author: Finch, J.

text:
    Albrecht J. Lerche, App’lt, v. William M. Brasher, as Adm’r, etc., Resp’t.

      (Court of Appeals,

      Filed January 18, 1887.)

    1. Witness—Examination on party—To what extent allowed—Code, Civil Pro., § 829.
    Action was brought by plaintiff to recover for services rendered by him as attorney and agent to the defendant’s intestate. Upon the trial plaintiff" was asked whether he had been paid. Defendant objected to this question on the ground that it involved a personal transaction with decea ed. The objection was overruled and the witness answered “Mo.” A certified transcript of a power of attorney from the deceased to the plaintiff was also offered in evidence and was objected to as secondary evidence and as no proof of the original. It was admitted by the trial court, saying: “It is no proof that deceased executed it; it is simply proof that a paper of the kind is on record.” Plaintiff then testified, without objection, that he had had the original but had lost it. The certified transcript was then read in evidence under an objection that there was no proof that deceased had ever executed it, and that it was incompetent. The proof tended to show that the deceased owned land in Mew York county. PL intiff was permitted to state in detail the services rendered under an objection i hat such proof necessarily involved a personal transaction with deceased. The question under which the testimony was objected to or as given, was: “ What was done by you, excepting personal transactions or communications with deceased from the time )-ou commenced your labor to the time of his death ? ” Plaintiff’s employment by the deceased was proved by the uncontradicted evidence of third parties. Held, that while answer, “ Mo ” negatived a personal transaction 'with deceased, being equivalent to a declaration that neither the deceased nor tlie administrator had paid for the services rendered, and that the objection was a good one; in the absence of any other evidence on that subject the answer was wholly immaterial, and that a judgment should not be reversed on such a narrow ground.
    2. Same—Certified transcript properly received — Code Civil Pro., § 933.
    The certified transcript of the record of the power of attorney was properly received under 2 Rev. Stat. (6th ed.), p. 1161, § 73, and § 933, Code Civil Procedure.
    3. Same—When plaintiff may state the things which he did.
    When the employment by the deceased is proved by other evidence than that of the plaintiff, the latter may state the things which he did, provided such acts could have been done in the absence of the deceased, and without his immediate or personal participation. The question to the plaintiff above quoted was proper in form, and if any objectionable proof was proffered under it, it was the defendant’s duty to object specifically and move to strike out so much of the answer as exceeded the legitimate scope of the inquiry.

      Q. A. Clement, for App’lts; Thomas E. Pearsall, for resp’t.

       Reversing 37 Hun, 385. This decision also overrules Howell v. Van Siclen (6 Hun, 115), and in effect seems to adopt the opinion of Ch. J. Davis in that case and also sustains Burrows v. Butler (22 Week. Dig., 489), and McKenna v. Bolger (22 Week. Dig., 361).

   Finch, J.

The plaintiff brought this action claiming to recover about $2,600 as compensation for services rendered to the defendant’s testator in the character of his agent and attorney. The contract of employment was proved beyond all question, by evidence - wholly uhcontradicted, and of a kind open to no criticism. The services rendered began a few days before January 14, 1880, on which day the plaintiff collected a judgment of about $500 in favor of Van Wyck. On that day the latter by a written instrument, the signature to which was proven and not questioned, appointed plaintiff his “attorney in fact” for all matters pertaining to two actions which were specified. That the employment was earlier than that is evident from a letter of Van Wyck dated December 30,1879, in which he speaks plainly of the existing relation. Other letters are quite as decisive, and on the 10th day of February, 1880, Van Wyck gave plaintiff a general power of attorney covering substantially the transaction of all his business. The employment was further proved by at least one witness who swore to the statements of the testator to that effect.

The general character of the services contracted for and rendered was also shown by evidence outside of anything which fell from the plaintiff. The property of the testator had been taken from him on account of his intemperate habits and placed in the hands of a committee. Van Wyck had become restored to health and capacity and entitled to receive back and manage his property. The committee had placed the estate in the hands of Morris & Pearsall, his attorneys, and in a letter, dated February twenty-seventh, Van Wyck notifies plaintiff that they had agreed to deliver the papers if he (Van Wyck) would care for them, and adds: “I shall not go, and so shall answer. They shall settle with you alone.” That they did so settle the defendant himself proved. The amount of property thus delivered over was about $28,000. The defendant also proved the payment of the Walsh mortgage of $5,500, and the interest upon it, to plaintiff. There was thus clear evidence of the employment and the general naturg of the services rendered outside of any testimony given by the plaintiff in his own behalf. A verdict was rendered in his favor for $750, or about one-quarter of his claim. A motion was made upon the minutes and the exceptions taken to set aside the verdict, and for a new trial, which was granted upon two grounds relating to the admission of. evidence. On appeal the general term affirmed the order, but for other and different reasons.

The trial judge specified two such errors as the ground of his action. On the hearing, after the plaintiff had described the work he had done, he was asked if he had been -paid for it. To this inquiry the defendant objected as involving a personal transaction with the deceased. The objection was overruled, an exception taken and the witness answered “No.” The answer negatived a personal transaction with the testator and was equivalent to a declaration that neither the deceased nor his administrator with the will annexed had paid for the services rendered. But while the objection was a good one, the evidence was wholly immaterial. The plaintiff was not required to prove the negative and payment was an affirmative defense, the burden of establishing which was upon the defendant. No evidence in that direction was offered or given, and striking out the inadmissible answer would in no possible respect affect the result reached. We ought not to reverse a judgment on so narrow a ground.

The trial judge further held that it was error" to admit the transcript from the register’s office of New York of Yan Wyck’s power of attorney. When first offered it was objected to as secondary evidence and as no proof of the original. The court said “it is no proof that Yan Wyck executed it; it is simply proof that a paper of this kind is on record; ” and thereupon overruled the objection and defendant excepted. The plaintiff then testified, without objection, that he had had the original in his possession, but had lost it, and on a careful search had been unable tó find it. At a later period of the case tho power of attorney was read in evidence, against an objection that there was no proof that Van Wyck ever executed it and the paper was incompetent.

By the Revised Statutes (vol. 2 [6th ed.], p. 1151, § 73), a power of attorney authorizing, as did the one in question, the conveyance of real estate, may be recorded in the clerk’s office of any county in which the land affected is situated, and the record be received with like effect as a conveyance. My first impression was that there was not sufficient proof that Yan Wyck owned land situated in New York county, but a careful reading of the evidence shows that, while the proof was not direct and pointed, there is an abundance of it from which the natural and necessary inference of such locality follows. The Code provides (§ 933), that a transcript from a record kept “pursuant to law ” in a public office of the state whose incumbent has an official seal, when properly certified by the officer, is evidence, as if the original was produced. Under these provisions the transcript was properly received in evidence.

The general term in affirming the order for a new trial placed no reliance upon the objections thus considered, but rested its action upon the much more serious ground that the plaintiff was permitted to state in detail the services he rendered in the face of an objection that such proof involved a personal transaction with the deceased. The trial judge stated distinctly and carefully what he intended to' rule. He said that the plaintiff could not testify to an employment or request, but where that was proved by other evidence the party might describe simply the things which he did, provided such acts could have been done in the absence of deceased and without his immediate or personal participation. Acting upon this basis the court excluded all evidence of visits to Van Wyck’s residence or of facts-which Van Wyck, if living, could have directly contradicted by his own oath, and limited the proof to independent facts. These were that plaintiff collected the Erie judgment, the Walsh mortgage and the assets in the hands of the committee, and to effect those results made certain calls upon- the committee and his attorneys, and examinations of records in other counties.

The only objection taken was a general one to the question with which the inquiry began, and that question was “what was done by you—excepting, of course, personal transactions or communications with the deceased, Mr. Van Wyck—from the time you first commenced your labor down to his death ? The objections were thus phrased “as incompetent and calling for transactions with deceased.” The question was proper in form. It called for no objectionable proof, and if any was proffered under it the defendant’s duty was to object specifically and move to strike out so much of the answer as exceeded the legitimate scope of the inquiry. Nothing of this kind actually and in terms occurred. The only further objection taken to the evidence under the provision of the Code was to the inquiry .“how much time ” his detailed services occupied ?

At the close of the case there was an exception to the charge to the jury, in which the judge explained the reasons why he permitted the plaintiff to testify to what he did. Whether those reasons were sufficient or in all respects correct was immaterial. The sole question was whether any of the evidence objected to and admitted was competent under the Code. Some of it we think was. Possibly one objection might be treated as a motion to strike out an answer. To the inquiry proper in form because excluding personal transactions or communications, the witness said: “I went to Morris & Pearsall’s office and got the papers in the case of Van Wyck, by committee, against Ostermyer and Brasher, and went to Albany to prepare the case with Judge Hand for the court of appeals.” The record adds: “ Objection to this evidence renewed, as calling for a transaction with the deceased.”

If we indulge in the_ latitude of treating this, which is the sole specific objection taken, as fairly equivalent to a motion to strike out, we are still of opinion that the two facts related were independent facts, in which the deceased was not personally participator and which if living he could not for that reason have contradicted. They might have been done without his authority or knowledge as were some other acts of the plaintiff, and did not necessarily involve a personal transaction with him. When that inquiry arose by reason of his employment or request the mouth of the witness was closed. If that employment or request in any manner or to any extent rested upon an inference drawn from the character of the acts done, the evidence would be incompetent. But no such error was committed. The jury were expressly warned against it and told “before you can find the fact of the employment you must be satisfied of it by testimony other than his own.”

On this state of the record we think the ruling of the trial judge was not erroneous, and especially for the reason that the facts specifically challenged were substantially proved by the deceased’s own written communications.

The general term intimated a doubt whether defendant’s counter-claim was not erroneously excluded. The court admitted the facts as a defense and excluded them as a counter-claim, and with this ruling the defendant seems to have been contented for he took no exception.

The orders appealed from should be reversed, and the judgment for plaintiff ordered on the verdict, with costs. AJI concur, except Raparlo, J., not voting.


source: Caselaw Access Project

author: Ruger, Oh. J. Huger, Ch. J.

license: Public Domain

text:
    George Lahr, Resp’t, v. The Metropolitan Elevated Railway Company, App’lt. Emily Wagner, Resp’t, v. Same, App’lt.

      (Court of Appeals,

      Filed February 1, 1887.)

    1. Railroad corporations—Abutters upon streets—When and to what EXTENT ENTITLED TO DAMAGES—ELEVATED RAILROADS IN NEW YORK.
    Abutters upon public streets in cities are entitled to such damages as they may have sustained by reason of a diversion of a street from the use for which it was originally taken and its illegal appropriation to other and inconsistent uses.
    3. Same—Rule of Story case applied.
    The rule of the btory Case (90 N. Y., 133) “that an elevated railroad is a diversion of the street to a use inconsistent with street uses,” applied to streets opened under the act of 1813.
    3. Same—Dissemination of noxious and unwholesome elements.
    The dissemination through the air of noxious and unwholesome elements, such as gas, smoke, dust, cinders, ashes, etc., is such a taking of property as entitles the party injured to compensation under the constitution.
    4. Same—Nuisance—Agreement of parties as to permanency of.
    Where both parties agree in an action for damages for a continuing nuisance that the nuisance will be permanent and try the case on the theory that recovery can be had once for all, and both request the court to direct the jury in accordance with that assumption, one party cannot subsequently seek a new trial, although that assumption is erroneous under the decision in the dine Cuse (101 N. Y., 98).
    5. Same—Extent of recovery.
    In an action for damages against an elevated railroad, for an illegal use of the s'reet, the plaintiff can recover for the operation of the road as well as for the maintenance of the structure and for the consequences flowing therefrom in respect to the manufacture and distribution in the air of gas, smoke, steam, dust, cinders, ashes and other unwholesome and deleterious substances.
    6. Same—Unlawful use of street a trespass.
    An unlawful use of a street constitutes a trespass, although the use is authorized by statute.

      The action was tried as a common law action, before Hon. George M. Yah Hoesen, of the court of common pleas for the city and county of New York and a jury.
    • The case was submitted to the jury, who found a verdict for the plaintiff for $1,957.50. The defendant moved upon the minutes of the judge .for a new trial and to set aside the verdict, upon the exceptions taken, and because the verdict was for excessive damages, was contrary to evidence, and was contrary to law. The motion was denied and an order entered to that effect.
    From this order and the judgment entered on the verdict, the defendant appealed to the general term, which affirmed both the judgment and the order. No opinion was rendered. From the judgment and order entered by direction of the general term, the defendant appeals to this court.

      Inglis Stuart and G. Willett Van Nest, for resp’t; David Dudley Field, Julien T. Davies & Edward S. Sapallo, for app’lt.
   Ruger, Oh. J.

This action is the sequel of the Story Case, and its defense seems to have been conducted upon the theory of securing a re-examination of the. questions then decided, and in case that effort should prove fruitless, of limiting and restricting, as much as possible, their logical effect.

The endeavor to secure a re-examination of the doctrines of that case must fail, since the decision there made embodied the deliberate judgment of the court, pronounced after the most careful and thorough consideration, and after two arguments at the bar, made by most eminent counsel, had apparently exhausted the resources of learning and argument in the discussion of the questions presented. ,

It would be the occasion of great public injury, if a determination thus made should be inconsiderately unsettled and suffered to again become the' subject of doubt, and thence of renewed discussion.

The reasons advanced by the able counsel for the appellant to induce us to reconsider that case, seem to us to be insufficient to render it wise or expedient to do so. The doctrine of the Story Case, therefore, although pronounced, by a divided court, must be considered as stare decisis. upon all questions involved therein, and as establishing the. law, as well for this court as for the people of the state,: wherever similar questions may be litigated. )

Wherever, therefore, the principles of that case logically lead us, we feel constrained to go and give full effect to the. rule therein stated, that abutters upon public streets in, cities are entitled to such damages as they may have sustained by reason of a diversion of the street from the use - for which it was originally taken and its illegal appropriation to other and inconsistent uses.

The case is not only upon the questions which it expressly decides; but also upon all such as logically come • within the principles therein determined.

It is, therefore, unnecessary to enter into a general dis- - cussion of those questions, but after restating such propositions therein, as seem to be controlling in this case, we -shall simply refer to some alleged distinctions between the present case and the Story Case.

We hold that the Story Case has definitely determined:

First. That an elevated railroad, in the streets of a city, operated by steam power, and constructed as to form, equipments and dimensions like that described in the Story ease, is a perversion of the use of the street from the purposes originally designed for it, and is a use which neither the city authorities nor the legislature can legalize or sanction without providing compensation for the injury inflicted upon the property of abutting owners.

- Second. That abutters upon a public street, claiming title -to their premises by grant from the municipal authorities, who at the same time covenant that a street to be laid out in front of such property shall continue forever thereafter for the free and common passage of, and as public streets and ways for, the inhabitants, and all others passing and returning through or by them, in like manner as the other streets of the same city now are, or lawfully ought to be, acquire an easement in the bed of the street for ingress and egress to- and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of their property situated thereon.

Third. That the ownership of such easement is an interest in real estate, constituting property within the meaning of the term, as used in the constitution of the state, and requires compensation to be made therefor, before it can lawfully be taken from its owner for public use.

Fourth. That the erection of an elevated railroad, the use of which is intended to be permanent, in a public street, and upon which cars are propelled by steam engines, generating gas, steam and smoke, and distributing in the air, cinders, dust, ashes and other noxious and deleterious substances,- and interrupting the free passage of light and air, to and from adjoining premises, constitutes a taking of the easement, and its appropriation by the railroad corporation, rendering it liable to the abutters, for the damages thereby occasioned to their property.

The jury in this case, under the instructions of the court, have found upon evidence, which justifies the finding, that the structure of the defendant, in Amity street, in connection with the running of cars thereon, propelled by steam engines, with the consequences naturally flowing therefrom, constitutes an employment of the street for purposes not originally designed, and a perversion of its use from legitimate street purposes.

Assuming, therefore, the binding force of the decision in ■ the Story Case, we will where they are raised by sufficient exceptions, proceed to examine some distinctions claimed by the appellant, to exist between the cases.

Among other things, it is claimed that the Story Case is an authority, only where abutting owners hold title to their property, under conveyances similar to that of Story’s, and that abutters claiming title under any other tenure than that of a deed, from a municipality, containing covenants, protecting the street from any other use than that of a public street, do not come within the principles there determined.

This claim, we think, is not well founded.

We are of the opinion that no legal difference exists with reference to the interest acquired by abutting owners in a public street, between that afforded by a title conferred under such a deed as Story had, or that acquired through a series of mesne conveyances from the 'original owner, whose property was taken by proceedings in invitum instituted by the municipality under a public statute, to acquire land for street purposes, which provided that the land thus taken should be in trust, nevertheless, that the same be appropriated and kept open for or as part of, a public street, etc., forever in like manner as the said public streets, etc., in the said city are, and of right ought to be.

Such proceedings created not only a valid trust in the city for the purposes expressed, which would preclude it from authorizing any other use of the land acquired than that expressly described in the statute (Cooley on Const. Limitations, 531), but also constitutes a contract between the public and the abutting owners severally, by which the liabilities, rights and interests of the respective parties are to be measured and the enjoyment of their respective interests in the property (retained as well as acquired), regulated and determined. Shephard v. Mayor of New York, 13 How. Pr., 286; Matter of Commissioners of Washingington Park, 56 N. Y., 144; Matter of Rhinebeck and Connecticut R. R. Co., 67 N. Y., 242.

It is not essential to the acquisition of an abutter’s rights, that any land for the bed of the street should have been originally taken from him, for whether it be so or not, he is a party to the proceedings to appropriate the land for a street and hable to be assessed for its benefits, and therefore entitled to enjoy them. Upham v. Worcester, 113 Mass., 97. He acquires his interest in the land taken, by the same tenure by which parties to a partition proceeding acquire theirs, viz.: By the judgment of a competent tribunal having jurisdiction under statutory regulations to describe and determine the rights and liabilities of the respective parties in the land to be affected. Mayor of New York v. Colgate, 12 N Y., 148; Child v Chappell, 9 N. Y , 255.

The contract created by the statute and proceedings referred to, applies to all persons entitled to be heard on the proceeding, and enures equally to the benefit of all, although they may be assessed unequally for its cost.

These differences in value are regulated by the awards of the commissioners and are intended to be apportioned as-equally as possible among the respective abutters and individuals benefited by the improvement according to the-value of the property taken and the benefits which they are supposed to derive from the street.

The claim made that the owner of property taken for a ' street obtains through the award of the commissioners, full compensation for his property, is unfounded, unless the benefits for which he is assessed are inviolably secured te him by such proceedings.

Any other construction of-the statute would render it an efficient engine of fraud and injustice.

• An abutting owner necessarily enjoys certain advantages from the existence of an open street adjoining his property, which belong to him by reason of its location, and are not-enjoyed by the general public, such as the right of free access to his premises and the free admission and circulation of light and air to and through his property

These rights are not only valuable to him for sanitary' purposes, but are indispensable to the proper and beneficial use of his property and are legitimate subjects of estimate by the public authorities in raising the fund necessary to-defray the cost of constructing the street. He is, therefore,, compelled to pay for them at their full value, and if in the next instant they may by legislative authority be taken away, and diverted to inconsistent uses, a system has been inaugurated which resembles more nearly legalized robbery, than any other form of acquiring property.

Although it may be assumed that the municipality by proceedings to open a street, acquires the fee to the land: taken, it is yet a qualified fee held in trust under the statute to a certain use, and that use cannot be departed from' without violating an essential condition of the contract, under which the land was obtained. Cooley, supra.

The right which the municipality acquires is limited by the public necessity, and in this case cannot extend beyond its use for street purposes, and all other uses which might be enjoyed therein, consistent with its use as a public street, must from necessity have remained in, and resided with, the person from whom it was taken, even after the transfer of the fee to the municipality. In the Matter of Albany Street, 11 Wend., 149; In the Matter of Pearl Street, 19 Wend., 650; Hooker v. Utica and Minden Turnpike Road Co., 12 Wend., 371; Heyward v. Mayor, 3 Seld., 314; Deerborn v. Black, 36 Barb., 136.

Even if this were not so, the covenant implied from the language of the statute, and the proceedings taken thereunder, was made with, and intended for, the benefit, among others, of abutting owners, and is a covenant which runs with the land and enures to the advantage of each successive grantee as he becomes the owner thereof.

Covenants by grantors in conveyances, to the effect that their adjoining lands shall be forever used- in such manner as not to interfere with the free passage of light and air to the premises conveyed, are effectual to create an easement over the lands retained for the benefit of the lands conveyed, and so it has been frequently held. White’s Bank of Buffalo v. Nichols, 64 N. Y., 75, and cases cited.

This easement constitutes property of which its owner cannot lawfully be deprived without receiving compensation therefor, and it was so held in the Story Case.

The act of the legislature under which the defendant was organized, and from which its authority to take the property in question is claimed to be derived, if held to authorize an interference therewith, without making compensation, is plainly obnoxious to the objection that it sanctions the taking of private property for public use, and is also in conflict with that provision of the Federal Constitution prohibiting state legislatures from passing laws impairing the obligation of contracts.

The logical effect of the decision in the Story Case is to so construe the constitution as to operate as a restriction upon the legislative power over the public streets opened under the act of 1813, and confine its exercise to such legislation as shall authorize their use for street purposes alone. Whenever any other use is attempted to be authorized they exceed their constitutional power. Those statutes relating to public streets which attempt to change their use from one proper street use to another, are obviously within the power of the legislature, and cases arising under them are inapplicable to the questions here involved.

Such are the cases in respect to changes of grade; the use of a street for a surface horse railroad; the laying of sewers, gas and water pipes, beneath the soil; the erection of street lamps and hitching posts, and of poles for electric lights used for street fighting. All of these relate to street uses sanctioned as such by their obvious purpose and long continued usage, and authorized by the proceedings under which the land is appropriated for a public street.

We also deem it unnecessary to consider those cases defining the rights of municipal corporations in lands whereof they have obtained an absolute fee by purchase or otherwise, for no such case is here presented and they are in no sense analogous to the questions under consideration. Heyward v. City of New York, 7 N. Y., 314; Rexford v. Knight, 11 N. Y., 308; De Voraigue v. Fox, 2 Bl. C. C., 95.

Neither do cases apply here which refer to the continued control retained by the legislature over grants by the state of public privileges to individuals or corporations, for these are generally conferred subject to the power of revocation and modification whenever the public interests require it, and their power over them is attributable to the reserved rights of the state in the subject of the grant. East Hartford v. Hartford Bridge Co., 10 How. [U. S.], 536.

It may also be proper to observe, without intending to discuss the case upon that theory, that it is difficult to see why this action is not maintainable within the principle recently decided by this court in Cogswell v. N. Y., N. H. and H. R. Co. (103 N. Y.,-; 3 N. Y. State Rep., 56). Certainly that case is a conclusive authority upon the question as to what constitutes a taking of property within the meaning of the constitution and of the liability of the perpetrator of such injuries for the damages occasioned by a corruption of the air through the dissemination therein of noxious and unwholesome elements, such as gas, smoke, dust, cinders, ashes, etc., to the detriment of the property of adjoining owners.

No question arises in this case as to the proper rule to be laid down for the assessment of the abutter’s damages in such an action as this, inasmuch as the parties agreed upon the rule to be adopted and have made that the law of the case.

This action was brought upon the theory that the building of defendant’s railroad, and its operation, constituted a permanent appropriation of the street for. railroad purposes inconsistent with its use for street purposes, and entitled the plaintiff to recover in a single action all of the damages occasioned to his property by such taking. The case was tried upon this theory, and the defendant admitted the permanency of the intended use, and acquiesced in the rule of damages adopted by the trial court.

Among the requests to charge made by it was that “the plaintiff can only recover such amount as has been proved to be the permanent loss in the value of his property by reason of the taking by defendant of so much of the easements of hght, air and access, as has been proved to have been taken by it.” The court followed this request and ■charged that “The question is simply how much has he (the plaintiff) lost by the taking away of his light and air, ■and for that you can give him compensation, and you can add interest to the amount if you think fit to do so.”

The charge of the court was not excepted to by the defendant, and its request, followed by its adoption by the •court, constituted a waiver of any previous exception (if any there was) conflicting with the rule laid down.

The rule of damages having been thus agreed upon, the case was taken out of the operation of the Uline Case, recently decided in this court.

The rule adopted assumes that the cause of action arose when the railroad was built and put in operation, and that the liability of the wrongdoer for the entire damage then became certain, absolute and irreparable.

The circumstance that at some time thereafter the operation of the railroad was assumed and carried on by a lessee ■or grantee of the original wrongdoer was entirely imma ■ terial on the question of defendant’s liability, and the evidence of its subsequent operation was important, only as bearing upon, the character af the road and the nature of the wrongs inflicted.

But a single question of any importance remains to be discussed, and that refers to the claim made, that the defendant is not liable for the operation of its trains and the consequences flowing therefrom in respect to the manufacture and distribution in the air of gas, smoke, steam, dust, cinders, ashes and other unwholesome and deleterious substances from locomotives ■ and trains as they move to and fro over its tracks.

We have been unable to see any reason why the defendant should not be liable for the injury thus occasioned, provided the evidence established the fact that they were destructive of the easements of fight, air, and access belonging to the plaintiff.

It follows necessarily from the proposition that a permanent structure erected in the street, which interrupts to any considerable extent the passage of fight and air, works the destruction of easements for such purposes, that any incident of the structure which necessarily increases and aggravates the injury must be subject to the same rule.

No partial justification of the damages inflicted by an unlawful structure and its unlawful use, can be predicated upon the circumstances that under other conditions and through a lawful exercise of authority, some of the consequences complained of might have been produced without rendering their perpetrator hable to damages.

The structure here and its intended use cannot be separated and dissected and it must be regarded in its entirety in considering the effect which its produces- upon the property of the abutter. However the damage may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass, rendering the wrong-deer hable for the consequences of his acts.

The legislature, as we have seen, had no power to authorize the street to be used for an elevated steam railroad, and that want of authority extends to every incident necessary to make the road an operative elevated steam railroad, which occasions injury to the rights of abutters on the street. Baltimore and Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S., 329.

We have carefully examined the other exceptions taken by the appellant in the course of the trial, and all seem to us to be covered either by the decision in the Story Case, or the discussion already had.

We have been made aware that many questions involved in actions by abutters against defendant, have been agitated in other cases which it is stated are now on the way to this court, and may hereafter require consideration here.

In discussing this case we have refrained from referring to any of those questions unless properly raised by sufficient exceptions, and necessarily involved in the determination of this case, leaving the consideration of all other questions to-cases where they properly arise.

The judgment should be affirmed.

Andrews and Danforth, JJ., concur; Earl, J., concurs, in result on the authority of Story v. Elevated Railroad; Finch, J., concurs in result; Rapallo, J., takes no part.

Earl and Finch, JJ., not being able to concur in all the views- expressed in the foregoing opinion, concur in the result on the authority of the Story Case; deeming it necessary to add that, while they are unwilling to extend the scope of the decision in that case beyond its fair import, yet in their opinion ifc gives to abutting owners, only damages for the construction and operation of the railway in front of their premises resulting from the taking or destruction of their street easements of light, air and access, and for such damages to their adjoining property as are necessarily caused by such taking and destruction; that the abutters cannot recover damages to or upon their abutting property caused by the lawful operation of the road, and not by the deprivation or destruction of their easements in the street; that there can be no recovery for anything done by the railway in the street, except as it deprives, or tends to deprive, the abutters of the easements mentioned, and that they believe these principles were not violated upon the trial of this action.

Note.—In the case of Emily Wagner v. The Metropolitan Elevated Railway Company, the following opinion was rendered:

Huger, Ch. J.

No material distinction between this case, and the Latir Oase has been called to our attention, and we, therefore, hold that it is governed by the conclusions reached in that case. The judgment is therefore affirmed.


author: EtrOER, 0. J.

text:
    Mary J. McKinney, Resp’t, v. The Grand Street, Prospect Park and Flatbush Railroad Co., App’lt.

      (Court of Appeals,

      Filed February 8, 1887.)

    Evidence—Physician—Privileged information—Code Civil Pro., §§ 834, 836.
    Though the information acquired by a physician while attending a patient may, by the statute, be given in evidence only at the option of the patient, yet the ban having once been removed by the patient, and the information having been lawfully made public, the right to object further thereto has not been conferred.
    Appeal from judgment and order of the supreme court, general term, second department, denying a new trial.

      Morris & Pearsall, for app’lt; Anthony Barrett, for resp’t.

       Reversing 35 Hun, 668, mem.

   EtrOER, 0. J.

The defendant called as a witness one Chapman, a physician, and proposed to prove by him the injuries claimed to have been suffered by the plaintiff in consequence of the collision in question, as learned by him upon a personal examination of the plaintiff when visiting her as a patient.

Upon a previous trial of this action this same witness had been called by the plaintiff and had testified fully in her behalf as to all the facts bearing upon her physical condition as affected by the accident on the defendant’s railroad, learned by him in his attendance upon the plaintiff.

The plaintiff on the present trial objected to the proposed evidence, upon the ground that the information acquired by a physician while attending a patient was privileged, and could not therefore be admitted against the plaintiff without her consent.

This objection was sustained, the evidence excluded, and the defendant excepted.

We think this evidence was competent and its exclusion was error. Such evidence is made incompetent at the option of the patient only, and in case she elects at any time to remove the seal from the lips of the witness the evidence may properly be received.

The intent of the statute in making such information privileged is to inspire confidence between patient and physician, to enable the latter to prescribe for and advise the former most advantageously, and remove from the patient’s mind any fear that she may be exposed to civil or criminal prosecution, or shame and disgrace, by reason of any disclosures thus made. Therefore the statute provides that the information acquired by a physician while attending a patient in his professional capacity, shall not “be disclosed unless the patient expressly waives its prohibition.. Code Civ. Pro., §§ 834, 836.

It is claimed by the appellant that the ban of secrecy having once been removed by the patient, and the information having lawfully been made public, the right to object further thereto has not been conferred.

There seems much reason in this claim. The patient, cannot use this privilege both as a sword and a shield, to waive when it inures to her advantage and wield when it does not. After its publication, no further injury can be inflicted upon the rights and interests which the statute was intended to protect, and there is no further reason for its enforcement. The nature of the information is of such a character that when it is once divulged in legal proceedings, it cannot be again hidden or concealed. It is then open to the consideration of the entire public, and the privilege of forbidding its repetition is not conferred by the statute. The consent having been once given and acted upon cannot be recalled, and the patient can never be restored to the condition which from motives of public policy require the suppression of such information.

The stringency with which the rule excluding privileged transactions is 'applied by this court is illustrated in the recent case of Renihan v. Dennin (4 N. Y. State R., ante), but there is no principle or authority for holding, after a consent to publish such information has been properly-given and the evil, if any, consummated, that the privileged person can again raise the objection.

The object of the statute having been voluntarily defeated by the party for whose benefit it was enacted, there can be no reason for its continued enforcement in such case. The maxim of “Cessante ratione legis cessat ipse lex ” is of frequent application and is a sound rule of interpretation. Wharton’s Maxims, 17, p. 49.

It seems to us that this rule may properly be applied in • determining the meaning of the word “waived” as used in the statute, and as supporting the conclusion that when once waived and made effectual by publication it is waived for all time.

In Parks v. Jackson (11 Wend., 442) the chancellor applied the maxim to the case of an adverse occupant of lands, and held that he did not come within the reason of the statute prohibiting the sale of lands held adversely, and was not, therefore, within its prohibition.

In De Witt v. Barley (9 N. Y., 371) the principle embodied in the maxim was applied to modify the rule excluding the opinions of witnesses as evidence, and it may be said that it is applicable to every case where the sole reason for a rule has entirely ceased to exist.

The judgments of the courts below should be reversed and a new trial granted, with costs to abide the event.

All concur, except Danforth, J., dissenting.


author: Barker, J.

text:
    AndrewArmbruster, Resp’t, v. Hiram E. Wilson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Replevin—Distraining cattle—Fence viewers—Do not exist under THE CHARTER OP THE CITY OP ROCHESTER—LAWS 1880, CHAP. 14, §§ 8-149.
    Defendant, within the limits of the city of Rochester, distrained plaintiff's cow, damage-feasant, and kept the same in his possession for twelve days, and refused to deliver her to plaintiff on demand. During this time he did not institute any proceedings for the purpose of having his damages assessed by the fence-viewers, as provided by Revised Statutes, part 3„ chapter 8, title 2. Upon action brought to recover possession of the cowl. Held, that the board of assessors and highway commissioners of the city of Rochester, created by Laws 1880, chapter 14, sections 8-149, are not authorized to act as fence-viewers in cases of distress made under the provisions of Revised Statutes, and that these provisions were therefore necessarily inoperative.
    2. Distress op chattel damage-peasant—Revised Statutes,pt.3,ch.8, title 2—Repeal by implication not pavored.

      Held, that the omission to provide the necessary instrumentality to enforce the law within the city limits, did not furnish satisfactory evidence that the legislature intended to repeal the statute and restore the common law rules on the subject of distress, and that the omission might be regarded as unintentional. Repeal by implication is not favored.
    3. Same—Failure op distrainor to comply with statute—Property MAY BE REPLBVINED BY OWNER.

      Held, that the remedy given by statute as a means of securing indemnity for the damages sustained, was in addition to the common law right of action for damages, and the injured party might elect which he would pursue. That the distrainor acted at his peril, and if unable to comply with the requirements of the statute because the fence-viewers do not exist, or because of his inability to find them within the prescribed time, the owner might bring replevin to recover the possession of the property.
    Appeal from a judgment of the Monroe county court in. an action of replevin to recover the possession of one cow. The jury found a verdict for the plaintiff and assessed the value of the property at forty-five dollars and the damages for detention at seven dollars. At the close of all the evidence the court held that there was no dispute as to the material facts and as a matter of law the plaintiff was entitled to judgment, submitting to the jury the question of damages.

      George W. Humphrey, for app’lt; Sullivan & Morris, for resp’t.
   Barker, J.

By the bill of exceptions it appears that the defendant, within the territorial limits of the city of Rochester, distrained the plaintiff’s cow, damage-feasant, and kept the same in his possession for the period of twelve days and refused to deliver her to the plaintiff upon his demand. During all the time the defendant had possession of the cow, he omitted to institute any proceedings for the purpose of having his damages assessed by fence viewers as provided in title 2, chapter 8, part 3 of the Revised Statutes, entitled “of distraining cattle and other chattels doing damage and of distraining in other cases.”

The defendant contends that this statute has been abro-gated as to the city of Rochester, and in cases of distress arising within its territorial limits the rule of the common law prevails. The city of Rochester was incorporated in the year 1834. See Session Laws of that year, chapter 199. At that time the provisions of the statute were in full force and effect and applicable to the territory now embraced within the city Emits.

The appellant claims that the provisions of the city charter are inconsistent with and repugnant to the statute on the subject of distress and'are impliedly repealed and the intention of the legislature to abrogaté the same as to the city of Rochester is fairly inferred from the omission to create a pubEc officer authorized to discharge the duties of fence viewers. It must be conceded that unless there is a fence viewer, then the statute necessarily becomes inoperative.

Whenever a distress is made of cattle the statute requires the person making the same *o apply, within twenty-four hours thereafter, to two of the fence viewers of the town to appraise the damage. Section 1. The assessors and commissioners of highways-located in any town are authorized to discharge the duties of fence viewers in their respective towns. 1 Revised Statutes, 343, marginal page. The territory embraced within the city Emits ceased to be a part of the several towns from which it was .taken, and the assessors and highway commissioners of those towns cannot act as fence viewers in a case of distress arising within the city Emits. By the charter a board of assessors, and highway commissioners were created, each possessing the powers and charged with the duties therein specificaUy mentioned. See present charter, Laws of 1880, chapter 14, §§ 8-149. We incline to the opinion that these officers are not authorized to act as fence viewers in cases of distress made under provisions of the Revised Statutes. The assessors and highway commissioners of the several towns in the state are authorized to act as fence viewers only by force of the statute already referred to. Ho such power is in terms conferred on the assessors and highway commissioners for the city and the nature and character of their duties are in most respects unlike those imposed upon the same class of officers for the towns. There is no clause in the charter which in terms abrogates the provisions of the Revised Statutes in cases of distress arising in the city; nor is any reference whatever" made to the subject. We are unable to discover any intention of the legislature, to repeal or interfere with the6provisions and operations of the general laws then in force on the subject of distress. The omission to provide the necessary instrumentality to enforce the law within the city limits does not furnish satisfactory evidence that the legislature intended to repeal the statute and restore the harsh rules of the common law on the subject of distress.

It is the undoubted rule that repeals by implication are not favored. Where there is no repealing clause in a later statute and that and a former one can stand together and both have effect, they will both have effect and be regarded as in force. But where a later statute not purporting to amend a former one, covers the whole subject and was intended to furnish the only law upon the subject, the former statute must be held to be repealed by necessary implication. Heckmann v. Pinkney, 81 N. Y., 215; People v. The Gold and Stock Tel. Co., 98 id., 67; U. S. v. Tinen, 11 Wall., 88; People v. Jaehne, 3 N. Y. State Rep., 11.

The omission by the legislature to create the office of fence viewers for the city of Rochester may be regarded as unintentional. It occasionally occurs in the affairs of the state that its general laws become inoperative for a period of time in certain and limited localities, because there has been a failure on the part of the legislature to provide the necessary officers and tribunals to carry into effect the provisions of existing laws.

It is impossible to believe that the legislature in creating a municipal government for the inhabitants living within the limits of the city of Rochester, intended to interfere with the existing law on the subject of distress and restore the common law, which permitted the party making the distress to keep the cattle seized in his own possession for an unlimited period of time without giving notice to the owner, and that such detention would be lawful until the latter should- make a tender of amends. It has been repeatedly held that if a party making a distress of animals ■damage-feasant failed to comply with the requirements of the statute he was liable as a trespasser, ab initia. The special remedy given by the statute as a means of securing indemnity for the damages sustained, is in addition to the common law right of action for damages, and the injured party has an election which he will pursue. The distrainor acts at his peril, and if he is unable to comply with the provisions of the statute for the reason that the officers who are to assess the damages do not exist, or cannot be found within the time prescribed by the statute thereafter, then the seizure is unlawful, and the owner may bring replevin to recover ’ the possession of his property. •This was the defendant’s position, «and the seizure and detention of the cow was unlawful.

If assessors for the city were authorized to act as fence-viewers, as respondent contends, then it is conceded by the appellant that the detention was unlawful and the judgment should be affirmed.

But, as has been expressed, we are of the opinion they did not possess such powers.

Judgment affirmed.

All concur.


author: Haight, J.

text:
    Matter of the Personal Estate of Charles Hurlburt, dec’d.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    •1. Executors and administrators—Intermediate accounting of—Petition BY HEIR AND DISTRIBUTEE—PRACTICE—SURROGATE’S COURT.
    Proceedings to obtain an intermediate accounting by administrators were commenced in a surrogate’s court by petition headed “The petition of M. E. H., an infant, by I. 0-., her general guardian, respectfully shows.” It alleged that M. E. H. was an infant under the age of fourteen years, that I. G-. was her general guardian; that she was one of the heirs and next of kin of 0. H., dectased, and that letters of administration had been issued upon his estate to L. F. H and J. H., and that more than eighteen months had elapsed since such letters were granted; that upon information and belief there were assets in the hands of the administrators amounting to $4,000 and upwards, in which she was entitled to a distributive share; and prayed for a citation to issue to them to show cause why they should not pay her distributive share and for an order or decree requiring them so to do. The petition was verified by him in the usual form, in whidi he swore that he was the general guardian, etc., of M. E. H. Upon the presentation of this to the surrogate's court a citation was issued to the administrators requiring them to show cause, at a time and place therein named, why the prayer of the petition should not be granted. The citation was attested in the usual form, with the seal of the surrogate’s court affixed, and was signed by the clerk of that court. The administrators, upon the return day, appeared by attorney and made several objections to the petition and citation, which were overruled. They made no further appearance, nor did they show any cause why the_ petition should not be granted. Thereupon the surrogate, of his own motion made an order directing the administrators to make and render an intermediate accounting. Held, that the petition stated all the facts necessary to give tire court jurisdiction, that although it did not state the share to which M. E. H. was entitled, this fact might be properly ascertained by the surrogate upon the hearing. That the petition would have been properly executed if signed “M. E. H., by I. G., her general guardian," instead of “I G.,” but that from the body of the petition it might be seen that it wag the petition of M. E. H., an infant, by I. G., her general guardian, that the signature of I. G., at the end, must therefore be deemed to have been written in that capacity.
    8. Same—Issuance of citation to administrator—Matter of course —Clerk of surrogate's court may issue—Code Civ. Pro., £ 2509.

      It seems, that a citation as prayed for issued of course, and that under Code Civil Procedure, section 2509, subdivision 2, it might properly be issued by the clerk.
    3. Same—Irregularities of issuance cured by general appearance.

      Held, that should this not be the case its issuance was but an irregularity, and was cured by the appearance of the administrators, they not having appeared specially for the purpose of objection but having made a general appearance.
    4. Appeal—Question as to whether order appealable.
    The purpose of the order appealed from being merely to inform the surrogate of the amount of assets in the hands of the administrators and of their liabilities, etc., so that he might properly determine whether or not the petition should be granted, no final order having been made nor any order affecting a substantial right. Held, that it was a question whether the order was appealable, but that it was not necessary to decide.
    Appeal by the administrators from an order of the Wayne county surrogate’s court, directing them to make and render an intermediate account of their proceedings as such.

      Chares McLouth, for app’lt; íS. N. Sawyer, for resp’t.
   Haight, J.

These proceedings were instituted by a petition. It was addressed to the surrogate’s court of Wayne county and was headed as: The petition of Maud E. Hurlburt, an infant, by Isaac Gifford, her general guardian, respectfully shows.” It alleged that Maud E. Hurlburt was an infant under the age of fourteen years; that Isaac -Gifford was her general guardian; that she was one of the heirs and next of kin of Charles Hurlburt, deceased, and that letters of administration had been issued upon his estate to Lyman F. Hurlburt and John Hurlburt, the appellants, and that more than eighteen months had elapsed since such letters were granted; that upon information and belief there were assets in the hands of the administrators, amounting to the sum of $4,000 and upwards, in which she was entitled to a distributive share; and prayed for a citation to issue to them to show cause why they should not pay her distributive share, and for an order or decree requiring.them so to do. The petition was signed by Isaac Gifford and was verified by him in the usual form, in which he swore that he was the general -guardian, etc., of Maud E. Hurlburt. Upon the presenting of this petition to the surrogate’s court a citation was issued to the administrators, requiring them to show cause, at a time and place therein named, why the prayer of the petition should not be granted. The citation was attested in the usual form with the seal of the surrogate’s court affixed, and was signed by Barton Hammond, clerk of the surrogate’s court. Upon the return day the administrators appeared, and by their attorney, Charles McLouth, made several objections to the petition and citation, which were overruled by the surrogate. The administrators then made no further appearance, and did not show any cause why the prayer of the petition should not be granted. Thereupon the surrogate of his own motion made the order appealed from, and adjourned the proceedings until the day named within which the account was to be made.

It is contended in the first place that the petition does not show facts upon which a decree could be made; that it is only signed by Isaac Gifford, and that he as an individual is not entitled to the distributive share in the estate, and consequently that it did not give the surrogate’s court jurisdiction to proceed.

The petition states all the facts necessary to give the court jurisdiction. It states that Maud E. Hurlburt is one of the heirs and next of kin of Charles Hurlburt, deceased, and that she is entitled to a distributive share of his estate. True, it does not state the share which she is entitled to; but this fact may properly be ascertained and determined by the surrogate upon the hearing. The petition would have been properly executed if it had been signed “Maud E. Hurlburt, by Isaac Gifford, her general guardian,” instead of being signed “ Isaac Gifford;” but by referring back to the body of the petition we see that it was the petition of Maud E. Hurlburt, an infant, by Isaac Gifford, her general guardian. The signature of Gifford at the end of the petition must therefore be deemed to have been written in that capacity.

In the case of Hyatt v. Seeley (11 N. Y., 52, 58), Selden, J., in delivering the opinion of the court, describes the proper mode of executing a deed where the guardian had been directed to convey the interest of infants; but says: “The precise form, however, is not essential; but the order of the court must be followed in substance.” He further remarked in that case that it did not appear upon the face of the deed that any of the grantors were infants, or that they had a guardian ad litem; that in naming the parties to the deed there was no allusion to the guardian, nor to the fact that any of them were infants.

The deed in that case was signed by the infants themselves, and by the guardian; but not in his capacity as such. Had the deed in that case described the grantors as infants, and the guardian as such, a different question would have been presented.

Again, the petition prayed that a citation should issue. The only object of the citation was to inform the appellants of the presenting of the petition, and giving them an opportunity to be heard. It issues as of course, and is sanctioned by the uniform practice of the court, and we think it may properly be issued by the clerk under the second subdivision of section 2509 of the Code. If, however, we are in error in this regard, it was but an ^irregularity and was cured by the appearance of the administrators. They did not appear specially to make objection as is claimed by the appellant, for the case shows that the administrators appeared and by their attorney objected. The subsequent statement in the case after the ruling of the surrogate that no further appearance was made, does not change or alter the general appearance previously shown.

The order appealed from directs that an intermediate account be made by the administrators. The purpose of this is doubtless to inform the surrogate of the amount of assets in their hands, and of their liabilities, etc., so that the surrogate might properly determine whether or not the prayer of the petition should be granted. The proceedings were adjourned. No final order has been made, nor any order that affects a substantial right. A serious question is thus presented as to whether this is an appealable order; but under the view which we have taken of the other question, it does not become necessary to determine this.

The order should be affirmed, with ten dollars costs and disbursements, to be paid by the appellants personally.

So ordered.

Bradley and Angle, JJ., concur.


author: Bradley, J.

text:
    Bridget French, Resp’t, v. Solomon D. McMillan, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Manufacturing corporations—Interpretation op penal statute.
    The P. 0. Co. was incorporated under Laws 1848, chapter 40, and had a capital stock of $500,000, of which plaintiff owned more than three per cent. Defendant was treasurer of the company. Plaintiff, on February 15,1884, presented to him the written request mentioned by the statute, which provides, among other things, that whenever any person or persons owning three per cent of the capital stock of any company formed under the act exceeding $100,000, shall present a written request to the treasurer thereof that they deshe a statement of the affairs of such company, it shall be the duty of such treasurer to make a statement of the affairs of said company under oath embracing a particular account of all its assets and liabilities in minute detail, and to deliver such statement to the person who presented the request within twenty days after such presentation. If such treasurer shall neglect or refuse to comply with any of the provisions of this act, he shall forfeit and pay to the person presenting said request the sum of fifty dollars, and the further sum of ten dollars for every twenty-four hours thereafter until such statement .shall be furnished, etc. Laws 1854. Defendant made under oath a statement in detail of the assets and liabilities of the company, which was delivered to plaintiff, who shortly after informed him that it was not the one she wanted; that she wanted a statement of all the oil sexd. Held, that in the construction of a statute and the interpretation of the words used in it, reference may be had to the purpose in view and to the mi-chief, if any, designed to be overcome which otherwise might exist, so far as the same may be, ascertained from the statute as a whole, and those in pari matena may be referred to for such purpose. That a penal statute will not be extended by implication, but is entitled to a reasonable construction, and such as its terms fairly import.
    3. Same—Statement to be furnished by treasurer to stockholders —Laws 1848, chap. 40—Laws 1854, ciiap. 301, as amended by Laws 1863, chap. 473, § 1.

      Held, that the information in view by this provision was the financial condition of the corporation, and the purpose was to furnish the means to enable a stockholder to obtain it, and that the statement furnished by defendant was in compliance with the terms of the statute.
    Appeal from judgment entered on report of referee. The defendant was 'treasurer of the Plumbago Oil company of which the plaintiff was a stockholder.
    She brought this action to recover the penalty prescribed by statute for the alleged failure of the defendant to make .and deliver to her, a statement of the affairs, etc., of the company, and recovered $1,550. The defendant appeals.

      Edward Harris, for app’lt; J. A. Stull, for resp’t.
   Bradley, J.

The Plumbago Oil company was incorporated under the Laws of 1848, chapter 40, known as the general manufacturing actj and its capital stock was $500,000, of which the plaintiff owned more than three per cent. The defendant was treasurer of the company. And on the 15th day of February, 1884, she presented to him the written request mentioned in the- statute, which provides that “whenever any person or persons owning five per cent of the capital stock of any company not exceeding $100,000, or any person or persons owning three per cent of the capital stock of any company exceeding $100,000, formed under the provisions of this act, shall present a written request. to the treasurer thereof that they desire a statement of the affairs of such company, it shall be the duty of such treasurer to make a statement of the affairs of said company under oath embracing a particular account of all its assets and liabilities in minute detail, and to deliver such statement to the person who presented the said written request to said treasurer within twenty days after such presentation. * * * If such treasurer shall neglect or refuse to comply with any of the provisions of this act he shall forfeit and pay to the person presenting said written request, the sum of fifty dollars and the further sum of ten dollars for every twenty-four hours thereafter, until such statement shall be furnished, to be sued for and recovered in any court having cognizance thereof.” Laws of 1854, chap. 201, § 1, as amended by Laws 1862, chap. 472, § 1.

The defendant made under oath a statement in detail of the assets and liabilities of the company, which was delivered to the plaintiff, who shortly after called upon the defendant and informed him that the “statement was not the one she wanted, that she wanted a statement of all the oil that was sold.”

The defendant insisted that she was not entitled to any such statement and that in * furnishing said statement he had complied strictly with the demand of the statute. This fact is stated as found by the referee; and he further found that the defendant furnished the statement in good faith believing that it was all the statute required; that he furnished her no further statement; that the time intervening that of such interview between the parties, and the time of the commencement of this action was one hundred and fifty days of twenty-four hours each; that the statement so furnished was. not such a statement of the affairs of the said company embracing a particular account of all its assets and liabilities as the plaintiff was entitled to have received from the defendant, and as the ■ defendant was bound to make and deliver to the plaintiff, ■ and that the plaintiff was entitled to recover $1,550.

The question here is one of interpretation and force of the words 6 affairs of such company under oath embracing a particular account of all its assets and liabilities ” in the statute referred to. That section was not in the original act of 1848, but was added as section 27 to it by Laws of 1854, chapter 201.

The contention on the part of the plaintiff is, and such was the view of the referee, that something more than the assets and liabilities of the company is necessary to complete the statement required by the statute; that the term 1 ‘ affairs ” is broad enough to include the business transactions of the company, and necessarily means more than its financial condition, and that such is the purpose of its use, and the force of its meaning in the statute is indicated by its connection with what follows it in describing the re-' quirement upon the treasurer, am that the account of the ‘: assets and liabilities ” are within and constitute a part only of a statement more comprehensive which is defined by this word “affairs,” afid that this appears by the use of the word “embracing” in its apnhcation to the phrase of which it forms a part.

In the construction of a statute, and the interpretation of the words used in it, reference may be had to the purpose in view, and to the mischief, if any, designed to be overcome, which otherwise might exist, so far as the same may be ascertained from the statute, and it is as a whole, and those in pari materia may be referred to for such purpose. But a penal statute will not extended by implication. It is entitled to a reasonable construction and such as its terms fairly import. Verona C. C. Co. v. Murtaugh, 50 N. Y., 314; Bonnell v. Griswold, 80 id., 128. The stock, property and concerns of the company are managed by the trustees, who may elect such subordinate officers as may be designated by its by-laws. The treasurer comes within such subordinate officers who may be so designated and elected.

His general duties are not defined by the statute, except that the trustees shall cause a book to be kept by him or a clerk, containing the names of the stockholders, showing their places of residence, the number of shares held by each of them, and when they became the owners of such shares, and the amount of stock paid in. Laws 1848, chap. 40, § 25.

The general character and purpose of the office of treasurer fairly imports that he has the charge of the accounts showing the financial condition of his company as represented by its.assets.and liabilities. But his relation to the company is not necessarily such as to bring into the accounts in his charge the details of all the corporate business transactions through its various agencies, although the financial results go on to his books.

Yet if the statute in question makes it necessary for him to supply such details on written request for a statement of the affairs of the company, that impliedly makes it his duty to have the means of doing so, and that of the company to require its other agents and officers to supply him with them. If it be assumed that this term “statement of the affairs,” in its application and effect, includes and requires more than a statement of the assets and liabilities of the company, it is an indefinite term unless it embraces all the business transactions of the company as those which the required statement must contain, without qualification in respect to character or the time of their occurrence.

And if it is claimed that the transactions within the meaning of this provision of the statute are those only which in some manner have relation to the financial condition of the company at the time the request and statement are made, then it is less clearly denned, because it then must depend upon the judgment and determination of the treasurer as to-the remoteness of those which may or may not have such relation.

The framers of the statute evidently had in view the results of the business of the corporation, and the representation of those results financially, and hence required that the statement should contain “a particular account of all its assets and liabilities in minute detail.” The direction to that extent, and to that only, is defined by the statute.

The statement is treated by the referee as in that respect and to that extent a compliance with the statute, and we think, in view of the evidence and for the purposes of the trial, he was justified in so doing, and for the purposes of this review we so assume. As found by him, the only objection made to it by the plaintiff was, it “was not what she wanted, that she wanted a statement of all the oil sold.” This was no less within the affairs of the company than was the prices for which, and the times when sold, and the persons to whom the sales were made, nor than the quantity manufactured from time to time and on hand; and perhaps many other transactions the omission of which would render the statement insufficient upon the construction claimed for this statute. It is not to be supposed that the legislature intends to subject a party to a penalty without violation of a well defined duty, nor upon doubtful construction. The information in view by this provision was the financial condition of the corporation, and the purpose was to furnish the means to enable a stockholder to obtain it.

And the statute has defined what the statement of the affairs he is entitled to demand and receive from its fiscal officer shall contain. We think the reasonable interpretation of the provision in question is such that the term “ affairs ” is no broader in the intended requirement than the defined account which the officer is directed to embrace in the statement.

And that while the word “ embracing ” in its connection there is not one of limitation, it characterizes what is requisite to constitute a statement of the affairs of the company within the meaning of such term there employed, and has the same mandatory import as would the words “consisting of” or “containing.”

And that while it did not have the effect of excluding from the statement other matters, it must to be effectual contain an account of the assets and liabilities.

We have thus far proceeded to consider what is deemed the reasonable construction of the statute without any expressed reference to the technical definition of any of the words of the provision. That of “ affairs,” so far as applicable here, is “business.” And, in common parlance, the situation of affairs and of business is the financial condition as represented by the assets and liabilities. And when they are made to appear in detail the information of the affairs of a party, according to the common understanding and in the ordinary sense is furnished. The plain and ordinary signification of words in common use, when found in a statute, is usually to be given to them. Holmes v. Carley, 31 N. Y., 289. There are some further provisions of the statute tending somewhat to show what was the information designed by means of the direction of this provision of the statute to be furnished to the stockholders. In the section first referred to, is the further provision that when he makes the requested statement, the treasurer shall also place and keep on file in his office for six months thereafter a copy of it, which shall at all times during business hours be exhibited to any stockholder demanding an examination of it, and that he shall not be required to make and deliver one upon such written request above referred to oftener than once in six months.

And by the section following it is provided that should not any such written statement * * * be demanded during the year preceding the annual meeting of the stockholders * * * it shall be the duty of the treasurer * * * to prepare and exhibit to the stockholders then and there assembled a general statement of the assets and liabilities of such company.” Laws 1862, chapter 472, § 2.

The fact that the requisition upon the treasurer for a statement may be made once in six months and not oftener, and that he is not required to keep a copy on file longer than that time, tends to indicate the legislative intent, that the information required to be furnished by the statement is the financial situation of the company only.

The alleged right to a statement of the varied business transactions of the company does not seem consistent with these provisions of the statute, as there is nothing which extends such an enquiry over, or limits it to any particular period of time, and the response to it might require the statement, and each one made, to embrace the whole time of the business existence of the company' preceding the time of it's delivery to the requesting stockholder.

Then the nature and purpose of the required statement which is to be provided to the stockholders annually if none has been called for, and filed within the year, also goes to characterize the effect and purpose of the provision in question of the preceding section, and in support of the view that it was intended to require only a detailed account of the assets and liabilities of the company so as to enable the stockholder to appreciate the value of the shares of the stock held by him, and the financial standing of the company.

This statute was made for the interest which the stockholders had in common.

We think that the construction contended for by the plaintiff is not reasonably within the letter or spirit of the statute.

The judgment should be reversed, and a new trial granted. Costs to abide the event.

Haight and Lewis, JJ., concur.


text:
    National Exchange Bank of Auburn, Plt’ff, v. John Venemans, Impleaded, etc.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Bills and notes—When fraud in the making of the note is a defense AGAINST A BONA FIDE HOLDER FOR VALUE.
    Where a party is induced to sign a negotiable instrument by reason of fraud, artifice or deception practiced upon him by another as to the nature of .lie instrument, ana the maker signs the same innocently and under the he ief that it was a contract of a different character. Held, there can he no recovery upon the hill or note although the holder he an innocent purchaser for value before maturity, unless the maker was guilty of loches or carelessness in omitting to read the same, or by some other means ascertaining the true nature and import of the instrument. If, however, the maker was guilty of loches or negligence in this respect he will be liable to a bona fide holder for value who purchased the note before maturity.
    3. Same—When maker not guilty of carelessness in signing a note.
    It appeared that several days before the note was signed the defendant, who was a farmer, had negotiations with two persons at his own house, both of whom were strangers to him, which resulted in the execution and delivery of two separate instruments in writing, by the terms of one of which the defendant was appointed the agent of a certain company, with authority to sell, in a certain district, eornshellers manufactured by that company, and by the terms of the i ther, signed by defendant and one P., who claimed to be agent of the said company, the company agreed that defendant might return all machines which were not sold within a certain time. Before any of the machines were delivered to the defendant, and on the day the note was given, another person, also a stranger to the defendant, called at his house and stated to him that he was an agent of said company, and that there was at the railroad depot, located a few miles distant, twenty eornshellers which had been consigned to him in pursuance of the arrangement, and that he desired the defendant to sign a memorandum or contract as evidence to he shown to the company that the defendant had received the eornshellers shipped to him and that he was pecuniarily responsible for the same. This last person came in company with a young man, who was then also a stranger to the defendant, but who it afterward appeared was the servant of the liveryman who had been engaged to bring the stranger from the depot to defendant’s house. Before the note was signed the defendant stated that he feared that the paper which he was askt d to execute might turn out to be a note, and thereupon the stranger assured him that it was not, and was nothing hut a contract of the nature above stated. Before maturity the plaintiff "became a bona fide purchaser for value. The defendant is a German, and neither he nor his wife, at that time, could read English, written or printed, and his nearest neighbor lived about half a mile distant. Held, that the question of defendant’s negligence was properly submitted to the jury. That it was not negligence per se not to seek his neighbors and learn from them the contents of the writing, nor' was it negligence not to consult the young man who had charge of the horses under ihe circumstances.
    A motion by plaintiff for a new trial founded upon exceptions ordered by the trial court to be held here in the first instance. The cause was tried at the Chautauqua circuit, and a general verdict rendered for the defendant of no cause -of action.

      John I). Teller, for plaintiff; Walter L. Sessions, for defendant
   Barker, J.

This action is founded upon a negotiable promissory note made by the defendant Venemans for the-sum of $220, payable to his own order, and by him delivered to a person with whom he had a business transaction on the day the note bears date.

Before its maturity the plaintiff became a bona fide purchaser thereof for value. The maker interposed the defense that at the time he signed the note he understood and believed that it was a contract of a different import, not a note; that he was induced to sign and deliver the same by the false and fraudulent representations of the person to whom it was delivered as to its true nature and contents.

Upon the trial he also contended, that in view of all the attending facts and circumstances he was free from the imputation of loches and carelessness in relying upon the person to whom it was delivered as to the real character of the instrument. At the close of the evidence the plaintiff requested the court to direct a verdict in its favor upon the ground that upon the undisputed facts the defendant was guilty of loches and carelessness in signing the note without ascertaining its nature and import, and as the plaintiff purchased the same before its maturity, in good faith and for a valuable consideration, it was entitled to a verdict for the amount of the note as a matter of law. This request was denied by the court, and the plaintiff took an exception to the ruling. And this presents the only question for our consideration.

Most of the evidence bearing on the question of the defendant’s negligence was given by himself as a witness in his own behalf. If the jury believed his statements, they were justified in finding as facts that several days before the note was signed the defendant had negotiations with two persons at his own house, both of whom were strangers to him, which resulted in the execution and delivery of two separate instruments in writing, both of which were given in evidence. By the terms of one of them the defendant was appointed the agent of the “Port Huron Iron Works,” located at Port Huron, Michigan, with authority to sell in the township in which the defendant resided, cornshellers manufactured by that company. By the terms of the other agreement, signed by the defendant and one J. Perry, who claimed to be the agent of the said company, the company agreed that the defendant might return after four months’ experiment in making sales, all machines which were not sold which he had received from the company.

Before any of the machines were delivered to the defendant and on the day the note was given, another person, also a stranger to the defendant, called at his house and stated to him in substance, that he was the agent of the manufacturing company and that there was then at the railroad depot located some few miles from the defendant’s residence, twenty corn shellers which had been consigned to him in pursuance of the previous arrangement and that he desired the defendant to sign a memorandum or contract as evidence to be shown to the company that the defendant had received the corn shellers shipped to Mm and that he was pecuniarily responsible for the same. It does not appear from the case that this person disclosed his name, or that the defendant made any inquries as to his authority to represent the manufacturing company; nor does it appear that there was not a manufacturing company known by the name of the Port Huron Iron Works engaged in the manufacture -of corn shellers at Port Huron. But the jury were justified in reaching the conclusion that the defendant negotiated with the persons first namedin good faith, supposing that he was making a valid contract with a responsible party, intending on his part to carry out the agreement and also believed that one or more machines would be sent to him for the purpose of being sold as agreed upon in the written instrument. The last named person came to the defendant’s house in company with a young man some seventeen years of age, who was then also a stranger to the defendant, but upon the trial it appeared that he was a servant of the livery man who had been engaged to carry the stranger from the depot to the defendant’s house. Before the note was signed the defendant stated, that he had fears that the paper which he was asked to execute might turn out to be a note, and thereupon the stranger assured him, that it was not and was nothing but a contract of the nature already stated. The driver remained in charge of the horse and so near to the parties that he might have heard their conversation, and the note was signed and delivered in Ms presence. The note was partly written and partly printed and the defendant did not request the boy in charge of the horse to read the same to Mm. The defendant is a German by birth and a farmer. Neither he nor Ms wife could at that time read English written or prmted, and his nearest neighbor lived about half a mile distant. Before signing the paper the defendant consulted Ms wife as to its contents and she informed him that she was unable to read it and did not understand its meanrng. It was not disputed upon the trial but that the signature of the defendant to the note was procured by gross fraud and imposition perpetrated by the person to whom he delivered it, and that the latter was acting in concert with the persons with whom the defendant had the first negotiations.

The jury were also justified in reaching the conclusion that when the defendant signed the note he believed it was a paper of a different character and did not contain a promise to pay money to any one unconditionally. The defendant admitted that he intended to execute.an instrument which would contain a promise on his part of some kind and that the form of the same and the extent of his liability was to be ascertained and measured by the writing itself. The general rule of Jaw applicable to the case is, that where a party is induced to sign a negotiable instrument by reason of fraud, artifice or deception practiced upon Mm by another as to the nature of the instrument, and the maker signs the same innocently and under the belief that it was a contract of a different character, then there can be no recovery upon the bill or note although the holder may be an innocent purchaser for value before maturity, unless the maker was guilty of loches or carelessness in omitting to read the same, or by some other means ascertaining the true nature and import of the instrument. If, however, the maker was guilty of loches or negligence in this respect he will be liable to a bona fide holder for value, who purchased the note before maturity. Daniel on Negotiable Instruments, •§ 850; Chapman v. Rose, 56 N. Y., 137; Foster v. McKinnon, 38 Law Jour. Rep. [N. S.], 310; Citizens National Bank v. Smith, 55 N. H., 593; Penn. R. R. Co. v. Shay, 82 Pa., 203; Bigelow on Bills and Notes, 583; Millard v. Barton, 13 R., 1.

In his charge to the jury the learned judge stated the law applicable to the case in conformity to both of said propositions, neither party excepted to these instructions. The plaintiff’s counsel now concedes their accuracy as general legal propositions. His contention now is, that upon the undisputed facts the plaintiff was- entitled to a verdict and that it was error not to direct a finding in the plaintiff’s favor as requested on the trial. As the plaintiff was a bona fide purchaser for value before maturity the burden of proof was cast upon the defendant to show that he had been induced to sign the note by false and deceptive representations, and that he was free from loches or negligence on Ms part. We think a case was made for the consideration of the jury and that the question of the defendant’s negligence was properly submitted to them for their determination. As the maker could not read the English language he was obliged to rely upon the representations made by the other party, or consult and ascertain its contents from some third person. His wife, who was present, could give him no mformation as she was unable to read the paper. It cannot be said, as we think, that it was negligence, per se, not to seek his neighbors and learn from them the contents of the writing. The subject-matter of the negotiations was not of great importance and the terms of the agreement assented to by the defendant were plain and could be readily and accurately expressed in writing by any person who could write and was accustomed to business. The nature and character of the paper intended to be executed must always be considered in determining the question of the defendant’s negligence so far as it is based on the_ omission to inquire of others for the purpose of ascertaining from them the contents of the writing. If a farmer, who could not read, should sell and deliver to a miller a load of grain and receive pay therefor, and should then be requested to sign a voucher in the miller’s counting room, and should sign a paper prepared for that purpose and it turned out to be a negotiable instrument, could it be said that the farmer was guilty of negligence as matter of law because he did not seek some third person for the purpose of ascertaining the import of the writing ? The case supposed is not like the one before us in all respects, but it has been stated for the purpose of illustrating that the question of negligence is not always one of law and often becomes a question of fact for the consideration of a jury.

The neglect to exhibit the paper to the boy in charge of the horse for the purpose of ascertaining from him its contents presents a more serious question. Because this was not done the plaintiff bases his whole argument that the defendant was guilty of negligence as matter of. law. The evidence tended to show that this young man was the apparent companion or servant of the party with whom the defendant was transacting the business, and were it not for that circumstance we should be of the decided opinion that it was the duty of the defendant to consult him as to the contents of the paper. A statement had been made to the defendant in the presence of the boy as to the contents of the paper, and the defendant had no good reason for supposing, if a fraud was contemplated, that the boy could be used as a means of exposing it. The lad was then a stranger to the defendant, and the defendant had some reason for believing that these persons visited him for a common purpose. Within the rule as laid down by the leading authorities, we are of the opinion that the defendant made a case which required the court to submit it to the jury, and it was for them to say whether he had excused himself in placing the confidence which he did in the other party to the transaction, as to the contents of the instrument.

As the exception to the refusal to direct a verdict in the plaintiff’s favor was ordered to be heard here in the first instance, we have no power on this motion to determine whether the verdict is against the weight of evidence. On the former trial of this case there was a verdict for the defendant which this court set aside, for the reason that it then appeared by the case that the wife of the defendant could read English, and that he did not consult with her for the purpose of ascertaining the contents of the paper, and that the omission to do so was negligence per se.

The plaintiff cites us to our decision in the case of this Plaintiff v. Ogden (31 Hun, 443), as an authority in support of his argument that the exception was well taken. In that case it was held that the defendant therein, the maker of a note, was guilty of negligence in omitting to consult the members of his own family, who could read and were present at the time of its execution.

In sustaining the ruling of the trial judge in submitting the question of negligence to the jury, we do not intend to depart from the rules of lay stated in our opinion in that case.

The plaintiff’s motion for a new trial is denied, and judgment ordered for the defendant on the verdict.

Haight, J. not sitting; Smith, P. J., and Bradley, J., concur.


author: Haight J.

text:
    Carrie Breakey, App’lt,, v. James W. Breakey, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1. Practice—Reference of an action and the issues therein—ExTENT OF POWER OF REFEREE TO RECEIVE PROOF
    In an action to obtain a judgment of separation on the ground of cruelty and inhuman treatment, defendant by answer denied the charges of cruelty, and thereafter served an amended answer, alleging acts of adultery on the part of plaintiff, and demanded a judgment of absolute divorce. The case was referred to a refeiee, who reported in defendant’s favor, finding as fa: ts that plaintiff was guilty of the acts of adultery alleged. Plaintiff’s motion to set aside the order of reference and referee’s report was denied by the special term, and judgment ordered for defendant. Upon appeal, Held, that the order of reference being that “ This action ana the issues therein are referred,” etc., an objection that the referee had no power under the order of reference to report upon the question of plaintiff’s adultery, because no reply had been served to that portion of defendant’s answer, was not well taken. That the order was broad enough to include not only the issues framed by the pleadings, but the formal proof necessary to entitle the party to the relief sought.
    3. Same—Appeal from order confirming referee’s report—Rule observed IN reviewing testimony given before referee.
    The objection having been taken that the findings of fact were against the weight of evidence, and the evidence being conflicting, some of defendants witnesses appearing to have been hired detectives while the testi* many of others was in conflict with their previous statements and affidadavits. Held, that great care should be used in scrutinizing the testimony of the paid witnesses and those who had made conflicting statements in order that there should be no error in regard to the facts. That the referee had the witnesses personally before him and their testimony was delivered in his sight and hearing and that he therefore could more accurately determine the amount of credit to be given to their testimony than the appellate court could, and that the evidence satisfactorily establishing plaintiff’s adultery the report of the referee would be sustained.
    Appear from a judgment of the Monroe special term, entered upon the report of a referee and from an order denying motion to vacate the referee’s report, etc.

      George D. Forsyth, for app’lt; Henry J. Sullivan, for resp’t.
   Haight J.

This action was brought to obtain a judgment of separation on the ground of cruelty and inhuman treatment. The defendant first answered denying the charges of cruelty, and subsequently served an amended answer alleging acts of adultery on the part of the plaintiff and demanded a judgment of absolute divorce. The case was referred to a referee, who reported in favor of the defendant, finding as facts that the plaintiff was guilty of the acts of adultery charged in the answer. Thereupon the special term denied the plaintiff’s motion to set aside the order of reference and the referee’s report and gave judgment for the defendant.

It is contended in the first place that the referee had no power under the order of reference to report upon the question of the plaintiff’s adultery for the reason that no reply had been served to that portion of the defendant’s answer. But it does not occur to us that the appellant’s contention in this regard is well founded, for upon referring to the order of reference it will be observed that “ this action and the issues therein are referred, etc.”

This order is broad enough to include not only the issues formed by the pleadings, but the formal proof necessary to entitle the party to the relief sought.

In the second place, it is claimed that the findings of fact are against the weight of evidence, and that consequently the judgment should not be sustained. A careful reading of the entire evidence appearing in the appeal book discloses a sharp conflict upon this branch of the case. Some of the defendant’s witnesses appear to have been hired detectives, whilst the testimony of others was in conflict with their previous statements and affidavits. The evidence presented on behalf of the defendant is abundant, and if true, satisfactorily establishes the adultery of the plaintiff.

It was the duty of the referee, and is of this court to receive with great caution, and to carefully scrutinize the testimony of the paid witnesses and those who have given contradictory accounts of the transaction, in order that we may not be deceived in reference to the facts.

The referee had the witnesses personally before him, saw and heard them deliver their testimony, and consequently could more accurately determine the amount of credit that should be given to their testimony. We are, therefore, inclined to accept his views as to the facts.

No errors appear in reference to the admission or rejection of evidence.

The judgment and order should be affirmed, without costs.

So ordered.

Bradley and Lewis, JJ., concur.