text:
    Sylvanus Judd, Treas’r, App’lt, v. Dennis Harrington, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Contract—Restraint or trade.
    A contract between an association of wholesale lamb brokers and a similar association of lamb butchers whereby the former agrees not to slaughter any lambs or sell any except to the latter, and the latter to make all their purchases from the former, such stipulations being secured by penalties, is void as being in restraint of competition, and an agreement of the brokers among themselves based on such contract and providing for the distribution of the moneys to be received under it is tainted with its invalidity and likewise invalid.
    2. Same—Evidence.
    In an action upon the latter agreement where its invalidity is alleged in the answer, the contract is admissible.
    Appeal from judgment in favor of defendant, entered upon verdict, and from order denying motion for a new trial.
    Action to recover $10,000 as liquidated damages for the breach of an agreement.

      A. Prentice, for app’lt; Edw. C. Boardman, for resp’t.
   Pryor, J.

For answer to the action, defendant alleges that the ■contract sued on is void, because made in pursuance and furtherance of a combination to prevent competition in the supply of sheep meat in the market of New York.

The real plaintiff is the “New York & New Jersey Sheep , Brokers Association,” suing in the name of its treasurer.

On the 20th December, 1886, this association entered into an agreement with “ The Sheep & Lamb Butchers’ Mutual Benefit Association,” which reciting that the parties of the first part are engaged in business as wholesale brokers in sheep and lambs, and the'parties of the second part are engaged in the business of buying sheep and lambs for slaughter, and sale, proceeds to stipulate in substance, among other things, that the parties of the first part should not slaughter any sheep or lambs, except for export only, or sell any sheep or lambs except to the parties of the second part, which stipulation is secured by a penalty, and that the parties of the second part should make all their purchases of sheep and lambs from the parties of the first part, which stipulation also is secured by a penalty.

Seeing that the brokers who sell and the butchers who buy in combination control the supply of sheep meat, it is clear beyond ■question that the intent and effect of the agreement is to prevent competition with the brokers in selling, and with the butchers in furnishing the meat to the market. And, such being the evident purpose and tendency of the agreement, the law adjudges it void without proof of its actual operation. “It is not necessary to inquire whether the effect of the agreement was in fact detrimental. The true inquiry is, is it the natural tendency of such an agreement to injuriously influence the public interests. The rule is, that agreements which, in their necessary operation, tend to restrain natural rivalry and competition, and thus result in disadvantage to. the public, are against the principles of sound policy, and void.” Folger, J., in Atcheson v. Mallon, 43 N. Y., 147; Salt Co. v. Guthrie, 35 Ohio St., 672; Richardson v. Buhl,7 Railway & Corp. Journal, 97; Anderson v. Jett, 41 Alb. L. J., 104; Hilton v. Eckersley, 6 Ellis & Bl., 47, 65; Clancey v. Salt Co., 62 Barb., 406; People v. Chicago Gas Co., 41 Alb. L. J., 68; Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 id., 434; Wire Cloth case, N. Y. L. J., 26th February, 1891, aff’d at general term, 38 St. Rep., 1023.

If, then, the particular agreement on which the action proceeds was connected with and auxiliary to this unlawful combination between the brokers and butchers, it is necessarily infected with the vice of its principal, and is equally and alike invalid. That it was so connected, and so auxiliary, is clear to demonstration. The agreement between the brokers and butchers was made 20th December, 1886; the agreement sued on was made 11th April, 1887. The latter refers in terms to the former; and makes provision for the distributioil of money to be received from the Butchers Association pursuant to the combination contract. Indeed, it is impossible not to perceive that the organization of brokers effected by the agreement sued on was for the very purpose of carrying out the provisions and policy of the combination.

It results, therefore, that whether the agreement sued on be not of itself and alone void, because suppressing competition—to restrict competition is the object .avowed in its preamble—still, by reason of its implication and co-operation with the unlawful principle and provisions of the combination contract, it is poisoned with the same illegality, and is equally incapable of sustaining an action..

But appellant objects that the agreement between the brokers and butchers is not lawfully in evidence, because “two legal rights,” the agreements under consideration, “ cannot make one’ legal wrong; ” i. e., produce the illegality of the contract in suit The argument begs the question in assuming the validity of the brokers’ and butchers’ agreement, which, as already seen, is illegal and void. The invalidity of the contract in suit was pleaded in defense to the action; and it is always competent to show by proof aliunde that an apparently valid contract is vitiated by illegality. Mor does partial performance by a party of an illegal contract avail to estop him to assert its illegality at any stage of the controversy.

The combination agreement then, being properly in evidence, and established by uncontroverted proof, and its necessary effect being to invalidate the contract sued on, it was at once manifest that in no event could the action be maintained; and the learned trial judge might, without more, have dismissed the complaint. But he allowed the litigation to proceed, and left it to the jury to-say whether the combination between the brokers and butchers was unlawful.

The construction and legal effect of the contract in suit was, under the circumstances, the function of the court; and had the verdict upheld the contract, the submission of the question to the jury would have been fatal error. But since by their finding they construed the contract correctly, the error in referring its validity to their decision is of no prejudice to the plaintiff.

From the fact that the moment the agreement between the brokers and butchers was in the case the action was irretrievably lost to the plaintiff, it follows that no error, if any, in the admission or exclusion of evidence, is of effect upon the validity of the-judgment.

We are not satisfied, however, of any error in the rulings on evidence.

Appellant objects to a certain class of evidence, because it was admissible only after a confederacy had been shown; but a conspiracy was conclusively established by the agreement between the brokers and butchers; and then everything said or done by the parties to the combination in furtherance of its design was competent evidence against the plaintiff.

It was a favorite maxim with Chief Justice Marshall that the law regards with more favor him who would avoid a loss than him who would acquire a gain. Short v. Skipwith, 1 Brock, 103; Blane v. Drummond,, id., 62. If this action be sustained, the defendant, for a mere technical default, will suffer a forfeiture of $10,000.

Our conclusion is, that the judgment and order be affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    Morris Neimam et al., App’lts, v. James H. Butler, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Appeal—Sufficiency of findings.
    Where no case is made and none of the evidence printed, and appellant expressly states that the appeal is from the findings of fact and conclm sions of law alone, on the theory that the findings do not sustain the conclusions, and that on such findings the court was bound as matter of law to find a judgment for the appellant, it must be taken as conceded by appellant that the testimony wairanted the findings.
    3. Lease—Covenants — Hazardous use of premises by landlord—Injunction.
    Defendant leased the upper part of certain premises to plaintiffs, the lease containing a covenant that he would not let the remainder to any person for any business of a noxious or offensive character, or deemed extra hazardous, and would not permit the use of the same for any such business. At the time of the letting, defendant used the lower portion for a carriage repair shop, and had a blacksmith’s forge, and stored paint and varnish in the cellar, all of which was known to the lessees. Meld, that the continued use in that manner by defendant did not constitute a violation of the covenant; that the execution and acceptance of the lease with such knowledge imported a license that defendant might keep the articles and employ the agencies incidental and essential to the continuance of defendant’s business, and that even if there was a technical violation, yet, .as plaintiffs had suffered no injury, an injunction against such use should nut be granted.
    Appeal from a judgment entered at an equity term of this court.

      Moses Esberg, for app’lts; A. G. Vanderpoel, for resp’t.
   Bookstaver, J.

Plaintiffs brought this action to procure á judgment enjoining and restraining the defendants from using a portion of the buildings known as Nos. 242, 244 and 246 East One Hundred and Twenty-second street for a purpose offensive ¡and obnoxious to plaintiffs, and to restrain a violation of a covenant in the lease. The action was tried at an equity term of this court, and a judgment rendered for the defendant. Plaintiffs appeal from the findings and conclusions of law alone, without printing any testimony; hence the only question which can arise on this appeal is whether the findings of fact sustain the conclusions of law. It may be conceded, as appellant contends, that it is well settled that where the appeal is from a judgment rendered on the report of a referee or the findings of a judge, the exceptions appearing in the proposed case serve as a notice to the respondent of an intention to raise-the question of legal error, and puts on him, the respondent, the responsibility of adding by amendment any omitted evidence on the question to be raised. Halpin v. Phenix Ins. Co., 118 N. Y., 171; 28 St. Rep., 788; Brayton v. Sherman, 119 N. Y., 623; 28 St. Rep., 854; Healy v. Clark, 120 N. Y., 642; 30 St. Rep., 897. But this rule cannot apply where no case is made and none of the evidence is printed, and where the appellant in his brief expressly states that the appeal is taken from the findings and conclusions of law alone, on the theory that the findings of fact do not sustain the conclusions of law, and that on these findings the court was hound as a matter of law to find a judgment in favor of appellant; in such a case it must be taken as conceded by the appellant that the testimony warranted the findings.

The learned judge who tried this case found that on the 24th July, 1890, at the city of New York, the defendant, as owner of the real estate known as Nos. 242, 244 and 246 East One Hundred and Twenty-Second street, executed and delivered the indenture of lease or agreement under seal, mentioned in the complaint, to the plaintiff, Morris Neiman; that the lease in question was signed and executed by the plaintiff Neiman with full knowledge on his part that the defendant had built and was then using a blacksmith’s forge, and had paint and varnish in the cellar of the premises ; that he knew at the time he executed this lease that the defendant occupied the first story of the buildings in question as a carriage depository, and that painting and varnishing was being done there in the prosecution of defendant’s business; that the •defendant signed and executed the lease understanding that he was to continue the business as then carried on by him, but in ■case of his leasing it to other persons or corporations the condition should apply to them only; that the plaintiff, Morris Neiman, entered upon the occupancy of the demised premises on or about the 1st November, 1890, and continued to occupy the same until the formation of the copartnership between him and his co-plaintiffs, on or about the 1st day of January, 1891, and that he then transferred to such firm his interest in the lease, and that the plaintiffs had continued to occupy the premises under the lease, and pay the rent therefor to the defendant since the formation of the copartnership, carrying on the business of manufacturing knitted worsted goods made of woolen yarn; that such lease contained the following covenant: “It is further agreed between the parties hereto as a part and parcel of the consideration hereof, that the party of the first part (landlord) will not let or rent that portion of the premises Nos. 242, 244 and 246 East One Hundred and Twenty-Second street, New York city, not let to the party of the second part as aforesaid, to any person, persons or corporation, for •any business'of a noxious or offensive character, or deemed extra hazardous, or for any business that may be extra hazardous to the party of the second part (tenant), and that the party of the first part (landlord) will not permit the same to be used for any business that is hazardous, during the term hereby demised.”

That the plaintiffs in their business used worsted goods of delicate tint and texture, and employed a considerable number of workmen and girls; that before such lease was executed the defendant was occupying certain premises on Second avenue near One Hundred and Twenty-second street for the repair and manufacture of carriages, and since the execution of the lease the defendant had used and continued to use the portion of the premises not demised to Morris Neiman for the repair of carriages, in -which business he occasionally used a blacksmith’s forge placed in the basement of the premises, also hammers and a sledge, a swedge, and paints and varnish in the repair of-carriages, and that the hammers were about one pound in weight. The court also-found that with the knowledge and consent of the defendant and for the purpose of his business of repairing carriages, hammering was done in the basement; that the maintenance and use of the blacksmith’s forge and the repairs of carriages on the premises occupied by the defendants and the use of varnish and paint therein was hazardous in the sense only that the presence of fire, paint and varnish whether on the premises described in the complaint or elsewhere may be so considered; and that the use of paint and varnish in the premises in which the blacksmith's forge was operated was hazardous on account of fire in the sense above stated only; and that the use of paint and varnish in the premises in which the blacksmith’s forge was operated was offensive and obnoxious to plaintiffs and their servants, but not more so than the use of paint and varnish in the same premises may be offensive and obnoxious to- persons other than plaintiffs or their servants. He also found that neither Morris Neiman nor the plaintiffs ever entered into any express agreement with the defendant to allow him to use any portion of the realty for the repair of carriages or to operate or maintain a blacksmith’s forge therein. But he found that no smoke with noxious and offensive odor® and no other material dangerous to the health or comfort of plaintiffs or their servants came from defendant’s blacksmith’s forge to the plaintiffs’ premises, and that it did not cause smoke or dust to arise therefrom so as to cause any injury to plaintiffs’ stock of worsted goods, and that such smoke and dust had not spoiled or damaged any of their goods, and that the plaintiffs had not suffered any damage by the use of the blacksmith’s forge in question, by the defendant as he used it.

These findings, all of which must be taken as having been substantiated by evidence, make it clear that the defendant did not-violate the first part of the covenant above recited, by letting the premises to any person, persons or corporation for any business of any character, as he has continued in the occupation of the same just as he had been doing at the time the lease was made and the covenant entered into; so that the only question arising is, whether the latter part of the covenant, in which the defendant undertook not to permit the premises to be used for any business which was-hazardous during the term, has been violated in such a way as to authorize the granting of an injunction to prevent its further violation. The only possible ground on which the affirmative of such a contention can rest is, that when the plaintiffs requested the court to find the maintenance and use of a blacksmith’s forge and the repair of carriages on the premises occupied by defendant, and the use of varnish and paints therein is hazardous, the learned judge who tried the case stated: “I find this, in the sense that fire and the use and storage of paints and varnish where there is fire may be deemed hazardous,” and that when asked to find the same thing in respect to health he made the same qualification, which was, in substance, repeated as often as such or similar requests were made. What the judge who tried the case meant by these qualifications is apparent from the twenty-ninth finding of fact, in which he says, “ that the maintenance and use of such blacksmith’s forge, and the use of varnish and paint in defendant’s business as repairer and manufacturer of carriages is hazardous to plaintiffs’ business in the sense only that tire maintenance and use of a blacksmith’s forge and the use of varnish and paint in premises other than those mentioned in the complaint, arid in proximity thereto, may be considered hazardous to the same or other business.” But this was no more than saying what every one will concede, that whenever and however fire may be brought in close proximity to paint, oil, varnish or any other inflammable substance there will be hazard or danger. It is just as true of a gas flame as of a blacksmith’s forge, and of a lighted candle as of either. Yet no one would think of obtaining an injunction against ■carrying around a lighted candle in such a place.

The danger is not in the forge, but in the fire. And this is all the judge meant when he found as he did. Besides he has found that the lease was executed by the plaintiff Morris Heiman with full knowledge that the defendant had built and was then using the blacksmith’s forge and had paint and varnish in the cellar of the premises, and that these were used on the first floor in the prosecution of his business. There is nothing in the findings which intimates that the defendant intended or was expected to give up his business or was in any manner to change his mode of carrying it on when the plaintiffs took possession of the portion of the premises leased to them. Had this been expected of him, the plaintiffs should have had'it expressed in terms clearer than in the covenant above referred to. And the judge very properly found that the defendant executed the lease understanding that he was to continue his business as then carried on by him. We think the same rule should be applied to the construction of this covenant which has often been done in insurance cases, which is that the insurance of property in contemplation of its use for a known and specified purpose imports ex vi termini a license to keep the articles and employ the agencies incidental and essential to the beneficial enjoyment for the use proposed. So far has this rule been applied in such cases that it has been held it will prevail over a prohibition in the printed part of the policy. Harper v. Alb. Mut. Ins. Co., 17 N. Y., 194; The Mayor, etc v. Ham. Fire Ins. Co., 10 Bos., 537. We have said nothing as to the defendant’s business being hazardous to the health of plaintiffs or of his employees, for the reason that we think the covenant was intended to apply only to a business hazard, but if it applies to health as well, then the same reasoning is applicable, especially in view of the fact that the judge has found no smoke or noxious or offensive odors came from the forge in question, and that no other material, dangerous to the health and comfort of plaintiffs, came from it and that it was only offensive or obnoxious where there was fire;

It cannot be successfully argued that the defendant’s business as carried on by him was unreasonable or a nuisance, as the judge was specifically requested to find both of these facts, and he refused. Nothing has been presented to us from which we can draw any such inference, much less find that it was either.

Besides all this, the judge expressly found, on what we must assume was sufficient evidence, that the plaintiffs suffered neither damage nor inconvenience from the use of the blacksmith’s forge or the odors or gases arising therefrom; consequently even if there were a technical violation of the covenant the plaintiffs have suffered no injury therefrom and no in junction should issue. In this case there is no irreparable injury, no clear and certain right to the relief asked for, no interruption of any right which on just ground ought to be prevented.

A court of equity will not grant an injunction nor compel the performance of a covenant where there is no substantial wrong to be righted. Purdy v. The Man. R. R. Co., 36 St. Rep., 43; Brush et al. v. Met. R. R. Co., 44 id., Ill; Mechanics' Bank of Alexandria v. Lynn, 1 Peters, 376; King v. Hamilton, 4 id., 311; Taylor v. Longworth, 14 id., 172; Peters v. Delaplaine, 49 N. Y., 367, 373 Sherman v. Wright, id., 227; Inglehart v. Vail, 73 Ill., 63; Fish v. Leser, 69 id., 394; Thurston v. Arnold, 43 Ia., 43; Sweeney v. O'Hora, id., 34; Quinn v. Roath, 37 Conn., 16; McComas v. Easley, 21 Graft (Va.), 23; Hale v. Wilkinson, id., 75; Plummers. Keppler, 26 N. J. Eq., 481. It will not in all cases interfere even to compel the performance of a statutory provision ; it must first be-satisfied that the thing asked for will be useful to the plaintiff. Clarke v. Rochester, etc., R. R. Co., 18 Barb., 350. And although it will grant an injunction against a tenant for an infraction of a negative covenant on slight grounds, yet it will not enforce the observance of mutual covenants in regard to the use of land where in its discretion it would not be for the advantage of the parties. Trustees Col. Co. v. Thacher, 87 N. Y., 311; Story’s Eq., 713, 742, 750, 769; Willard’s Eq., 263, 264. So, too, it will not interfere by injunction to prevent an injury merely nominal or theoretical in its nature, although an action at law might be maintained for the same injury, Bassett v. Salisbury Mfg. Co., 47 N. H., 426; nor where the case presents a probability that more wrong will be done than prevented by the injunction asked for, North v. Kershaw, 4 Blatchf., 70, as is apparent would happen in this case.

The judgment appealed from should be affirmed, with costs.

Pryor, J., concurs.


author: Daly, Ch. J.

text:
    Martin Mahon et al., Resp’ts, v. Alfred A. Liscomb, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Pleading—Complaint—Joinder of causes.
    A complaint in an action against the vendors and auctioneer of property-sold at auction, alleging misrepresentations inducing plaintiffs to purchase, and asking judgment for the amount expended on such sale for deposit, fees, search and other disbursements, and as against the auctioneer the repayment of the deposit, is not demurrable as improperly uniting two causes of action, viz. : one against the auctioneer alone, and one for damages against the vendors. The vendees in such a case have a right of action against either, and a recovery upon either cause of action would include the deposit.

      Appeal by defendant, Alfred A. Liscornb, from an interlocutory judgment at special term overruling his demurrer to the complaint.

      Charles Haldane, for app’lt; John M. Bowers, for resp’ts.
   Daly, Ch. J.

The defendant Smyth is a real estate auctioneer, and sold at public auction certain premises in this city for the other defendants, owners thereof. The plaintiffs purchased at the sale, and paid five per cent., or $3,492.50, in cash to the auctioneer, besides paying auctioneer’s and exchange salesroom fees, and making disbursements for searches, counsel fee and survey. They brought this action, alleging misrepresentations by the owners to induce the purchase ; also, that the premises were incumbered, and asking judgment for the amount so expended, and that the same be declared a specific lien upon the said premises. The relief asked against the defendant Smyth is the re-payment of the five per cent, received by him, and any interest he may have received thereon. The defendant Liscornb demurs on the ground (1), that plaintiffs have improperly united two causes of action, viz.: a cause of action existing against Smyth alone for the repayment of the $3,492.50, and the cause of action against the other defendants for damages arising from the alleged breach of the contract of sale and for false representations; (2) on the ground that the complaint does not state facts sufficient to constitute a cause of action.

If the complaint states two causes of action, they are (1) for damages for breach of contract to give title free from incumbrances ; (2) for damages for false representations inducing the sale. This is not, however, the defect specified in the demurrer. The Code provides that the demurrer must distinctly specify the objections to the complaint, and an objection that causes of action have been improperly united “ must point out specifically the particular defect relied upon.” Code, §| 490,488. If the pleading is not defective in the respects specifically pointed out in the demurrer, then the provisions of the Code are not complied with, and the demurrer may be disregarded, although other grounds of demurrer exist. Dodge v. Colby, 108 N. Y., 445; 13 St. Rep., 848. The objection specified in the demurrer is that the claim for the repayment of the five per cent deposit is a cause of action against the auctioneer alone ; but this is not so. An action may be maintained against the auctioneer or against the vendors upon that demand. Cochcroft v. N. Y. & H. R. R. Co., 69 N. Y., 201; Cockcroft v. Muller, 71 id., 367. A recovery upon either cause of action stated in the complaint would include the amount of the deposit, and as the defendant Smyth does not demur to being joined as a defendant in this action the other defendants cannot complain.

The second ground of demurrer is not pressed.

The judgment must be affirmed.

Bischoef and Pryor, JJ., concur.


author: Bischoff, J.

text:
    Alfred W. Young, Resp’t, v. Parke Godwin, App’lt.

      (New York Common Pleas, General Term,

      Filed June 27, 1892.)

    Business corporations—Liability of director for signing false report.
    A director of a corporation organized under chap. 611, Laws 1876, who has signed a false report, is not liable under § 21 of that act for debts of the corporation contracted before such report was signed and filed.

      (Torbett v. Godwin, 62 Hun, 407; 42 St. Rep., 323, followed.)
    Appeal from the judgment of the general term of the city court, affirming a judgment of that court entered upon a verdict directed by the trial court.
    Action to enforce defendant’s liability under § 21 of chap. 611, Laws of 1875, as a director of the American Opera Company, Limited, a corporation organized pursuant to that act, for the signing and filing of an alleged false report.

      Wm. W. Badger, for resp’t; Nelson Smith, for app’lt.
   Bischoff, J.

Plaintiff, an opera singer, on July 1, 1886, ena contract employment services as such, for the period of twenty-five weeks, commencing November 15, 1886, with the American Opera Company, Limited, a corporation organized under chap. 611 of the Laws of the state of New York of 1875. On December 11, 1886, the American Opera Company, Limited, wrongfully discharged plaintiff from such employment, and refused to perform the contract on its part, for which, in an action instituted for that purpose in the city court of New York, plaintiff on February 11, 1887, recovered a judgment for $663.24 damages. On. January 20, 1887, the directors of the American Opera Company, Limited, among others the defendant, signed and caused to be filed the annual report, required by § 18 of the act above referred to, in the office of the secretary of state. This report was incorrect in that it alleged certain persons to be stockholders who were not such in fact, and in that it stated the amount of capital stock actually paid in to be $148,600, when in truth it was but $140,000, and in other respects, all of which were held to be material misrepresentations within the meaning of § 21 of chap. 611, Laws of 1875, by the general term of this court in Brand v. Godwin, reported in 15 Daly, 456; 29 St. Rep., 143. Thereafter, plaintiff brought this action in the city court of New York to charge the defendant with the amount of the damages which had accrued to him from the company’s breach of contract under said § 21, which provided that “ if any certificate, or report made, or public notice given by the officers of any such corporation shall be false in any material representation, all the officers who shall have signed the same shall be jointly and severally liable for all the debts of the corporation contracted while they are officers thereof.” On the trial of this action plaintiff established the contract of employment, its breach by the American Opera Company, Limited, the amount of damages sustained by him, the signing and filing of the annual report and its falsity in the particulars already mentioned by sufficient evidence, and then rested, and. thereupon defendant moved the dismissal of the complaint upon the ground that no cause of action against him had been shown. This motion was denied and a verdict directed for the plaintiff, from the judgment entered on which defendant appealed to the general term of the court below, where it was affirmed, and from the judgment of affirmance an appeal was taken to this court.

On the argument of the appeal it was, among other things, urged by the learned counsel for the appellant as ground for reversal, that the proper construction of | 21 of chapter 611 of the Laws of 1875 rendered it applicable only to debts contracted by the corporation subsequently to the signing and filing of the alleged false report, and that as it appeared upon the trial that the debt due the plaintiff was incurred before the report was signed and filed, the facts did not entitle plaintiff to recover, and, hence, that the complaint ought to have been dismissed. If the construction contended for is correct, no good can result from a discussion of the other questions raised on this appeal, since a reversal of the judgment will be imperative upon us.

The precise question was before the general term of the supreme court, in the first department, in Torbett v. Godwin, reported in 62 Hun, 407; 42 St. Rep., 323, since the trial of this action, and does not appear to have been heretofore presented. In the case cited, Mr. Justice Barrett, in a learned and elaborate opinion, concurred in by his associates, Justices Van Brunt and Daniels, reaches the conclusion that the highly penal character of the statute requires its operation to be confined within the strictest construction ; that its language is incapable of including by implication debts contracted before the alleged false report was signed and filed; that it was the intention of the legislature to visit upon the delinquent officers of a corporation for the making and filing of a report which contains material misrepresentations no greater penalty than such as is measured by the debts of the corporation thereafter contracted, and that creditors who were such before the filing of the report, and could not possibly have been induced to extend their credit in reliance upon its statements, cannot avail themselves of the liability imposed upon the officers because one or more of the material statements of the report are incorrect.

Counsel for respondent refers us to the opinion of the supreme court in Ferguson v. Gill, general term, first department, 46 St. Rep., 474, with the claim that the views expressed in Torbett v. Godwin are thereby modified, but the following language of Mr. Justice Van Brunt, concurred in by Justices O’Brien and Andrews, we must regard as an emphatic affirmation of the construction adopted by the former general term: “As long as the trustee knows the certificate to be false and the debt is thereafter contracted while he is an officer of the company, it comes within the provisions of the statute.”

We concur in the conclusions of the supreme court in Torbeit v. Godwin, for the reasons stated in the opinion, and it follows that the judgment must be reversed.

Judgment of the general and trial terms of the city court reversed, and. new trial ordered, with costs to the appellant to abide the event.

Daly, Ch. J., and Pryor, J., concur.


text:
    Jennie Woods Ashley, Resp’t, v. Parke Godwin, App’lt.

      (New York Common Pleas, General Term,

      Filed June 27, 1892.)

    Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff entered upon the verdict of a jury, and affirming also an order denying defendant’s motion for a new trial.
    Action to enforce defendant’s liability under § 21, chap. 611, Laws of 1875, as a director of the American Opera Company, Limited, a corporation organized pursuant to that act, for the signing and filing of an alleged false report.

      Wm. W. Badger, for resp’t; Nelson Smith, for app’lt.
   Bischoff, J.

Upon the trial of this action it appeared, without contradiction, that the debt of the American Opera Company, Limited, for which defendant was sought to be held, was contracted by it before the alleged false report was signed and filed, and the court charged the jury that if the report was false in respect to any material representation therein contained, plaintiff was entitled to recover. To this charge defendant duly excepted.

A verdict having been rendered for the plaintiff, defendant’s counsel moved, on the trial minutes, to set it aside, specifying as one of the grounds of the motion that the verdict was contrary to law. This motion was denied, and an order to that effect duly entered.

On appeal-to the general term of the court below, the judgment entered for plaintiff on the verdict, and the order denying the motion for a new trial, were affirmed, and from the judgment of affirmance defendant appeals to this court.

In Torlett v. Godwin, 62 Hun, 407; 42 St. Rep., 323, decided by the general term of the supreme court, first department, it was held that the proper construction of § 21, chap. 611, Laws of 1875, rendered the officers of a corporation who make and file a false report liable only for debts contracted by the corporation subsequent to the filing of the report and while they continue to be such officers, and in this construction the general term of this court has concurred in Young v. Godwin, the opinion wherein is handed down herewith.

It follows, therefore, that the judgment of the general and trial terms of the court below must be reversed.

Judgment of the general and trial terms of the city court reversed, and new trial ordered, with costs to the appellant to abide the event.

Daly, Ch. J., and Pryor, J., concur.


text:
    Jessie Woods, Resp’t, v. Parke Godwin, App’lt.

      (New York Common Pleas, General Term,

      Filed June 27, 1892.)

    Appeal from a judgment of the general term of the city court affirming a judgment of that court for plaintiff entered upon a verdict directed by the trial court
    Action to enforce defendant’s liability under § 21, Laws of 1875, as a director of the American Opera Company, Limited, a corporation organized pursuant to that act, for the signing and filing of an alleged false report
    Wm. W. Badger, for resp’t; Nelson Smith, for app’lt
   Bischoff, J.

Upon the close of the evidence submitted for both parties to this action, counsel for plaintiff requested the court to direct a verdict for the plaintiff. It then appeared unchallenged that the debt of the American Opera Company, Limited, for which defendant was sought to be held, was contracted before the alleged false report was signed and filed. The motion was opposed, and the court having directed a verdict for the plaintiff, defendant’s counsel duly excepted to the ruling.

In Young v. Godwin, the opinion wherein is handed down herewith, the general term of this court reverse a judgment against the same defendant, recovered upon a state of facts substantially the same as appeared upon the trial of this action, and concur in the construction of § 21, chapter 611, Laws of 1875, adopted by the supreme court in Torbett v. Godwin, 62 Hun, 407; 42 St. Rep., 323, which is to the effect that the liability of an officer of a corporation for signing and filing a false report attaches only to debts of the corporation which were contracted subsequent to the time of the filing of the report and while he continues such officer.

As the debt of the corporation for which plaintiff’s recovery was directed in this action was contracted before the filing of the report, it follows that the judgment here appealed from must also be reversed.

Judgment of the general and trial terms of the city court reversed, and new trial ordered, with costs to appellant to abide the event.

Daly, Ch. J., and Pryor, J., concur.


author: Titus, Ch. J.

text:
    Robert Ambrose, Pl’ff, v. The City of Buffalo et al., Def’ts.

      (Superior Court of Buffalo, Special Term,

      Filed July 20, 1892.)

    Injunction—Construction of sewer to damage of adjoining owner.
    Plaintiff owns lands extending to the center of the street and has a fishpond on his premises fourteen feet deep and of considerable value, fed from a spring on his land. The city has let a contract for the placing of a sewer in the street, thirteen feetdeep, requiring nine feet of rock excavation,and it was shown that the rock was of such nature that the work will result in said pond being drained. Held, that an injunction was properly granted.
    Motion to vacate an injunction.

      George Wing, for pl’ff: Philip A. Laing, for def’ts.
   Titus, Ch. J.

This action is brought to restrain the defendants from constructing a sewer in Delevan avenue from the east line of Avenue A. to Fillmore avenue. The plaintiff owns the land on the north side of Delevan avenue extending to the center of the street. He has a fishpond on his premises which is claimed to be of considerable value, stocked with different varieties of fish. The pond extends fourteen feet below the surface of the land, and is formed by excavating the rock. It is supplied by a spring of water on the plaintiff’s land. The defendant, the city of Buffalo, has let the job of building a sewer along the center line of Delevan avenue and in front of the plaintiff’s premises to the defendants Dark, who are now engaged in excavating for that purpose. The sewer in front of the plaintiff’s premises is to be thirteen feet below the surface of the ground, and it will be necessary in constructing it to excavate about nine feet of rock. The rock in this locality is not solid, but is in vertical layers, and of such loose character that in excavating for the sewer the plaintiff’s pond will be necessarily drained; that the plaintiff will be irreparably damaged, and that the injury is of such a character that he cannot be adequately compensated in damages. A sewer in front of the plaintiff’s premises of such a depth as would not draw the water from his pond can be made which will subserve every needed purpose, and allow perfect drainage to property.

The defendant does not deny any of the foregoing facts, but bases its objection to the granting of an order restraining it from building the sewer on the ground that the city under the charter has the right to construct sewers in any street where it is necessary, without reference to the injury done to adjacent property, and whether the fee of the street is in the plaintiff or defendant does not -affect the question, as the defendant’s right by virtue of its power as a municipal body when once determined is absolute, and if the plaintiff has any remedy at all, it is not in a court of equity, but a common law action to recover damages sustained. Whether the plaintiff can maintain an action against the city for damages is not very important in determining the question here raised. The plaintiff is the owner of the fee of the street, and the public have an easement of a right of way as a public highway, and such rights as are incident the city may exercise for purposes of the public health, comfort and convenience, and maintain it for all purposes of a street.

I think under the facts here shown to exist, and not denied, the plaintiff may resort to the remedy by injunction, to effect what cannot from the undisputed facts be accomplished in an action for damages, to prevent an irreparable injury. I have examined the authorities to which the counsel for the defendant has referred me, and I find nothing in conflict with such holding. In those cases where a party can be as fully protected and as fully indemnified by damages as by an injunction, the courts hold that the latter is not the proper remedy. Such was the case in Power v. Village of Athens, 19 Hun, 165, and in Tracy v. Troy & Lans. R. R. Co., 54 Hun, 550; 27 St. Rep., 633. The case of Ely v. City of Rochester, 26 Barb., 133, is an authority rather against the proposition claimed, by the defendant’s counsel, and in Blake v. City of Brooklyn, 26 Barb., 301, the court held the plaintiff had no remedy either at law or in equity. It is the rule that where the injury done cannot be fully compensated in damages that the court will interfere by injunction and protect the plaintiff’s property rights. I do not think the city had such an absolute right in the street as that it can undermine buildings and destroy permanent structures standing upon adjacent land, and not be subject to the restraining process of the law.

In Kelsey v. King, 32 Barb., 410, it was held that a municipal corporation had the right to construct a sewer in the street, because it was positively beneficial to the adjoining property, and enhanced its value. (415.) That it contributes to the benefit of the adjoining property, and takes nothing away from the adjoining owner, and that he suffers no detriment and no injury. (416.)

The plaintiff here shows he will suffer injury which cannot be adequately compensated in damages, and this fact stands undisputed on the record.

In 33 Howard, 39, this case was reviewed and affirmed in the court of appeals, and it was there held that the city had the right to use the street for the purpose of building a sewer, which might cause the plaintiff damage, but only because the fee of the street had been taken by the city, and he had been compensated for'the use of the land to maintain and construct sewers therein, and the court could not review that proceeding and determine whether such compensation was adequate, and that it was now too late to correct it, if any error had been made in awarding him too small a sum.

In Morgan v. City of Binghamton, 102 N. Y., 500; 2 St. Rep., 449, it was held that an injunction would not lie to restrain the defendant from constructing a sewer where the injury was problematic, distant, and merely possible, and which may never arise. The court said: “When the evidence is conflicting, and the injury doubtful, eventual or contingent, the tribunal entrusted by the law with the plan and execution ought not to be overruled; ” but that injury material and actual must be shown.

There is nowhere in the cases that I can find an intimation that this remedy cannot be resorted to where the injury is substantial and damage certain. Where there is no contradiction of the fact that a party will suffer irreparable injury, it is the province of the court to protect a party who will be thus injured in his property rights. It is not intended to hold that the city may not build sewers in the streets, for such use is not necessarily inconsistent with its use for street purposes, but when the building of sewers is accompanied with serious injury and loss to the abutting owner, then the city has no right to proceed without first making compensation to the plaintiff for his probable damage.

The motion, therefore, to vacate and set aside the injunction is denied, with ten dollars costs of the motion.