author: O’Brien, J. Van Brunt, P. J.

text:
    In the Matter of the United States Mortgage Company.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Corporation—Change op name.
    Leave to change the name of a corporation to the “United States Mortgage and Trust Company, will not he denied on the ground that it so nearly resembles the name of the “United States Trust Company of New York,” as to deceive persons as to the identily of such corporation.
    Appeal from an order, denying an application to change the name of a corporation.

      Julien T. Davies, for app’lt; Edward W. Sheldon, for resp’t.
   O’Brien, J.

The United States Mortgage Company petitions, under section 3411 of the Code, for leave to assume the name of “United States Mortgage & Trust Company.” It was chartered in 1871, with power to lend on bond and mortgage, issue its bond against such loans, receive deposits, and invest in real or personal estate, though it has confined itself mainly to a mortgage and bond business. By chapter 274 of the Laws of 1894, it was authorized “to receive deposits of trust moneys,.securities and other personal property, from any person or corporation ; * to accept and execute any * * * municipal or corporate trust not inconsistent- with the laws of this state.”' It is conceded that by this act the petitioner had conferred upon it all the powers and rights of a trust company. With a view to designate its corporate powers and its actual business, it applied to have added to its name the word “Trust,” so that its coporate title hereafter should be “United States Mortgage & Trust Company.” The statute provides that, before any change can be made in the name of any corporation, it must present a petition to the court, which, if it be a banking corporation, “must be authorized by a resolution of the directors of the corporation, and approved * * * by the superintendent of banks" (Code Civ. Proc. § 2411); that the petition must specify the present name of the corporation, “and the name which it proposes to assume, which must not be the name of any other corporation, or a name so nearly resembling it as to be calculated to deceive” (Id. § 2412); “if the court to which the petition is presented is satisfied thereby, or by the affidavit and certificate presented therewith, that the petition is true, and that there is no reasonable objection to the change of name proposed,” the court may make the order (Id. § 2114).

The petition was authorized by resolution of the directors, and approved by the superintendent of banks, who certified that the name the petitioner asked to assume was not the name of any existing corporation doing business in New York, and did not so nearly resemble the name of any other corporation as to create confusion in the public mind. Subsequently, an effort was made to induce the superintendent to withdraw such approval, which, after considering the objections presented, he declined to do. Such certificate of approval is attached to the petition, and is supported by the affidavits of presidents of different corporations, all of whom declare that no injury can result to the objecting company, or confusion ensue by the change of name proposed. On the other hand, the application is opposed by the respondent company, whose position is supported by the affidavits of the presidents of the leading trust companies, who express the opinion that injury and confusion will result. Prior to the amendment of the Oode in 1893, the power to authorize the change of name by a trust company was vested exclusively in the superintendent of banks; and this circumstance, together with the one that under the existing law the petition must be approved by him, should be taken into consideration, notwithstanding the weight to be attached thereto, the court at special term concluded, upon a consideration of all the facts, that confusion would arise, and refused to permit the change; and it is from that determination that this appeal is taken.

The word “Trust” is a general and descriptive term, universally recognized as belonging to a class of corporations, and no question arises here but that the petitioner comes within that class, and that the use by it of the word “ Trust ” in its corporate name would be truly descriptive of the actual power and business of the company. Were it not, therefore, for the confusion or deception which it is claimed might follow, no reasonable objection could be presented against the assumption of a word duly descriptive of its powers and business. Notwithstanding the unquestioned right of' the petitioner in the abstract to the use of the word “ Trust ” as. part of its corporate title, the question before the court is whether the name, taken as a whole, which it proposes to assume, is the name of any other domestic corporation, or a name so nearly resembling it as to be calculated to deceive or produce confusion. The title of the objecting company is “United States Trust Company of New York,” and the name of the petitioner, if leave were granted to add the word “ Trust,” would be “ United States Mortgage & Trust Company.” It is to be noticed, in passing, that the affidavits, other than those of the president and vice president,, used in opposition to the petition, speak of the respondent, not by its full title, but as the “ United States Trust Company”; and this-is explained by the affidavits of the officers referred to, who, while admitting the correct corporate name as above given, aver that it is commonly known as the “ United States Trust Company,” instead of by its real corporate name of “ United States Trust. Company of New York.”

It has been held that:

“ A corporation existing under the Laws of this state cannot in legal proceedings be properly designated by two names A corporation cannot, except as authorized by law, change its own name, either directly or by user. , It cannot do such an act for itself, neither can the public give it a name other than that of its creation; that is, a name by which it-can be recognized in judicial proceedings.” McGary v. People, 45 N. Y. 160.

And, again: •

“ The use by the defendant of the words ‘ Employers’ Liability Company ’ in his corporate name would not be enjoined on the-ground that confusion would result as to the identity of the two companies, in that it was the custom to refer to insurance companies by abbreviated titles, since defendant would be permitted to do business only in its corporate name, which is distinguishable from that of plaintiff." Employers' Liability Assur. Corp. v. Employers' Liability Ins. Co., 10 N. Y. Supp. 845.

See, also, Boston Rubber Shoe Co. v. Boston Rubber Co., 149 Mass. 436.

z. In determining the question before us, then, we should consider what would be the true legal name of the petitioner were the change granted, and compare it with the real legal designation of the objecting company. Is the name “ United States Mortgage & Trust Company ’" likely to produce confusion between it and “ United States Trust Company of New York" ? It is insisted by the respondent that this would be calculated to deceive the public regarding the identity of the two corporations, and that it would constitute an unwarranted interference with its vested rights. It. is well established that an existing corporation is entitled to protection against the use of a similar name by a competing junior-corporation. Whether we have regard to the numerous cases determining in what instances the court will prevent the assumption by a new company of a title similar to that of an older company, or determine the question here by the language of the statute.

which states the considerations that are controlling in granting or refusing a change of name, it will be found difficult, if not impossible, to formulate any general principle that will control all situations, but each application must be determined upon its own facts. It is for this reason that it is impossible to reconcile the conflicting cases ; but an examination will show in nearly every instance that the conflict is apparent rather than real, because in all the same general principles are applicable, but they are affected or controlled by the particular facts of the case before the-court. This has been attempted to be pointed out in the case of Farmers' Loan & Trust Co. v. Farmers' Loan & Trust Co. of Kansas, 1 N. Y. Supp. 44, wherein it is said :

“ A name, whether of an individual or corporation, as well as any other mark or symbol, will be protected in a proper case, and that irrespective of whether such name is an arbitrary one or not, if other considerations entitling it to protection are present.”

Here there is no claim that, by fraud or fraudulent means, the petitioner seeks to avail itself of the business reputation or standing of the respondent. The absence of any element of fraud, however, is not controlling; as the court, apart from any fraud or fraudulent intent, would interfere where there was reasonable ground to conclude that the act complained of would result in injury to the individual or corporation complaining, or in imposition or deceit upon the public, by destroying their identity. Both companies, for more than 20 years, have carried on the business of mortgage loans in this city, with extensive connections in Europe and different parts of the United States, without injury or suggestion of interference or confusion. The words “ United States ” have been common to the names of both companies, and it is not claimed that either could be deprived of these, which concededly have a tendency, if confusion is to result, to produce it. If the words “ United States ” were eliminated from the titles of both companies, and we should compare what then remained, it is clear that no confusion could arise from the use by the petitioner of the name “Mortgage and Trust Company,” as compared with the use by the respondent of the name “ Trust Company of New York.” If, however, we add the words common to both,—“.United States,”—having in mind the past history of the two companies, that for over 20 years they had been engaged, so far as loaning-money on bond and mortgage is concerned, in a simple branch of business, the fact that they both have existed and carried on business for such a length of time without a claim being advanced that any confusion in the identity of the corporations or injury to-the business of either resulted must be regarded as significant in-determining the question before us. We know that the words “ United States,” just as we know that the word “ Manhattan,” or the words “ New York," have been applied to various corporations organized for trust, investment, insurance, building, and various other purposes, and that the use of such prefixes by different, companies has become common in this city and throughout the country. Thus, in this city alone, without enumerating all the ' companies with almost similar names that the prefix “ New York,” we have, as using the word “ Manhattan,” the Manhattan Trust -Company, the Manhattan Investment Company, and the Manhattan Company. The public, familiar, as they necessarily must be, with this fact, are accustomed to seize on some characteristic word or words in the title of a company to distinguish it from all other companies, which, as part of their titles, might have words similar to those by such company employed. So here we think that the words “ Mortgage Company,” the title under which the petitioner established its business, would be its distinguishing feature, and prevent confusion of identity, even though the word il Trust” were added to its corporate name.

This addition, as we have said, is indicative óf the increase of ' the petitioner’s powers; and, unless it appeared that there were reasonable ground for thinking that deception or confusion would result, the court should not permit the use of a word that expresses to the public its business. And, in regard to the use of this word “ Trust,” what was said in Canal Co. v. Clark, 13 Wall. 311, is applicable:

“ To entitle a name to equitable protection, as a trade-mark, the right to its use must be exclusive, and not one which others may employ with as much truth as those who use it. * * * Equity-will not enjoin against telling the truth.”

Or, as said in Caswell v. Davis, 58 N. Y. 234:

11 There is no principle more firmly settled in the law of trademarks than that words or phrases which have been in common use, and which indicate the character, kind, quality, and composition of the thing, may not be appropriated by any one to his ex-elusive use.”

And, again (Id. 235):

“ Words are but symbols. When they are used to signify a fact, or when, with what purpose soever used, they do signify a fact, which others may by the use of them express with equal truth, others have an equal right to them for that purpose.”

There is force, therefore, in the contention of the petitioner that, having the right to do a trust business, it has the right to use an -appropriate name, and cannot be required to invent a new one; that, being a trust company, it has a right to signify the fact by the only word that clearly and truthfully expresses it. The cogency of this reasoning is only to be affected by considerations which would lead to a conclusion that the similarity between the titles of the two corporations was such as to mislead the public or produce confusion; and in the end, it being conceded that, but for this circumstance, the petitioner has an undoubted right to’the name it seeks to use, it must be determined by a comparison of the two names, and thus the aid ordinarily given to the court by reference to other cases which have been cited by both counsel is absent. Most of these are cases where one cornoration has sought to restrain another from using a name that had become the trademark of the objector, or so similar as to produce confusion and loss. It is obvious that these can have no direct relation to a situation such as here presented, where the question to be determined is under the statute, whereby it is made the duty of the petitioner to satisfy the court that there are no reasonable grounds for concluding, that deception or confusion will follow the granting of the application. However much, therefore, they may serve to illustrate or present analogies, they are in no respect controlling as authorities; and we are left to determine, under the plain wording of the statute, whether the petitioner has complied with its provisions.

Our conclusion, upon applying the statute to the facts here appearing, is that it cannot with reason be asserted that there is a probability of confusion ensuing, or of the identity of the two «corporations being destroyed. A mere possibility by the suggestion of extreme instances that might never occur should never be the basis of the court’s action, its duty being to determine what with reasonable certainty would be the natural consequences of granting the application. As in the past both companies have •done business side by side, without injury resulting to the older company, or confusion being created in the public mind, we think this is an assurance that the addition of the word “ Trust” will not work injury or confusion in the future. We think, therefore, that the court below erred in refusing the application, and, for that reason, that the order should be reversed, and the application granted, with $10 costs and disbursements.

Follett, J., concurs.

Van Brunt, P. J.

I cannot concur in the conclusion arrived at by Mr. Justice O’Brien in the case at bar. There is no doubt but that great confusion would arise in case °the application of the appellant was granted. It is not the question whether business and financial men would be misled by similarity of names, but it is to protect those who are not familiar with the precise titles of corporations that the provisions of law in respect to •change of name were enacted. In wills and deeds naming executors, trustees, and guardians, or legatees, we find chiefly the erroneous descriptions of corporations which cause confusion; and in such cases there is always a similarity of names which is catching 10 the ear, and impresses itself upon the mind. And, in case this application were granted, we should find, where instruments such as have been above mentioned are executed and trusts created, the use of the words “United States Trust Company ” where it was intended to designate one or the other for the two corporations in question ; and it would become a matter for the courts to decide as to which corporation was intended, which could only be determined by action. The United States Trust Company is neither the precise appellation of the respondent or of the appellant, but both would claim it; and, where there had been no previous dealings between the person executing the instrument and those companies, it would be mere guesswork upon the part of the court as to which was intended. I do not think that, under such circumstances, an application of this kind should be allowed. The order appealed from should be affirmed, with $10 costs and disbursements.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Heinrich Michellen Resp’t, v. Amelia L. Spies, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Trial—Postponement.
    The postponement oí a trial is erroneously refused, where it appears that the moving party is the sole witness as to a material issue, and will be prevented from attending the trial by a surgical operation.
    Appeal from an order, denying a motion to open a default, to-set aside an inquest and to grant a new trial.

      James H. Warner, for app’lt; Hamilton R. Squier, for resp’t.
   O’Brien, J.

The action is brought upon a demand promissory note for $12,000 made by defendant’s testator to one Ferrand, and transferred to plaintiff after maturity. The defendant admits the making of the note, but claims that she advanced and paid to Fer-rand, for the estate of the testator, the sum of $600, which payment was made, at the request of said Ferrand, as an advance on any amount of pro rata dividend that might become due and payable to said Ferrand upon the note on a final distribution of the property in the hands of the defendant as executrix under the will of the testator. Upon the cause being reached for trial, the defendant presented a physician’s affidavit to the effect that a serious-operation would prevent her presence at the trial, and testifying,, which was supplemented by that of the defendant’s counsel, that the defendant was the sole witness to the transaction or agreement between her and Ferrand regarding the payment of the $600, and was a materia] witness, to prove such affirmative defense of payment. None of the statements contained in these affidavits was; controverted by plaintiff, nor does it appear that he would have been in any way injured by the delay. Upon these affidavits, a motion for an adjournment was made until defendant could testify, which motion was denied. Subsequently, a motion was made before the trial judge to have the default opened, and a new trial granted, which was likewise denied, upon the ground that plaintiff offered to admit the payment of $600, if pleaded.

The affidavits furnished a legal excuse, entitling the defendant to an adjournment, if her testimony was material had necessary to-an issue in the case. The issue raised was whether the $600 was-a payment on the note, or a pro rata dividend on the debt. That these are not the same thing is evident from a consideration of the effect of such payment, if we assume that the estate of the testator was insolvent, and unable to pay the debt in full. In one event,, it would be but a payment on the indebtedness, leaving the balance upon which the creditor could obtain a dividend out of the-estate ; while, on the other hand, if the entire debt were presented and allowed, and a dividend less than the whole amount were to-be applied upon plaintiff’s claim, then the defendant would be entitled to a credit upon such dividend for- the $600 already paid. The issue being raised, and it being a material issue, the defendant was entitled to present, her side upon the trial. Not, however, being present, but offering a legal excuse, the cause should have been adjourned. If the plaintiff is entitled to any benefit obtained contrary to the legal right which the defendant had to an adjournment, it should only be upon the assumption that she could maintain her defense that the $600 was not a payment on the note, but was a pro rata dividend on the debt. The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, unless the plaintiff stipulates to enter a judgment for the amount of the note, with interest thereon, without costs, and thereupon to indorse, as a payment thereon, a sum equal to $600, with interest from October 18,1893, in which case the order is affirmed, without costs to either party.

All concur.


author: Hardin, P. J.

text:
    Norris Winslow, as Trustee, etc, App’lt, v. Carthage, Watertown and Jacket Harbor Railroad Company et al., Def’ts. In the Matter of Addison L. Upham as County Treasurer, etc., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    Mortgage—Compensation of trustee.
    The county treasurer, to whom the mortgage debt was paid as payment into court, pending foreclosure, should not ask for an allowance for receiving and paying out the money before a formal order to pay it out has been made and an adjudication had, discharging the lien of the trustees on the fund.
    Appeal from an order, adjusting the fees of the county treasurer in the receiving and paying out moneys paid into court on the foreclosure of a mortgage.
    The following order was made :
    “A motion having been made on behalf of Addison L. TJpham, 'treasurer of Jefferson county, based on his affidavit dated March 14, 1894, and upon the orders, judgments, and appeals in the above entitled action, duly entered and filed in the office of the cleric of Jefferson county, N. Y., and on the testimony of Addison L. Upham, Smith T. Woodworth, and Daniel GT. Grffin, taken upon the hearing of said motion by the mutual stipulation of the attorneys for the respective parties, and on proof of service of said notice of motion and affidavit on the Carthage, Water-town, and Sackets Harbor Railroad Company and Norris Wins-low, as trustee of the first mortgage of the Carthage, Watertown, and Sackets Harbor Railroad Company, the plaintiff in this action, and proof of service of said notice of.motion on George H. Sherman and Roswell H. Flower, as trustees and defendants in said action, and on the affidavit of Daniel G. Griffin, and on the demand made by the plaintiff in the action on the said Addison L. Upham, as county treasurer, on the hearing of this motion for payment of the fund involved in the motion, with interest thereon to him, the plaintiff, as such trustee, and after hearing Hannibal Smith, of counsel for Addison L. Upham, treasurer of Jefferson county, and Daniel G. Griffin, of counsel for Norris Winsiow, the plaintiff in the action, in opposition, it is ordered that the fees of Addison L. Upham, treasurer of Jefferson county, for receiving and paying $160,200, placed in his hands, be, and are hereby, established at five hundred dollars, and that the said Carthage, Watertown, and Sackets Harbor Railroad Company be, and hereby is, ordered to pay to said Addison L. Upham or his attorney the sum of five hundred dollars for such fees upon the service of a certified copy of this order on the said defendant the Carthage, Watertown, and Sackets Harbor Railroad Company. It is further ordered that said Addison L. Upham, as treasurer of Jefferson county, be, and he is hereby, directed to refuse the demand of the plaintiff, Norris Winslow, as trustee, hereinbefore recited, and that said Upham deliver over the bonds of the Carthage, Watertown, and Sackets Harbor Railroad Company in his hands to the said Carthage, Watertown, and Sackets Harbor Railroad Company on its payment of his fees as hereinbefore provided, and that the said Addison L. Upham, treasurer of Jefferson county, shall be discharged from all further liability in relation to the said fund. It is further ordered that the Carthage, Watertown, and Sackets Harbor Railroad Company pay to the attorneys for the said Addison L. Upham the sum of $2.67, disbursements incurred by the said Addison L. Upham on account of this motion.”

      D. G. Griffin, for app’lt; Smith & Smith, for resp’t Addison L. Upham.
   Hardin, P. J.

After the commencement of this action (October, 1891) to foreclose a mortgage given to the plaintiff, as trustee, and to his co-trustee, Sherman, a tender was made by the Carthage, Watertown & Sackets Harbor Railroad Company on the 6th of January, 1892. Thereafter an amended answer was served by the Carthage, Watertown and Sackets Harbor Railroad Company alleging the tender; and it is alleged in the answer of the Carthage, Watertown and Sackets Harbor Railroad Company that the money was on or about June 4, 1892, “duly paid into this court to the credit of this action, by paying the same to the county treasurer of Jefferson county, that being the county in which this action was triable.” The issues joined by the answer were put to a trial at a special term in Jefferson county, and, the court found that the tender was sufficient, and dismissed the plaintiff’s complaint on the merits, with costs to defendants, and ageneral judgment to that effect was entered upon the decision so made. In the findings made it is stated “that the said moneys and checks so desposited with Yermilye & Co. remained there on such tender until on or about June 4, 1892, when they were duly paid into this court to the credit of this action, by paying the same to the county treasurer of Jefferson county, that being the county in which this action was triable; and the said moneys can now be had by the parties entitled thereto upon the delivery of the bonds and coupons aforesaid.” It was found that the mortgage contained no provision which required the mortgagor to pay the expenses and compensation of the trastees..

There has been no formal judgment or order entered authorizing the county treasurer to pay out of the court the funds so deposited with him. The trustees have a lien on said. funds for their compensation. Woodruff v. N. Y., L. E. & W. Railroad Co., 129 N. Y. 27: 41 St. Rep. 193. The county treasurer has not been authorized by any formal order to pay over the fund which came into his hands as the fruit of this action, and no adjudication has been made which discharges the lien which the trustees have upon such fund. The extent of that lien ought not to be determined without notice to the Lincoln National bank. E the county treasurer had applied for instructions as to the fund,, and given notice of his application to the bdnk, he might have obtained the direction of the court as to the fund, the extent of the lien thereon of the trustees, and an allowance of such fees as he was entitled to receive. Instead of adopting that course, he has made the motion which led to the order now under review. In his notice of motion he asks for an order “adjusting his fees as county treasurer in the receiving and paying out in this action the moneys,” etc. He thus assumed that he had received and paid out the moneys as an officer of the court.

The special term has by its order allowed the county treasurer $500, to be paid by the Carthage, Watertown and Sackets Harbor road. The Carthage, Watertown and Sackets Harbor road has not appealed, and therefore is not entitled to complain ; and, as the appellant does not ask to have that part of the order reversed, there is no occasion to interfere with that part of the order. The foregoing views lead to a modification of the order.

Order modified by striking out all of the second paragraph, beginning with the words “It is further ordered,” and ending with the words “shall be discharged from all further liability in relation to the said fund,” and, as so modified, affirmed, without costs.

Martin, J., concurs. Merwin, J., dissents.


text:
    William H. Starbuck, Resp’t, v. Housatonic Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    1. Corporation—President—Salary.
    A president of a corporation, if a stockholder or director, can make good his claim for salary only by showing a contract therefor.
    2. Same.
    The resolution, fixing the salary of the president was held to he continuing and not to relate solely to the incumbent in office at the time of its passage.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Wheeler H. Peckham, for appt; David McClure, for resp’t.
   O’Brien, J.

The action was brought on a check given by the defendant to the plaintiff in part payment of his salary as president of the defendant’s railroad. The answer denies that defendant made or delivered such check, and alleges that at the time the check was drawn plaintiff was president of defendant, and was about to resign; that he caused such check to be drawn without any authority of defendant’s board ; and that at the time defendant was not indebted to plaintiff. The answer contains a counterclaim for $8,716.67, representing cash of defendant’s obtained by plaintiff, which, with the check, made up the total amount claimed by him for salary president. On the trial it was shown that the check in question was drawn by the plaintiff’s direction, to pay him an amount, which he claimed defendant had agreed to pay for salary as president of defendant from December, 1887, to June 15, 1892. Defendant claimed that it had not agreed to pay plaintiff any salary, and the question at issue was whether defendant had so agreed. The- plaintiff, being both a stockholder and a director in the company, could not sustain his claim as president unless he brought himself within the well-settled rule of law that such claim must be founded on a contract entitling him to compensation. Mather v. Eureka Mower Co., 118 N. Y. 632; 30 St. Rep. 102; Smith v. Long Island Railroad Co., 102 N. Y. 193. 1 St. Rep. 403. In the further case it is said:

“It is well settled that a director of a corporation is not entitled to compensation for services performed by him as such, without the aid of a pre-existing provision expressly giving the right to do it.”

And in the latter case, wherein it appeared that the person suing had been appointed secretary of a railroad corporation in which he was not a director or stockholder, it was held that, to-entitle him to a reasonable compensation for his services, it was not essential that a rate of compensation should be agreed upon, or that there should be an express agreement to pay a compensation ; and, in the course of the opinion, the distinction between a person standing in this position, and one who, being a stockholder and director, performed services, is pointed out, it being therein said:

“The rule that directors or trustees cannot recover for services rendered for a corporation upon an implied promise is an application of the general rule applicable to trustees.”

And in Kelsey v. Sargent, 40 Hun, 156; 2 St. Rep. 269, we find a quotation from Pierce on Railroads which says :

“The directors are presumed to perform the duties of their trust gratuitously. They are not entitled to compensation, even for services outside of the ordinary duties of their offices, unless it is expressly stipulated before the services are rendered, but an -express contract by the board to pay a fixed or reasonable sum is binding. Some authorities require a vote or resolution as evidence of the agreement, while others do not require such formal action as essential, where there is an actual employment A subsequent vote of the board to pay a director for his services, where there was no previous agreement, is not binding. The expectation of a director that he was to receive compensation, there being no previous vote or promise, does not entitle him to it. The rule which excludes compensation applies to the president chosen by the directors from their own number, and also to a treasurer when a director, but not to officers and agents, not being directors, who are entitled to recover quantum meruit, where no compensation is fixed.”

See, also, Barril v. Calender Insulating'and Water-Proofing Co., 50 Hun, 258; 19 St. Rep. 877; Gill v. N. Y. Cab Co., 48 Hun, 524; 16 St. Rep. 236.

These- authorities sustain appellant’s position that a president of a corporation, if a stockholder or director, can make good his claim for salary only by showing a contract therefor. Inferences of a contract from services performed by request, which obtains between individuals, are not allowed between a president and his corporation. On the contrary, the legal inference from these facts is that services as president are to be rendered without compensation.

At the close of the case the defendant moved for a dismissal of the complaint, or a direction of a verdict in its favor, on the ground that there was no evidence that the plaintiff had any contract or agreement with the defendant for the payment of a salary. If, upon an examination of the evidence, this claim is supported, that there was no proof of an agreement sufficient to present it as a question for the jury, then either of defendant’s motions should have been granted. The testimony shows that prior to 1869 it had been the rule of the company to pass a resolution annually with regard to salary, either naming the president who was to receive the same, or expressly limiting the effect of the resolution to the year ensuing its passage, but in 1869, subsequent to an election, a resolution was entered upon the books of the defendant as follows: “ Resolved, that the salary of the president be fixed at the sum of $3,000 per annum.” In 1870, the amount having bepn increased^ a new resolution was necessary, which is recorded on the minute book as follows: “Votes that the salary of the president shall be $5,000 per annum.” Plaintiff’s immediate predecessor in the office of president of the defendant was a Mr. W. H. Barnum, who was elected in February, 1872, and, remained in office for 15 years. Some months after the election of Mr. Barnum, and in the month of September, 1872, the board of directors passed a resolution in the following terms: ■“Votes to the president a salary of $5,000 a year.” And it was shown that, without any other action of the board, for nearly 15 years thereafter, Mr. Barnum received a salary as president of the road in accordance with that resolution. , It will be noticed that this resolution is general in terms ; that it does not mention the name of Mr. Barnum, nor is it limited to the particular year, having been passed some months after Mr. Barnum was elected ; but it votes a salary to the president; and the inference, therefore, is that during the period' that Mr. Barnum was president both he and gthe defendant regarded the action thus taken in 1872 as a standing or continuing resolution, because under it, and pursuant to its terms, Mr. Barnum received the salary. It is not claimed that upon plaintiff’s accession to the office this resolution was in any manner modified or rescinded, and it was therefore competent evidence upon the question of defendant’s attitude relative to the matter of salary. Standing alone, it would not make an agreement; and, while assuming it to be some evidence expressive of the intention of the company to pay its president a salary of $5,000, we must go one step further, and determine the plaintiff’s, position in respect thereto. It is not claimed that the plaintiff in any way waived his right to compensation ; his testimony being, to use his own language ."

“ I knew the salary was $5,000 a year. * * * I do not-know of any action of the board of directors after I was elected president upon the subject of salary. I never supposed it to be-requisite. * * * I have examined the books of minutes of the defendant company many times. The first time I examined the book was shortly after I was elected president. I looked to see what the book of minutes said as to the salary of the president. * * * At the time I was elected there was no resolution passed upon the subject. I did not think it was necessary. * * * When I became president, I became aware of the existence of a resolution in the minutes of the board fixing the-salary at $5,000. When I became president I may not have known of it,—of the existence of that resolution that day,—but I knew that the president had received $5,000 for many a year, for I had seen his check. I knew that the president had received that salary always, or for a great many years, and that president, was William H. Barnum.”

This testimony-tended to,prove that the plaintiff entered upon the discharge of his duties with knowledge of the resolution, and with expectation that he was to receive the salary ; and considering it in connection with the peculiar phraseology of the resolution and the conduct of the parties, including a ^discharge of the-duties of the office of president, it presented for the jury these questions: (1) Was it the purpose of the resolution to fix the salary of the president, whoever he might be, at $5,000 a year ?" (2) Did the plaintiff understand that the resolution was so general as to fix the salary of any person who should happen to be president at $5,q00 ? If so, did he with such understanding, and in full belief that he would be entitled to that rate of compensation, enter upon and perform the duties of president? An affirmative-answer to both questions would, of course, entitle the plaintiff to-judgment. It was not, therefore, error for the .court to submit the case to the jury.

The only exception taken to the manner of submission was to-this portion of the charge: The language of the resolution is broad enough to cover the fixing of the salary of the president of this corporation at $5,000 a year.” It is insisted that by so charging the court conveyed to the jury the impression that, under such resolution, the plaintiff was entitled to a salary, if the evidence showed that he, and he alone, thought that sucnsalary was due to him thereunder; thus ignoring the company’s understanding in passing such resolution: If the charge were otherwise silent upon this question, we should regard the criticism as meritorious. But, as it abounds in statements to the effect that the plaintiff could not recover under the resolution alone, it must be said that the portion of the charge excepted to was properly qualified. It was, indeed, but a step taken in thecorderly presentation of the, issue. The jury had to be advised that if the corporation intend ed to fix the salary of the president, whoever he might be, at $5,000, the resolution was broad, enough to accomplish that purpose ; and, considered in connection with the rest .of the charge, the language excepted to meant that and nothing more.

The appellant insists that it was error to receive the check sued upon in evidence, the claim being that when the objection was made the evidence showed that it was not legally issued, and that its delivery was the culmination of a conspiracy between plaintiff and the vice president to take this money from the treasury of the company; and, further, that a by-law of the company provided that “the treasurer shall have charge of the finances of the com-pony, subject to the direction of the board of directors”; and, further, that the voucher for the check did not conform to the requirements of the by-laws. The by-law relating to the duties of the treasurer has regard to the custody of the funds, and, as clearly appears, has no relation to the manner in which checks shall be issued by the corporation. The criticism upon the voucher we assume to be that it- is not signed by the officer whose duty it was to examine it, and ascertain whether it was correct, and that it was not approved for payment by the vice president. It must be remembered, however, that it was president "of the company to the vice president and general manager, whose duty it was to approve of the payment, and it was examined and registered by the auditor. But, apart from this, if the check was issued by the proper officers for a valid indebtedness, we do not think that upon the question of liability the voucher would have, any important bearing. The check was signed and countersigned by the proper officers, and the authority for issuing it was not only the examination made by the auditor, but the request of the vice president, who, together with the president, had authority to issue checks of the defendant company.

The final objection, .that its delivery was the culmination of a conspiracy between the plaintiff and the .vice president to take the money from the treasury, necessarily relates to the merits of the controversy. If it were an indebtedness of the company to the plaintiff for which he was entitled to receive the check, then this criticism would be untenable. If, on the other band, the plaintiff had no right to the money represented by the check, or to the other moneys taken from the treasury, then the criticism would be justified. The way in which the payment was sought to be enforced, just at the time when the plaintiff was about to resign and was turning over the company to new directors : the payment to Stephenson of the cash obtained upon the check ; and the failure immediately to apprise the directors of the action taken in the assertion of his claim to salary,—justly subjected the plaintiff’s acts to criticism and suspicion. They were, however, fully gone over in the testimony and in the charge, and were proper considerations for the jury, but upon this appeal we have refrained from dilating at any length upon them, for the reason that we think the merits of the appeal must depend upon the solution of the crucial question, which was presented upon defendant's motion to dismiss the complaint or direct a verdict in its favor for want of evidence. This we have examined with care, and in the light oE the able argument made to support appellant’s -contention, and have concluded that it is not well founded. If the evidence was sufficient to sustain the verdict in favor of the existence of a contract, thus upholding the plaintiff’s right to the moneys which he took, together with the amount represented by the check, the manner in-which he secured the money or the use that he made of it, has no direct bearing upon his right thereto, and for this reason we do not feel that it is necessary to comment on the testimony which has no direct bearing upon the legal questions presented on this appeal. The judgment should therefore be affirmed, with costs.

All concur.


author: Ward, J.

text:
    Andrew Wattengel, Pl’ff, v. Mary Schultz, Individually and as Administratrix, etc., et al., Def'ts.

      (Supreme Court, Niagara Special Term,

      Filed January 27, 1895.)

    1. Mortgage—Insurance.
    The wife of a mortgagor, though she has only an inchoate dower interest in the premises, can enter into a binding covenant, as part of a mortgage, to have and keep the buildings insured for the protection and security of the mortgagee.
    3. Same.
    The husband’s covenant to insure the premises, if not performed in his lifetime, can be enforced against his estate through his personal representatives, to the extent of his assets in their hands.
    3. Same.
    Where the first mortgage requires the mortgagor to insure for the benefit of the mortgagee, and the second mortgage does not contain such provision the insurance, incase of loss, will be applied to satisfying the first mortgage.
    Action to foreclose a mortgage.
    Patton, Vroman & Fish, for pl’ff; Simpson Harrington &. Premus, for def’t Mary Schultz; Proton & Jeffery, for def’ts administrators of Charles F. Worth; W. J. Hutchinson, for def’t Thomas Cumpson.
   Ward, J.

This action is brought to foreclose a bond and mbrt gage. The bond was dated July 15, 1890, and given to secure to the plaintiff the payment of $1,000, five years from date, with semi-annual interest, and was executed by Frederick Schultz and Charles F. Worth, and contained an insurance clause as follows :

“ And it is also agreed by and between the parties to these presents that the said parties of the first part shall and will keep the buildings erected and to be erected upon the lands [covered by the mortgage] insured against loss or damage by fire, by solvent insurers, and in an amount approved by the party of the second part, and assign the policy and - certificate thereof to the said party of the second part [the plaintiff], his heirs or assigns; and in default thereof it shall be lawful for the said party of the second part to effect such insurance, as mortgagee or otherwise, and the premium or premiums paid for .effecting and continuing the same shall be a lien on said 'mortgaged premises, added to the amount secured by these presents, and payable on demand, with interest.”

A mortgage of the same date was executed to the plaintiff by the said Frederick Schultz, and by his wife (the defendant Mary Schultz), to secure the payment of the bond, and contained the same insurance clause as in the bond. The property covered by the mortgage was a lot in North Tonawanda, Niagara county, 50 feet front by 125 feet deep, and had two buildings thereon, one used as a residence and a grocery store, and the other as a store and saloon. This mortgage was recorded. Frederick Schultz got the buildings insured for $1,200, and died intestate, September 17, 1892, leaving the insurance in force. The defendant Mary Schultz was appointed the administratrix óf his estate, after which the companies issuing these policies, on account of labor troubles at Tonawanda canceled those policies, or refused to continue them in force; and the administratrix procured insurance on the buildings in four other companies, two of which were made payable, in case of loss, “ to the estate of Frederick Schultz,” for $1,500, and covered the store and saloon, and the other two payable to “Frederick Schultz," for $500, and covered the dwelling house and grocery. These four policies were all taken out at the same time, and the premium paid by the widow out of her own means, in part, and the residue out of the proceeds of prior insurance upon the property of the deceased. Afterwards, and while the four policies were in force, the buildings were destroyed by fire, and thé administratrix made proofs of loss, and the loss, after some controversy, was settled with the insurance companies at$908.32, which was received by her, and which she still retains. The deceased did not assign the policies taken out by him to the plaintiff, nor was there any reference therein to the plaintiff’s mortgage, nor did the plaintiff avail himself of the right given him in the insurance clause in the mortgage to insure the buildings for his own benefit Subsequent to the recording of this mortgage, and in August, 1891, Frederick Schultz and his wife executed another mortgage upon the same premises to the defendant Thomas Cumpson, to secure the payment of a bond given by them for the sum of $650, in two years, with interest. Nothing was paid on this bond, and there was no covenant in, either the bond or mortgage for insurance of the building for the benefit of the mortgagee. Nothing was paid on the principal of the first mortgage, and there was a default in interest of $30, due sometime in January, 1894; and in June, 1894, this action was commenced to foreclose the plaintiff’s bond and mortgage, and relief was also -asked to have the lien of the mortgage declared upon the insurance moneys in the hands of the administratrix, and have the same applied upon plaintiff’s mortgage. The deceased left some children, and they, with the widow and administratrix, were made parties. Charles F. Worth died before this action was commenced, and his administrators were made parties. The estate of the deceased Schultz was largely insolvent.

The administratrix, Mary Schultz, claims that the insurance money should be distributed among the general creditors of the deceased; the plaintiff sharing with them if there were a deficiency on the sale of the remaining real estate, which should be first sold, and the proceeds applied on the plaintiff’s'mortgage. The defendant Cumpson contends that the plaintiff has a lien as well on the moneys as on the land, and the money should first be applied to the plaintiff’s mortgage. The administrators of Worth ask for an adjudication discharging the estate of Worth from the obligations of the bond in suit, because Worth was a surety for Schultz, with the plaintiff’s knowledge, and it was the plaintiff’s duty, on the failure of Schultz to get the premises insured for the plaintiff’s benefit, to avail himself of the right to do so, and his not doing so was such negligence on his part as to discharge the surety. These questions are interesting, and somewhat novel. The administratrix has money that represents the real estate destroyed, that was subject to the lien of the plaintiff’s mortgage. As we have seen, the deceased, together. with his wife, covenanted, as a part of the mortgage, to have and keep the buildings insured for the protection and security of the plaintiff. Although the wife had only an inchoate dower interest in the premises, she could still enter into a binding agreement of this character.' Chapter 381 of the Laws of 1884 has so enlarged the powers of a married woman that she can make any contract. That any unmarried woman can, except contracts directly with her husband, and her contract with third persons is valid, though executed jointly with her husband. Matter of Grove, 20 Abb. N. C. 164; 13 St. Rep. 179, and cases there cited. The husband’s covenant to insure the premises, if not performed in his lifetime, can be enforced against his estate through his personal representatives, to the extent of his assets in their hands. Chamberlain v. Dunlop, 126 N. Y. 45, 52; 36 St. Rep. 373; Kernochan v. Murray, 111 R. Y. 306; 19 St. Rep. 491. In insuring a mortgage interest, it is not the debt secured by the mortgage-that is insured, but the interest of the mortgagee in the property upon which the security depends. Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 N. Y. 343. And.the proceeds of the insurance are not to be be distributed, when upon real estate, as real estate, and not as personal property. Wyman v. Wyman, 26 N. Y. 253; Wood, Ins. 863.

There is nó question in the casé between the insured and the insurer, but the question simply is, what shall be done with the money that is concededly the result of the destruction of a portion of the realty that was subject to the lien of the plaintiff's mortgage ? In Parry v. Ashley, 3 Sim. 97, the owner of real estate took out a policy on a building, which was running at his death, and was renewed by his executrix, who was also a legatee and devisee of his real and personal estate, which was, however, charged with an annuity to his widow. The building was burned, and, on a bill by the annuitant, the money was ordered to be brought into court to await further directions; the vice chancellor saying that he thought it could riot be considered as part of the testator’s general personal estate, but that it was affected with a trust for the benefit of the parties interested in the real estate. 'This case is cited with approval in Herkimer v. Rice, 27 W. Y. 181. The insurance taken by deceased of $1,200, if continued to the time of the fire, would have inured, under the covenant to injure, to the benefit of the mortgagee, though there was no recognition of the covenant in the policies themselves, or assignments thereof to the plaintiff. Cromwell v. Brooklyn Fire Insurance Co., 44 N. Y. 42. Dunlop v. Avery, 89 N. Y. 593; Wheeler v. Insurance Co., 101 U. S. 439. The administratrix had the right to -execute the covenant of the deceased, and it .was her duty to do so; and when she took out the four policies in the name of the deceased, and of his estate, the presumption is that she did it in the performance of that covenant, and as a continuation to the extent thereof, of the insurance that had been effected by the deceased. Superadded to this is her own personal covenant to the same effect, which she is bound to perform ; so that this presumption is in the line of her obligation, both as an individual and as an administratrix, and she cannot be permitted now to assert otherwise. Her paying of the portion of the premium out of her own means, and a portion out of the property of the estate, was consistent with this liability. Her claim, as a witness, that she obtained these insurances for the benefit of the general creditors of the deceased does not overcome this presumption. The equity of the plaintiff to this fund is superior to that of the general creditors of the estate, and constitutes a specific lien, which follows this fund into the hands of the administratrix, who holds it as a trustee for the satisfaction of the plaintiff’s mortgage. Wheeler v. Insurance Co., 101 U. S. 439, and cases cited at page 442. The junior mortgage held by the defendant Oumpson does not contain a covenant for insurance, and this defendant does not claim a lien upon the money held by the administrators, and equity requires that the insurance should first be applied, after deducting the costs and expenses of the action, upon the plaintiff’s bond and mortgage, before resort is had to the land upon which the junior mortgage is a lien. There is no force in the position of the counsel for the administrators of Worth that, as' a surety, he was discharged from the obligation of his bond by reason of the plaintiff’s negligence, because no such negligence is shown as effects such a discharge. The principal sum secured by the plaintiff’s mortgage is not yet due, the only default being in the payment of interest. The mortgaged premises are so circumstanced that a sale of the whole land will be most beneficial to the parties, and, as the insurance money will not be sufficient to pay the plaintiff’s mortgage, costs and expenses of the action, resort must be had to the land, which must be sold, and which the court has power to order, under section 1637 of the Code of Civil Procedure. And by that section the proceeds of the sale may be applied in satisfaction of- the whole sum secured by the mortgage, with such rebate of interest as justice requires. Ás the amount secured by the mortgage is upon interest when the application is made, interest will be allowed up to that time. I can see no difficulty in applying the insurance moneys, after deducting the costs and expenses of the action, upon the principal of the plaintiff’s mortgage, after deducting accrued interest. Interest will then cease upon the principal sum applied, and the sale of the land can proceed to secure the balance unpaid. The plaintiff must have judgment as indicated by these conclusions, with costs. Costs are ais» allowed the defendant Cumpson, these costs to be taken from the insurance, money. Costs are not allowed for or against any other of the parties to the action, but the guardian for the infant defendant may have a suitable allowance for his services and disbursements upon filing an affidavit as to what they are, to be paid out of the insurance money.


author: Herrick, J.

text:
    John N. Briggs, Pl’ff, v. Knickerbocker Ice Company, Def't.

      (Supreme Court, Albany Special Term,

      Filed January 21, 1895.)

    I. Riparian Owners—Ice.
    Riparian owners upon navigable rivers have no title to the ice which forms on such streams, but the ice belongs to the first appropriator.
    3. Statutes—Remedies.
    When rights are conferred by statute, and remedies provided therein for their protection, such remedies are exclusive.
    3. Injunction—When not granted.
    An injunction will not be granted when the plaintiff has an adequate remedy at law.
    4. Same.
    The difficulty of establishing by proof the amount of the plaintiff’s damages in any case where his property or rights have been interfered” with, is not taken into consideration by the courts in determining whether an injunction should, or should not, be granted.
    Motion to vacate an injunction.

      Nathaniel Niles and H. A. Peckham, for pl’ff; John A. Delehanty, for def’t.
   Herrick, J.

This is a motion to vacate an injunction heretofore obtained by the plaintiff, restraining the defendant from cutting or interfering with the ice in the Hudson river in front of the plaintiff’s premises and ice house, between the center of the channel of said river arid the shore thereof, whereon the plaintiff’s house is located, and said premises situated, 'and around which ice the. plaintiff has placed safeguards, pursuant to chapter 388 of the Laws of 1879. The granting of injunctions preventing the cutting or interfering with ice in the Hudson river, under the statute above referred to, has been common. I have not been .referred to, nor have I, in the brief time that I have been able to give to this-case, been able to find, any reported decision in any manner bearing upon the statute in question, and I do not know whether the question brought before me has been heretofore raised under said statute. The’Hudson river, at the point in question, is a navigable stream, and, under the law of this state, riparian owners have no ownership in the bed of such streams. And I think it may be regarded as the law of this state that the riparian owners upon navigable streams have no title to the ice which forms on such streams, as an incident to their ownership of the bank, but that the ice belongs to the first appropriator. The legislature of the state, by chapter 388 of the Laws of 1879, his conferred upon the owners or occupants of ice houses and premises upon the banks of the Hudson river proprietary rights in the ice to the center of the channel thereof, upon such owners or occupants complying with certain conditions therein set forth ; and the plaintiff seeks to bring himself within such statute. It is a statutory right that he is seeking to enforce. The statute, after providing as to who may exercise this right of proprietorship, provides as follows:

“Any person trespassing upon or taking the same for commercial purposes shall be liable to the owner or occupant for the value of the ice so taken or for any injury done to the same.”

It thus provides a remedy which he shall have for a violation of his rights. The remedy it provides is one at law, “for the value of the ice so taken, or for any injury done to the same.” Such a liability is one to be enforced by an action for damages, not by an action in equity. It is a rule of construction of statutes that when rights are conferred by statute, and remedies provided therein for their protection, such remedies are exclusive. Jessup v. Carnegie, 80 N. Y. 441; Matter of New York, L. E. & W. R. Co., 110 N. Y. 374; City of Rochester v. Campbell, 123 N. Y. 405 ; 34 St. Rep. 77. I do not undertake to say at this time that when the statutory remedy will afford no redress, or when the defendant is pecuniarily irresponsible, an injunction may not be granted. It is not necessary to decide that question, for there is no claim here that the defendant is not pecuniarily responsible, and no allegation of irreparable damages.

It was claimed upon the agreement that, in addition to the "rights under the statute, the plaintiff was also entitled to be protected in his possession of the ice, under his rights at common law, as the first appropriator of the ice. Without stopping to consider the question as to whether he has any such rights to be protected, but assuming that he has, the question arises whether he is, under such circumstances, entitled to protection by injunction; the general, rule being that an injunction will not be granted when the plaintiff has an adequate remedy at law. That the "owner of ice can recover damages against one wrongfully appropriating it has been established in this department, in the case of Van Rensselaer v. Mould, 77 Hun, 553; 60 St. Rep. 394, as well as in other reported cases in this and other states. See People's Ice Co. v. The Excelsior, 44 Mich. 229. The difficulty of establishing by proof the amount of the plaintiff’s damages in any case where his property or rights have been interfered with, I believe, has never been taken into consideration by the courts in determining whether an injunction should or should not be granted. The violation of some right of a party which is not susceptible of being measured by damages, which has no intrinsic value, but is sentimental in its nature, as the desecration of a family graveyard, or the appropriation of family heirlooms, and rights of that nature, not commercial, and not measurable by money, may appropriately be restrained by injunction. But the right in question here is purely of a commercial nature, and the injury to the owner thereof can be compensated by money. Without discussing the other question raised in the case, I think, for the reason above stated, the injunction should be vacated. Let an order be entered accordingly, with $10 costs.


author: Bradley, J.

text:
    Tunis H. Denise, Pl’ff, v. The Village of Fairport, et al. Def’ts.

      (Supreme Court, Monroe Special Term,

      Filed January, 1895.)

    1. Municipal corporation—Sewers.
    Under the charter of the village of Fairport, a new sewer may be constructed in any street when one, previously constructed, has become inadequate.
    3. Same—New sewer.
    A sewer, created by the use of new and larger pipe, laid deeper and not in the same place in the street, is a new sewer.
    3. Same—Assessment.
    In an action to enjoin an assessment, the question whether the assessors erred in making it will not be considered.
    4. Same—Ratio of benefits.
    The fact that the assessors adopted a uniform rate on one street and a different uniform-rate on another street, does not raise the presumption that they failed to assess according to the ratio of benefits.
    5. Same—Verification.
    The charter of defendant does not require a local assessment to be verified by the oath of the assessors.
    Action to enjoin the collection of an assessment.

      Hubbell & McGuire, for pl’ff; F. S. Randall and W. F. Cogswell, for def'ts.
   Bradley, J.

The charter of the village of Fairport provides that:

“Whenever any new sewer shall be constructed, excepting a fewer in South Main street and excepting a sewer which shall be -constructed for the purpose among other things of draining the waters of Robinson swamp (so called), the entire expense thereof shall be assessed upon and paid by the premises deemed by said rustees to be benefited thereby excepting the necessary expense •of constructing man-holes and of crossing public streets or parts, thereof, which shall be paid by the village." Laws 1881, c. 638, § 45, as amended by Laws 1887, c. 235, § 1.

In the year 1878 a sewer was constructed in West avenue in the village, from Woodland avenue east to a point about 300 feet west of Main street, where it was connected with another sewer-extending east into Main street; thence into the canal. In 1884 there was an extension of the West avenue sewer westerly from Woodland avenue. This was the situation in 1892, when proceedings were taken for the construction of the sewer in question from Woodland avenue in West avenue east to Main street, and thence in the latter street to the canal. The contract was let, the sewer was constructed, and to pay the expense of it the assessors were, upon the assumption that it was a new sewer, directed to' assess, the expense of it, except that of constructing manholes and crossings of public streets, upon the premises benefited by it, and the premises deemed by the trustees so benefited were one tier of lots on each side of West avenue from Main street to the east line of premises owned by Mrs. Harriet Eldridge, one tier of lots on each side of Perrin street from West avenue to Church street, one tier of lots on each side of West street from West avenue to Church street, and one tier of lots on each side of Woodland avenue from West avenue to Church street. The tiers of lots so mentioned were those abutting on such avenues and streets. The assessment was made by the assessors accordingly, and a list, with warrant annexed, was delivered by the trustees to the collector to collect the assessments. The amount assessed against the plaintiff’s premises was $33.41. The assessment is for several reasons alleged to be illegal and void. The leading one on the merits is that this is not a new sewer, and therefore the assessment of the expense of it upon the premises deemed benefited by it was without authority. The sewer put in West avenue in 1878 was an iron pipe nine inches in diameter, and was laid to the depth of about eight feet below the surface. It failed to supply the means of drainage required. The sewer in question is an iron pipe fifteen inches in diameter, the bottom of which as laid is about two feet lower than that of the old one. It was not laid on the line of the old sewer, although in some places the lines of their location may have come together. It is with much force urged on the part of the plaintiff that it was the legislative intent to relieve the abutting premises on any street in the village from local assessments for the expense of more than one sewer in such street, and that any sewer afterwards put in the street is not a new one within the meaning of the charter, but should be treated as a repair or enlargement of it. The only limitation or qualification of the power to make local assessments for such improvement, to which my attention has been called, is in the provision before mentioned of the charter of the village. The authority to make such assessment for that purpose is thus confined to a new sewer. And the power to construct new sewers not being, by the terms of the statute, limited to one, may be deemed a continuing power, and may be exercised whenever a new sewer, in the judgment of the municipal authorities, is deemed necessary. 2 Dill. Mun. Corp. 686, 780; Matter of Opening of Furman Street, 17 Wend. 649, 667 ; McCormack v. Patchin, 53 Mo. 33 : City of Kokomo v. Mahan, 100 Ind. 242 ; McKevitt, v. City of Hoboken, 45 N. J. Law, 482. The trustees, deeming the first sewer unfit for the purpose designed, concluded to construct another one in West avenue, and caused it to be done. It is a new one in the sense that it was created by the use of new and larger pipe, laid deeper, and not in the same place in the street. It makes the sewer larger there, and in that sense it may be said to enlarge the sewer in that street. But yet it is not an enlargement of the old sewer otherwise than by the substitution -of a new one. The sewer consisted only of the iron pipe laid in the ground. The nine-inch pipe of the old sewer could not be, and ■was not, enlarged. The larger sewer consists of another pipe, put into a new and deeper trench, and covered with earth, without-any relation to the old one other than its purpose. In common parlance it would be called a. new sewer. And if, within the meaning of such provision of the_ charter, a new one can succeed! another in the same street, this must be so treated. There may be-reasons for charging the adjacent premises by local assessment for only the first improvement of that character, and it is possible-that such limitation was contemplated. But, if that had been the purpose, it could easily have been so expressed as to permit no-controversy about the construction of the statute in that respect. The cited case of People v. Brooklyn, 21 Barb. 484, had relation to a local assessment under the charter of the city of Brooklyn,, which contained a provision that the common council, under the restriction mentioned, should have power to cause improvements to be made in streets and public squares, and that the expense o£ all such improvements, except for repairs, should be assessed on the property benefited thereby. Laws 1850, c. 144, tit. 4, § 1. It was there held that the setting of new curbstones and gutters in a street instead of the old ones came within the meaning of repairs, and that for such reason, as well as others, the local assessment was illegal. There the necessity for the substituted curb and gutter had arisen from dilapidation of those previously constructed, and the work there in question was supplied by way of reparation. In the present case the question is not entirely free-from doubt. But, as the old sewer had not served the purpose-designed, and the recent one was in pipe and structure entirely new, and substantially different from Woodland avenue to its outlet and canal, it seems to me that it must be treated as a new sewer to that extent; and not rendered otherwise by the fact that, it connected at that avenue with the extension of the nine-inch-pipe previously constructed.

The statute provides that, whenever any local assessment shall be necessary, the assessors, when notified by the trustees, shall examine the premises deemed by the trustees to have been benefited by the improvement, and assess the same upon such premises according, in the judgment of the assessors, to the ratio of benefits received. Laws 1887, c. 235, § 1. It is urged that it was not done in the judgment of the assessors according to such ratio,, because, without the distinction which should have been observed by them, they assessed the premises abutting on West avenue-at 20 cents and a fraction of a cent per front lineal foot and those upon the other streets included in the local assessment at five cents per front foot, except lots at the corners of those streets and! West avenue, which were assessed on such other streets at the nominal sum of one dollar each. It does not appear that the lots-on the respective streets differed in depth, and, if it had, that may not necessarily have required the assessors to distinguish between them in the amount per front foot unless some of them were deemed benefited to greater distance from the street than others-by the sewer. And the fact that a very few of the lots were vacant did not necessarily require the conclusion that the assessors failed to make the assessment according to their judgment, noF will it be assumed that they did not, unless it is made so to appear. This is not a proceeding to review the assessment, and therefore the question whether they erred in judgment in making it is not here for consideration. Hoffeld v. City of Buffalo, 130 N. Y. 587 ; 42 St. Rep. 379. The fact that they adopted a uniform .■sum per front foot on West avenue, and a different and uniform •one on the others streets, does not raise the presumption that the ■assessors failed to make the assessment according, in their judgment, to the ratio of benefits resulting to the premises respectively from the improvement. In Elwood v. City of Rochester, 43 Hun, 102; 6 St. Rep. 132 ; 122 N. Y. 229; 33 St. Rep. 260, the trouble was that the commissioners, in making the assessment, disregarded the determination and direction of the common council, and proceeded on a basis in violation of such direction. In People ex rel. Parker v. County Court of Jefferson Co., 55 N. Y. 604, it appeared by the evidence that the apportionment of the assessment was made by the commissioners on an erroneous principle; and it may be observed that, as- that was a proceeding taken to review the assessment, it was open to consideration on the merits. Laws 1868, «. 180, § 2. It is not so in the present case. Since the assessors had authority to make a special assessment upon the premises included in it, the inquiry as to the apportionment of it is restricted to the question whether it was done according, in their judgment, to the ratio of benefits received; and it may be presumed that they did so, until the contrary is shown. It does not fairly appear by the evidence that they failed to exercise their judgment with a view to such result of the assessment.

The suggestion that sums unauthorized were included in the assessment does not seem to require the expression of consideration. The contention that it was void for such reason is not sustained by the view taken of the evidence.

It is insisted that the assessment was invalid for the reason that the roll was not completed before the review day, or until after-wards. Notice of time and place for such review was given, and -on the grievance day slight changes were made in the number of° feet front of a few parcels of the premises. Some few of the entries in that respect had not before that day been entered upon the assessment roll, as distinguished from the assessors’ field book. The names of the owners had been inserted in the assessment roll, and in most cases the number of feet front of their premises. The field book was present on that day, and use was made of it in connection with the assessment roll, and by its aid, and with such slight changes, extension of the figures was made upon the assessment roll. The purpose of the notice is to enable persons to appear before the assessors, and have such corrections madejas they are entitled to. In the sense requisite to the accomplishment of Such person, I think, the assessment roll was completed, and the extension upon it for its perfection as it was made was permissible without'prejudice to its legality.

It is further urged by the learned counsel for the plaintiff that the assessment is void because it was not properly verified by the oath of the assessors. If this proposition is sustained, the defect is fatal to the assessment as represented by the roll. Brevoort v. City of Brooklyn, 89 N. Y. 128; Shattuok v. Bascom, 105 N. Y. 39; 6 St. Rep. 775. My attention has been called to no statute, nor have I found any, prescribing an oath or affidavit for the verification of a local assessment by the assessors of the village of Fair-port. The roll in question included also a general assessment of the assessable real property in the village and the personal property of its inhabitants to pay the expenses, amounting to about $500, of the sewer, not the subject of local assessment. If that portion of the roll were the subject of consideration, a more serious question would arise than seems to be applicable to the special assessment.

The affidavit annexed to the roll is as follows:

“ We, the undersigned, assessors of the village of Fairport, ¡Ni Y., depose and affirm that we have set down in the foregqing assessment roll all the personal and real estate, with the estimated value thereof, situated in the said village, according to our best information and judgment.”

It'was subscribed and sworn to by two of the assessors. This is not a very complete verification of the roll for any purpose. It is insisted that the same oath was requisite, to the assessment roll in question as the town assessors are required by statute to add to their rolls. Laws 1885, c. 201. That might be so as to the general assessments in the roll of the village assessors, but no complaint is made of the general assessment, or of the amount of tax extended upon it. This action, as appears by the complaint, is founded solely upon the charge that the local of special assessment, is illegal. The town assessor’s oath is wholly inapplicable to the local assessment,, upon which alone the question here is presented. Although both are in the same roll; it was not necessary that they should be thus united. And unless some statute which has not come to my attention exists, there is no oath to a local asaessment in. that village required of the assessors who make it. They nevertheless, in making-local assessments, “proceed under their official Paths to faithfully perform their' duties. It is not seen that the adding to the affidavit the name of the third assessor, who was absent when it was made, has any significance upon the question of the validity of the assessment. The subscription of the roll by two of them in the absence of the other was sufficient. The reasons if any therq were, for signing his name by another assessor, do not require any consideration in the present case. These views lead to the conclusion that the plaintiff is not entitled to .relief. The complaint is therefore dismissed.


author: Barrett, J.

text:
    Charles G. Pease, as Executor, etc., Pl’tff, v. Gladys M. Gillette, as Temporary Administratrix, etc., et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed December, 1894.)

    Powers—Execution.
    The execution, by a trustee, of a deed to the board as bridge trustees, at • whose instance the trust property had been condemned for public use, was not to be an execution of the power of sale as to such realty.
    Action for an accounting.

      Richard L. Sweezy, for pl’tff; Amasa A. Redfield, for def’ts Luke A Lockwood, for guardian ad litem.

   Barrett, J.

The important question here is whether there was a sale of the real estate under the provisions of John Egan’s will, for the purpose of distribution. As was said in Pease v. Egan, 181 N. Y. 267; 43 St. Rep. 105, where this will was before the court of appeals:

“ The title of the real estate remained in the trustee until it should be sold, and if a child died without issue before the death of the mother, and before any sale, the share which would otherwise have gone to such child or its issue upon the mother’s death, and the subsequent sale and distribution of the proceeds of the real estate, went to the surviving brother or sister.”

John Egan died leaving a widow and two children. These children were Mrs. Pease, who died in 1883, the presentplaintiff’s testatrix, and William G. Egan, who died in 1890. The widow survived both children. She died in 1892. Upon the facts as-they appeared in Pease v. Egan, supra, Peckham, J., said that Mrs. Pease died,—

. “In the lifetime of the mother, without issue, and before, any sale or distribution of the proceeds of the real estate. The share of the sister (Mrs. Pease) in such realty or its proceeds, upon her death without issue, passed to her brother (William G. Egan) by virtue of the will of the testator.”

That case, however, is not conclusive here upon these facts, as the observations upon that head were merely incidental to the question of subrogation, which was there actually decided. It is authority, however, for the construction given to the will. That construction is that the devise of the real estate to the children was, during the life of the widow, not absolute, but contingent; that is, contigent upon a sale which the trustee was authorized to-make after the children arrived at the age of 21 years, provided the widow consented, and she and the children should make some satisfactory arrangement securing to her the punctual payment of an annuity during her life. Until such a sale the interest of the children was spoken of as contingent. “The estate,” said Peck-ham, J., “had absolutely vested in neither.” As Mrs. Pease died without issue, it follows that, unless there was such a sale as the will contemplated prior to her death, her share went to William G. Egan, and is now vested in the latter’s infant child.

The question under consideration relates to two parcels of real estate, one in William street, and the other in 131st street. The former was condemed for the purposes of the Brooklyn bridge. The order of condemnation was made on the 11th, and was filed on the 14th, of June, 1880. Upon the twelfth of the same month, the widow and the two children, who were then of age, executed a deed of the condemned property to the bridge trustees. The consideration expressed in this deed was the same as that awarded by the court in the order referred to, namely, $24,500. This deed was evidently the practical completion of the condemnation proceedings. It was not the result of an independent sale of the premises. It simply confirmed the title already acquired, subject only to the payment of the $24,500. ' Ho arrangement for an annuity was made with the widow, nor was there anything in the transaction to justify the inference that she waived her right thereto. On the contrary, the facts point clearly to the conclusion that it was the intention of all parties to treat the proceeds as an enforced substitution for the real estate. Mrs. Pease (then Miss Egan) was a party to the condemnation proceedings. She was personally served with the petition and notice of presentation. She duly appeared by attorney, and was examined as a witness before the commissioners. She testified that she had acted as her mother’s agent with regard to the premises in question, and had collected all the rents. She ascribed the falling off of the rents to the bridge. More than any one else, therefore, she seems to have been ac•quainted with the proceedings and their effect. In the final order of condemnation, she secured, through her attorney, the following provision:

“And on motion of F. F. Vandeveer, attorney for said Clara M. Egan, individually and as trustee, as aforesaid, and Clara E. Egan and William Gr. Egan. It is ordered that said award of twenty-four thousand five hundred dollars, less the amount of said water rate of eighteen dollars, be paid to said Clara M. Egan, as trustee under the last will and testament of John Egan, deceased, to be administered and held upon the same trusts, and the income to be applied to the same uses and purposes, as, in and by the said last will and testament of John Egan, deceased, the real estate herein-before descrifled, and the income thereof, were directed to be held and applied.

It is contended that the court had no power to make this provision. But whether it had or not is quite immaterial. The crucial consideration is that all parties applied to the court for the provision, and thus plainly indicated their intention, understanding, and agreement. In July of the following year,—a part of the trust funds, consisting, undoubtedly, of the proceeds of the bridge transaction, having been invested by the trustee (who was the widow) in other real estate,—Mrs. Pease (she having married in the meantime) wrote to her attorney the following letter:

“July 15, 1881.
“Mr. Vandeyeer : Will you please see that mama executes the proper papers showing that the houses numbers 234 and 236 East 85th street are held in trust by her for Will and mysblf, as they were bought with the money of the estate.
“Respectfully, Mrs. Clara E. Pease.

In accordance with this request, Mrs. Egan, in the following September, executed a declaration of trust to the effect that she held the property only-—

“As the executrix and trustee under the last will and testament of John Egan. * * * for the use and benefit of the legatees and devises of the estate of the said John Egan, deceased, named in said will, and that she had no beneficial interest in the premises, except such interest as was bequeathed and devised to her, as widow, under and by virtue of the provisions of said will.’’

There is a dispute as to whether Mrs. Pease was aware of the precise terms of the declaration of trust, but I think it reasonably •clear, upon the evidence, and the instrument was shown to both Mrs. Pease and her husband, that it was discussed by them, that its contents were satisfactory to them, and thait Mrs. Pease herself was present at its exection. It further appears from the trustee’s account that the income of this real estate was divided, up to the time of Mrs. Pease’s dgath, as directed by the will. Thus Mrs. Pease received her share of such income, quite the same as she would have received her share of the income derivable from the William street property, had that property not been condemned, and the proceeds reinvested. It is impossible to hold, under these •circumstances, that the bridge transaction involved a sale of the William street property under the discretionary power given to the trustee, subject to the widow’s consent, and to an arrangement between the parties of an annuity. In my judgment, there was in law no conversion of this real estate into personalty for distribution un■der the provisions of the will, but, on the contrary, there was a distinct understanding and arrangement between all parties that the actual conversion should not have that effect. The same views apply to the property on 131st street. This transaction was but a sale inform. It was in reality a mere exchange of properties. The contract therefor expresses this in terms. To effectuate this exchange it was, of course, necessary that there should be formal deeds from each party to the other of the respective properties. But the substantial transaction was the substitution of one piece of real estate for another. The trustee received nothing for the property which she conveyed, save that conveyed to her. In fact, she gave her grantee $16,000 of the trust moneys,—undoubtedly, a part of the $24,500 received upon the bridge transaction,—in addition to the property which she conveyed. The children united in the deed of the 131st street property; and later the declaration of trust, to which reference has been made, was requested, evidently for the purpose of avoiding any possible question as to the intention of the parties, or as to the effect of the transaction. When Mrs. Pease requested Mr. Yandeveer to have mother execute proper papers showing that the houses were held in trust for Will and herself, she did not mean an implied trust, resulting merely from the investment of the funds of decedent’s estate in land. She clearly referred to the trust provisions of the will. This is evidenced by all the surrounding circumstances, as well as by her approval of the terms of the declaration of trust which was subsequently executed by her mother. Thus the substituted property was treated by all parties as real estate. In legal intendment, it became a part of that embraced within the devise. It was, in substance and effect, the 131st street property enhanced in value by the trust money which was put into the exchange,—trust money which was itself real estate, within the clear understanding of the parties.

It does not follow, however, from these conclusions that the complaint should be dismissed. I ag.tee with the plaintiff that he is intitled to an accounting with regard to the personal estate, and to the rents of the real estate accruing prior to Mrs. Pease’s death. The right to maintain an action for such an accounting was sustained upon the trial, and I adhere to the conclusions then arrived at. I also concur in the plaintiff’s views with regard to the statute of limitations, and to the effect of the death of Mrs. Egan upon the proceeding for a voluntary accounting in the surrogate’s court. The latter proceeding terminated with her death. The statute of limitations, did not run so long as the property remained in the possession of the trustee, unaccounted for. Matter of Camp, 126 N. ,Y. 389; 37 St. Rep. 767. I refer to such an accounting as-that to which the plaintiff is now limited. It is unnecessary to-consider the same question with regard to the main points of disputo, they having been decided adversely to the plaintiff upon the merits. There should therefore be an interlocutory judgment stating the rights of the parties in accordadce with the views above expressed, and directing a reference to take the account as herein limited, which should include the substituted trustee. Ordered accordingly.


text:
    The People ex rel., Justus Knatt, Pl’ff, v. Burton H. Davy, as Sheriff, etc., Def’t.

      (Supreme Court, Monroe Special Term,

      Filed January, 1895.)

    Cruelty to animals—Jurisdiction.
    Administering poison is cruelty to animals, of which offense the court of special sessions has exclusive jurisdiction in the first instance.
    Application for writ of habeas corpus to inquire into the cause of relator’s detention.

      H. J. & W. Sullivan, for relator; George A. Benton, Dist. Atty., for resp’t.
   Bradley, J.

—The relator has been arrested and imprisoned by the defendant, by virtue of bench warrants issued upon two indictments found in the court of oyer and terminer of Monroe county. One of them charges the relator with maliciously exposing, placing, and scattering poison in the place where the cattle of Mary J. Burnett were kept, with the intent that the animals should take the poison, and thereby be killed. And the other charges that, from the effects of poisonous drug maliciously administered by the relator to it, an animal of Mary J. Burnett died. No value of the property was alleged. The relator seeks to be discharged from custody upon the ground that the presentments made by the grand jury in the court of oyer and terminer were not within the jurisdiction of that court. And this contention is founded upon the statute which provides that courts of special sessions have, in the first instance, exclusive jurisdiction to hear and determine charges for misdemeanor within their respective counties, of certain specified misdemeanors, among which is “ cruelty to animals” (Code Or. Proc. § 56), and that in such cases prosecution by indictment is only permitted when certificate has been -made as provided in Id. § 37.

The main question here is whether or not the offenses charged come within the meaning or definition of the term “ cruelty to animals,” as used in the statute referred to. If it does, there was no jurisdiction in the court of oyer and terminer, in the fist instance, to charge the relator, by indictment, for the purpose of his prosecution for the alleged crime. The statute declaring the offense charged provides that:

“A person who unjustifiably administers any poisonous or noxious drug or substance to an animal, or unjustifiably exposes any such drug or substance with the intent that the same shall be taken by an animal, whether such animal be the property of himself or another, is guilty of a misdemeanor.” Pen. Code, § 660.

Formerly, the offense was, by statute, a felony (2 Rev. St. 689, § 16); and before then it (having been made á criminal offense by an early statute in England) was, so far as related to the property of a person other than that of the offender, treated here*as a crime at common law, People v. Smith, 6 Cow. 258; Com. v. Leach, 1 Mass. 59; Loomis v. Edgerton, 19 Wend. 419; Kilpatrick v. People, 5 Denio, 280. An offense of the character of that charged against the relator is serious in character, and, as was said by the court in one of the cases above cited, “such an act discloses a degree of moral turpitude dangerous to society.” By the Revised Statutes the offense of cruelty to animals was a misdemeanor, and was distinct from that of the character of the one in question. 2 Rev. St. 695, § 26. If, however, the provision of the Penal Code has put it within the meaning of that term as used in section 56 of the Code of Criminal Procedure, there is no legal objection to so treating it, upon the question of jurisdiction. The caption of title 16 of the Penal Code, which embraces section 660, is “Cruelty to Animals. And later in the same title is the defining provision that “the word torture or cruelty includes any act, omission or' neglect whereby unjustifiable physical pain,"suffering or death is caused or permitted.” Section 669. The charges in the indictments seem to be more aggravated in character than any contained in the provision of title 16, other than that of section 660, by which the offense so charged is provided for; and I should, if permitted by anything appearing in the statute, be inclined to distinguish it from other provisions coming within the meaning of the term “cruelty to animals.” But, like those in the other sections of the same title, it is made a misdemeanor, and I am unable to see how it can be taken out of the class of cases to which that term is by the statute applied. It is suggested that it could not have been intended to give the special sessions exclusive jurisdiction in the first instance of the offense mentioned in 660, because, as no punishment is there prescribed, it comes within the provision of section 15, which provided that in such case the punishment is imprisonment for not more than one year, or fine not more than $500, or both, and that a court of special sessions cannot inflict a punishment greater than imprisonment for six months and a fine of $50. Code Or. Proc. § 717. While this is. all so, the same may with equal force be said of every crime within the provision of the other sections of title 16 of the Penal Code. And if that reason prevails the special sessions would not, in the first instance, have exclusive jurisdiction of any ■charge for cruelty to animals, as there are none to which my attention has been called, other than those embraced within the provisions of that title.

It is difficult to account for the apparent want of harmony of the two Codes, and it is unnecessary to attempt to do so. The same reason, founded upon the extent of punishment, is applicable to the crime of assault in the third degree (Pen. Code, § 222), and to that of petit larcency, as first offense (Id. §§ 15, 535), as it is to the present case. They are within the provisions of section 56 of the Code of Criminal Procedure, and the maximum punishment prescribed exceeds that within the power of the special sessions to impose, yet the pi’oposition that such court has not been vested with exclusive cognizance of su6h cases in the first instance cannot, on that ground, be supported. It has been distinctly given by the statute, and there seems to be no opportunity, by construction, to hold otherwise. People ex rel. Comaford v. Dutcher, 83 N. Y. 240. The certificate provided for is the only means by' which, in the cases within the provisions of section 56 of the Code of Criminal Procedure, prosecution can be had by indictment. The distinction in grade formerly existing between an offense like that in question and what was then known as “cruelty to animals” had disappeared, and by the Penal Code the grade of the former has been reduced to that of misdemeanor, and both have been placed in the same class of designated offenses. Whether this has been wisely done may be questioned. But with the policy of the statute, within legislative power, the court has no concern. If these views are correct, the conclusion follows that the indictments have hot the support of jurisdiction of the court in which they were found, and the custody of the relator by virtue of the indictments is unauthorized. People ex rel. Frey v. Warden of County Jail, 100 N. Y. 20. The prayer of the relator’s petition is granted, and he is entitled to his discharge from the imprisonment founded upon the indictments.