisonment under the order of arrest above mentioned, or any execution against him, issued or to be issued. This motion was granted, and from the order granting the same this appeal is taken.

The motion was made under section 572 of the Code of Civil Procedure, which is as follows :

“ Except in a case where an order of arrest can be granted only by the court if the plaintiff unreasonably delays the trial of the action, or neglects to enter judgment therein within ten days after it is in his power to do so, or neglects to issue execution against the person of the defendant within ten days after the return of the executions against the property, and in- any event neglects to issue the same within three months after the entry of the judgment, or whenever it shall appear to the satisfaction of the court that the plaintiff in an action or a judgment creditor in a judgment delays the enforcement of his remedies therein by collusion, or for the purpose of allowing the debtor to remain in prison under the mandate in any other action before the issuing of the mandate in favor of such creditor, so as to produce a continued and extended imprisonment by virtue of the separate mandates in the different actions, the defendant must, upon his application made upon notice to the plaintiff, be discharged from custody, if he has already been taken under the mandate against him in .such action; or, if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such' mandate by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section should not be arrested upon an execution issued upon the judgment in the action.”

It would seem that this section has no application to executions, except in respect to such as may be issued in cases where a defendant had been discharged pursuant to this section. It was intended to relieve from arrest under orders of arrest where the diligence required by the statute was not used by the plaintiff in charging the defendant by execution. The relief to be granted seems to show that this must be the interpretation of the section. If the defendant has already been arrested, he must be discharged from arrest; if not, he is to be relieved from imprisonment by virtue of the order of arrest. The word “ mandate” is used (elegance of language seemingly being considered of more importance by the codifiers than precision of expression), but it is evident that the mandate referred to is the order of arrest mentioned in the beginning of the section. The defendant in this action had been arrested, and consequently the second provision did not apply. Neither can the first apply, because the defendant had already been discharged from arrest by the giving of the undertaking to deliver the chattels sued for, or pay the sum recovered. The sureties under such an undertaking have no power to surrender their principal (section 591), and the defendant was not even constructively in custody, as he would have been had the bail such power. There was no situation, therefore, to which section 572 could apply. The court could not discharge the defendant from custody when his discharge had already taken place, and the defendant was not in custody. Neither could the other relief provided for by the section be granted, because the defendant had been imprisoned. The order appealed from must be reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.


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    Howard Cooper, Resp’t, v. Manhattan Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    1. Evidence—Judicial Notice.
    The court will take judicial notice of the size of lots in New York city, and that the buildings on corner lots in the business portions frequently cover the whole lot.
    S. Damages—Elevated railway.
    Where a corner, lot is covered by two buildings, one of which fronts on the street on which the line of track is laid and the other on a side street, and it appears that, when the lot is improved, a single building, covering the whole lot, will probably be erected, damages to the entire premises may be awarded.
    Appeal from a judgment in favor of plaintiff.

      Arthur O. Townsend, for app’lts; Edwin M. Felt, for resp’t.
   Per Curiam.

The premises in question are situated on the northeasterly corner of the Bowery and Houston streets. There is an elevated railroad station there, the stairs going down into Houston street. The premises for which damages were given were known as “No. 281 Bowery” and Nos. 92, 94, and 96 East Houston street.” No. 281 Bowery was a three-story frame building, with a orick front twenty-three feet on the Bowery, and thirty-two feet on the street. Nos. 92, 94, and 96 Bast Houston street were two-story brick stores, twenty-two feet deep by about tilinteen and a half front. No rental damage was allowed, but fee damage to the amount of $5,000 was given. The only question necessary to be considered is the point made that Nos. 92, 94 and 96 East Houston street did not abut upon the elevated railroad, and therefore no damages could be awarded as to them. Under ordinary circumstances, of course, this would be a bar to recovery. But the improvements upon the lot in question are entirely different from those which would be suitable for the value of the lot, and, when the lot comes to be improved, undoubtedly a single building will be erected covering the whole of the premises in question, and fronting on the Bowery. The court may take judicial notice of the fact that lots in the city of New York arc ordinarily at least seventy-five to one hundred feet in depth, the buildings on comer lots frequently covering the whole lot in the business portion of the city; and, although these premises may be divided in the manner stated for the purpose of occupancy, yet in reality the buildings are upon the single lot fronting upon the Bowery. It would seem, therefore, that in determining the question as to whether it had sustained fee damage it should be treated as a single lot. While an examination of the testimony, showing, as it does, a large increase in value of the premises in question, might have led ns to the conclusion, if the question of damages had originally been presented to us, that the plaintiff had not shown himself entitled to any damage, we think that, in determining the question as to whether the case shows that any damage has been sustained, we should bear in mind that the court below had the witnesses before it, and heard their testimony, and was better able to judge of the weight of such testimony than we, who have simply the printed record before us. It seems to us, however, that the award which has been made is higher than any of the evidence justifies, and should be reduced to the sum of $2,500. If the plaintiff stipulates to reduce the damages to the-sum of $2,500, the judgment appealed from, as so reduced, should be affirmed, without costs. If such stipulation is not. given, the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event


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    Frederick Eder, Resp’t, v. Seth H. Gildersleeve et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Contract—Consideration.
    An undertaking, given as a condition for denying a motion for an attachment for contempt of court. to pay any judgment that might be recovered in the action, is supported by a sufficient consideration.
    Appeal from a judgment entered on a verdict in favdr of plaintiff.

      B. E. Valentine, for app’lts; James Flynn, for resp’t.
   O’Brien, J.

No order denying a motion for a new trial was made or entered, and as the facts, therefore, are not before us for review, we are confined on this appeal to the judgment and exceptions. It appears that the Lawrence Beach Company, in 1887, brought an action against their lessees of an hotel, and recovered judgment on the 27th day of February, 1890, for $1,985.18. Pending that action, a receiver of the property and income of the hotel was appointed, to whom the lessees were directed to deliver certain books and property, which they refused to do. Being proceeded against as for a contempt, they offered and were permitted, upon the motion to punish them, to ^ive an undertaking, with two sureties, to pay any judgment that should be recovered in the action. The court directed that, if such undertaking was given, the motion for an attachment as against them should be denied. These defendants became the sureties upon such undertaking, under which they obligated themselves to pay all costs and damages that might be awarded in the action pending, not to exceed $2,200. Evidence was given tending to show that prior to the judgment this undertaking was assigned to the plaintiff, who had become the attorney for the Lawrence Beach Company a short time after it had commenced its action against the lessees, the consideration for such assignment being his services as attorney and counsel in that and other actions. In 1890, judgment was recovered against the lessees, and execution issued, and returned unsatisfied; and after that this suit was brought against the defendants upon the undertaking.

On the trial the defendants relied upon the following defenses: (1) That the assignment had not been actually made to the attorney, as claimed by him, and that the instrument produced on the trial was an afterthought, and procured because of the appointment, of a- receiver of the corporation; (2) that the assignment, even if executed in 1888, as claimed by the plaintiff, was not merely voidable, but absolutely void, under the terms of the statute then in force, which prohibited the transfer by a corporation which had refused payment of its written obligations of any of its property to any officer of the corporation, and which made every transfer in contemplation of insolvency absolutely void; (3) that the contract claimed by the plaintiff as an assignment was subject to the offset of contract obligations held by the defendants against said plaintiff corporation before they had any notice of such assignment; (4) that the instrument upon which the action was based was void for want of consideration; (5) that the cause of action stated in the complaint was one, not in favor of the plaintiff, but in favor of the company. Whether any pf these is shown on this appeal to have been sustained is the question presented.

1. Not only was the first defense disposed of by the verdict, but, as it involved a consideration of the facts, it is not before us for review.

2. The answers to the second defense are that the plaintiff was not an officer of the company. There is no evidence that the company was insolvent in 1888, when the assignment was made; and the illegality is not pleaded. The only place where the question seems to have been raised was on the request to charge, and we think the trial judge correctly ruled that there was no force in the defendants’ contention. Apart from this, to determine the validity of the assignment, the facts would need to be reviewed, which, as already said, are not before us.

3. The third defense—that the plaintiff’s claim was subject to an offset in the shape of a judgment obtained against the company in 1891—is disposed of, even if we regard it as properly pleaded, by a consideration of the dates, from which it appears—assuming the plaintiff’s claim to be true, and which was so regarded by the jury—that the plaintiff obtained his assignment long before the defendants got judgment or sued or had a cause of action. Code Civ. Proc. § 502.

4. The instrument shows that there was a consideration, in that ■the defendants offered to give the undertaking to secure any judgment, which was accepted by the company, the undertaking itself having been directed by the court as a condition for denying the motion for an attachment. The recitals therein are: “If such an undertaking be given and approved, * * * the motion for an attachment may then be denied by an order to that effect.’’ Whether an order denying the motion was entered or not can make no difference, the motion so to enter being a matter which more nearly concerns the parties proceeded against, or their sureties, and was something for their benefit, which they could do or omit to do; and, for their failure, the company or the plaintiff here could not be regarded as having lost any rights. Or, differently expressed, as shown by the facts and. the situation of the parties which led up to the giving of the undertaking, the defendants were being proceeded against as for a contempt. To terminate this proceeding, and releas'e themselves from the possibility of an adverse order, they offered to give an undertaking to pay any judgment that might be recovered by the company. This offer being made, the ■court decided that the giving of such an undertaking should lead to a denial of the motion, and that an order should be thereafter -entered to that effect. In pursuance of such determination, and the order entered thereon, the parties proceeded against caused the undertaking to be executed and delivered to the. company, which .accepted it, as it was authorized to do by the order which was the outcome of the application upon the proceeding for contempt. After its acceptance by the company, the defendants were at liberty to enter an order denying the motion for an attachment, and their failure to do so cannot affect the undertaking which was given and accepted upon what we deem to have been sufficient consideration. The further insistence that there was no statute requiring such an undertaking to be given's without force, because this undertaking was good at common law; and, being based upon a sufficient consideration, it is binding on the sureties.

5. As to the fifth defense, it is true, as already said, that this was not a statutory undertaking, and did not run to any party of the second part; but the reasonable construction is that it was an ■agreement to pay a judgment if recovered by the Lawrence Beach Company, and, the claim upon which such judgment was after-wards founded being the property of the company, it was assignable ; and having been assigned, together with the undertaking, to the plaintiff, the judgment based thereon became as much the property of the plaintiff under the assignment, and as clearly enforceable by the assignee, as it would have been by the company if no assignment had been made.

These defenses disposed of, there remain to be considered the exceptions taken to rulings upon evidence. It is claimed that the court erred in admitting the assignment of the claim to plaintiff, upon the ground that it was a void instrument, because it was not shown to be the act of the corporation by proof of the resolution which authorized such assignment The difficulty with this objection is that it was not taken in the court below when the assignment was offered in evidence. It was then objected to as incompetent and immaterial. That it was neither clearly appears. The assignment itself was under the seal of the company, and signed by its president, and in the acknowledgment is the sworn statement of that officer and the signature and the seal were affixed by order of the board of trustees of the corporation. If it was sought to challenge the accuracy of this statement of the president, it should have been pointed out on the trial, so that the trial judge could have his attention called to the point of the objection. In other words, if the proper foundation in appellants’ view had riot been laid for its introduction, this should have been called to the court’s attention ; and then, if the objection was sustained, further proof might have been produced. Such a question was not raised in the trial court by an objection that it was incompetent and immaterial. Gonsidesing this, as well as the other exceptions presented, we find no error which would justify our interfering with the judgment, which we think should be affirmed, with costs.

Van Brunt, P. J., dissents; Parker, J., concurs.