author: Ingalls, J. :

text:
    ALMIRA HANCOCK, Appellant, v. GEORGE W. RAND, JOHN H. RAND and THOMAS B. RAND, Respondents.

      Innkeeper and guest — when that relation exists.

    In November, 1873, W. S. Hancock applied to the defendants, who were keeping a public inn and hotel in the city of New York, for rooms for himself and family. An arrangement was made by which certain rooms connected with the hotel were assigned to the said Hancock and his family from that time until the following summer, provided he was not sooner ordered away on military duty; he agreeing to pay $365 per month if meals were furnished from the restaurant, or to pay $265 per month for rooms, and in that case to pay extra for what he ordered from the restaurant. Hancock and family entered into occupation of the rooms under the said arrangement. During the first month the meals were regularly furnished from the restaurant and $365 was paid; thereafter $265 was paid for the rooms, and the meals ordered at the restaurant were paid for in addition to that sum. In March, 1874, certain articles of personal property were stolen from the rooms.

      Held, that the relation of innkeeper and guest existed between Hancock and his family and the defendants, and that the latter were liable for the articles so stolen. _
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.
    This action was brought to recover from tbe defendants, who were tbe proprietors of tbe St. Cloud hotel, in tbe city of New York, tbe value of certain articles of jewelry stolen from tbe plaintiff while she was, as she alleged, a guest at that hotel. Tbe referee found in favor of tbe defendants, on tbe ground that tbe relation of inkeeper and guest did not exist between tbe parties.
    Tbis is an appeal by tbe plaintiff from a judgment entered against her in tbe above action upon tbe report of tbe referee.

      M. T. McMahon, for tbe appellant.
    Tbe referee erred in bolding as a question of law that a special contract, merely fixing tbe time of tbe sojourn of an inmate of a hotel or inn, and tbe price to be charged him, changes tbe character of such inmate from guest to boarder. (Pinkerton v. Woodward, 33 Cal., 557; Berk

      shire Woolen Go. v. Proctor, 7. Cush., 417; Norcross v. Norcross, 53 Me., 169, Walling v. Potter, 35 Conn., 183; Lima v. Pvrinell, 7 Albany Law Jour., 44; 5 Tenn., 273; 5 Barb., 568; Allen v. Smith, 12 C. B. [N. S.], 618; Eisien v. Hildebrand, 9 B. Monroe, 72; Bao. Abr., Inns and Innkeepers, c. 5; Story on Bail., sec. 177.) A contract between a landlord and guest regulating the price of lodgings and meals cannot be held to limit the legal liability of either. (Richmond v. Smith, 8 Barn. & Cress.; Wells y. Steam Navigation Go., 2 N. Y., 204; Gouldr. Hill, 2 Hill, 623; Gaines y. Union Trans. Go., 28 Ohio State R., 418; Adams Express Go. y. Node, 2 Duval, 563; Express Go. v. Moon, 39 Miss., 832; Levering v. Union Trans. Go., 42 Mo., 94; Adams Express Go. y. Haynes, 42 111., 93; Grennill v. Oook, 3 Hill, 488, Bkonson, J.; Ingalsbee v. Wood, 36 Barb., 452; aff’d. 33 N. Y., 577; Garter v. Ilobbs, 12 Mich., 52; Story on Bailments, 423, sec. 476 [8th ed.]; 4 Humph., 179; Burgess v. Clements, 4 Maulé & Selwyn, 206; Fell v. Knight, 8 M. & W., 269; Farnsworth v. Packard, 1 Stark. R., 249; Edw. on Bailments, 394 [1st ed.], and cases cited; Ambler v. Skinner, 7 Robt., 561.)

      S. W. Fullerton, for the respondents.
    The plaintiff intestate was occupying the rooms under a stipulated contract as to time, price, etc., at the time of the loss. This made her a boarder and not a guest. (Thompson v. Lacy, 3 Barn. & Aid., 283; Parkhurst v. Foster, 1 Salk., 387; Story on Bailments, sec. 477; Bausey y. Rich, 2 Ellis &BL, 144; Kingr. Ives, 7 C. & P., 213; Winter-mute v. Clark, 5 Sandf., 247; OromwellY. Stevens, 3 Abb. [N. S.], 34; Stewart v. McOready, 24 How., 62; Bennett v. Fitson, 5 Term, 273 ; Manning v. Wells, 9 Tkomp., 746; Ingallsbee v. Wood, 33 N. Y., 577; Mowers v. Fethers, 61 .id., 34; Seward v. Seymour, Anthon’s Law Student, 51; Willard v. Reinhard, 2 E. D. Smith, 148.)

       The oases of Winfield S. Hancock, appellant, against the same defendants (respondents), and Winfield S. Hancock, administrator, etc., of AdaJS. Hancock, against the same defendants (respondents), were argued with the above case, and in each case the judgment was reversed and a new trial was ordered before a referee, to be selected and appointed by the court, unless the parties should elect to retry the cause before the same referee.

   Ingalls, J. :

The following are the findings of fact and conclusions of law of the referee:

First. That during all the times hereinafter mentioned the defendants were copartners, carrying on business as the proprietors and keepers of the hotel known as the St. Cloud hotel, in the city of New York.

Second. That in the month of November, 1873, Winfield S. Hancock applied to the defendants for rooms at said hotel for his family, consisting of himself; his wife, Almira Hancock, the plaintiff ; his daughter, Ada E. Hancock, since deceased, and also his niece. That thereupon an arrangement was made between the said Winfield S. Hancock and the defendants, whereby the latter agreed to and did let to the former, for the use of himself and his said family from that time until the following summer, unless the said Hancock should be sooner ordered away on military duty, certain rooms, consisting of the whole of the second floor in a house adjoining the said hotel building, but used by the defendants in connection therewith; that the price agreed upon for said rooms was $385 per month of thirty days, with meals to be furnished by the defendants to said Hancock and family from the restaurant of said hotel, or $265 per month without meals, and the said Hancock to pay for what he and his family ordered as meals from said restaurant in addition, leaving, it for the said Hancock to determine under which branch of said agreement he would occupy said rooms. That pursuant to this agreement said Hancock and family entered upon the occupation of said rooms on the 11th day of November, 1873, and continued so to occupy them until about June 12, 1874.

That for the first month of said period the said Hancock elected to and did occupy said rooms and have meals furnished from said restaurant, and paid therefor the sum of $385, pursuant to the terms of said contract.

That at the expiration of said month the said Hancock elected to and did occupy said rooms with his said family, from that time until about June 12, 1874, under the other branch of said agreement, which required him to pay therefor the sum of $265 per month, and that he did pay that price therefor during said period, and paid for what he and his family ordered as meals from said restaurant in addition thereto, pursuant to the aforesaid contract.

That the prices which the said Hancock thus agreed to and did pay for said rooms, were less than the usual prices charged by the defendant to transient guests for like accommodations.

Third. That the notices required by law were not posted in the said rooms so occupied by the plaintiff and her family during such occupancy, and the plaintiff had no actual notice that a safe was provided by the defendants for the safe keeping of money, jewels or ornaments.

Fourth. That in the month of March, 1874, the plaintiff lost from her said room certain personal property of the value of $2,952.

Fifth. That the defendants were not guilty of any actual negligence in respect to such loss.

As matters of law:

1. That the plaintiff was not a guest of the defendants at said hotel within the meaning of the term.

2. That therefore the defendants are not liable to plaintiff for the loss mentioned in the complaint.

3. That the defendants are entitled to judgment herein, dismissing the plaintiff's complaint with costs of suit.

We are satisfied that the referee erred in the following conclusion of law : “ That the plaintiff was not a guest of the defendants at said hotel within the meaning of the term.” This presents the controlling question upon this appeal. The pleadings and evidence establish the fact that the defendants were, at the time the plaintiff entered the house, innkeepers ; they kept the St. Cloud hotel in the city of New York, which was not a mere boarding-house, but was conducted for the reception and entertainment of all who chose to visit it. The defendants were therefore insurers, and liable for the property stolen, if the plaintiff was a guest. (Ingallsbee v. Wood, 33 N. Y., 577; S. C., 36 Barb., 452.) In November, 1873, General Winfield S. Hancock applied to the defendant, and secured for himself and family, including the plaintiff" who is his wife, the occupation of rooms within the hotel, together with meals to be furnished by the defendants within such hotel, either at the restaurant which was kept as a part of the hotel, or served in the rooms, for which he was to pay as follows: If the meals were furnished from the restaurant, the sum of $385 per month, of thirty days; otherwise $265 per month, and the price of the meals ordered in addition, such arrangement to continue until the summer following unless General Hancock should be sooner ordered away npon military duty. While thus occupying the rooms, the property in question of the plaintiff was stolen therefrom.

We are of the opinion that the facts of this case establish clearly the relation of innkeeper and guest. The plaintiff had no permanent or fixed residence, elsewhere, and even her stay at the hotel in question depended for its duration upon the pleasure of the government, as her husband was liable to be ordered to military service at any moment. The St. Cloud hotel was kept, as the name indicated, as a hotel in every sense of the term, and was clearly distinguishable from a mere boarding-house. All the rights and privileges which General Hancock secured by the arrangement with the defendants were to be, and actually were, enjoyed within such hotel. We cannot adopt the theory that ascertaining and fixing the price which was to be paid for the accommodations, and specifying the probable duration of the stay at the hotel, necessarily had the effect to deprive the plaintiff of the character of guest. The effect of such a theory, reduced to practice, would be to deprive the visitor at a hotel of the character of guest, if he took the precaution to ascertain in advance the price which would be charged for his entertainment, whether he contemplated a stay of a day or a week. The mere fact that the price charged at hotels is made to depend upon the length of the stay of the visitor, cannot be controlling upon the question whether he should be regarded a guest. It is well understood that hotels are now conducted upon a system essentially different from that which prevailed a century ago, and hence the rules of law which must govern should, in some degree, conform to such change. It is comparatively of recent origin that a class of hotels have adopted two. modes by which to accommodate visitors ; one is to provide a room and furnish meals, at a general table, at a fixed price , the other is to provide a room at a specified sum, and furnish meals when ordered, the price of which to depend upon quantity and quality.

Although the decisions have not been uniform upon the question whether fixing in advance the price to be paid, and the duration of the stay of the visitor at a hotel, has the effect in law to constitute such person a mere boarder or lodger, and to deprive such visitor of the character of guest, yet our examination of the subject has led to the conclusion that regarding hotels as they'are now conducted and patronized, such an arrangement does not necessarily have the effect to prevent the relation of innkeeper and guest, and the obligations which attach thereto. In Parker v. Flint (12 Mod. Rep., 255), Lord Holt remarks: “ If one comes to an inn and makes a previous contract for a stated time, and does not eat or drink there, he is no guest but a lodger, and as such is not under the innkeeper’s protection. But if he eats or drinks there it is otherwise ; or if he pays for his diet there and does not take it there.” In Pinkerton v. Woodward (33 Cal. Rep., 557), the court say : “A traveler who enters an inn as a guest does not cease to be a guest by proposing to remain a given number of days, or by ascertaining the price that will be charged for his entertainment; or by paying in advance for a part or the whole of his entertainment; or payiug for what he has occasion, as his wants are supplied.” Berkshire Woolen Co. v. Proctor (7 Cush., 417) contains the following : “ The simple fact that Russell made an agreement as to the price to be paid by him by the week would not, upon any principle of law or reason, take away his character as a traveler and a guest. A guest for a single night' might make a special contract as to the price to be paid for his lodging, and whether it were more or less than the usual price, it would not affect his character as a guest.” (See, also, Norcross v. Norcross, 53 Me., 169; McDaniels v. Robinson, 26 Vt., 316; Walling v. Potter, 35 Conn., 183; Lima v. Dwinelle, Alb. L. J., 44 [vol. 7].) The arrangement under which General Hancock and his family entered the hotel, and their occupation were in all respects consistent with the purpose for •which the hotel was established, and their character of guests.

Our attention has been directed to a class of cases, of which Mowers v. Fethers (61 N. Y., 34); Ingallsbee v. Wood (33 N. Y., 577), are examples. These are clearly distinguishable upon principle from the case we are considering. In the first case it was held by a divided court, that the defendant did not become an insurer of the property kept for a particular business purpose. In the other, the court decided that Ingallsbee did not become a guest by simply leaving his horse and wagon to be cared for at the hotel kept by Wood; while he lodged and took his meals elsewhere. The distinction between an inn and boarding-house, and the rights and responsibilities which attach to each are in the main pretty clearly marked. One essential distinction is, that the keeper of a boarding-house is not compelled to accept an applicant for entertainment; while the innkeeper under ordinary circumstances cannot refuse, and he becomes an insurer of the baggage of the guest; and as a compensation for such obligation the common law creates a lien upon such baggage in favor of the innkeeper for the keep of the guest. While each possesses features which distinguish it from the other, some elements, enter in which are common to both, and in examining the cases, upon this subject, we are impressed with the conviction that expressions have been employed in some of the opinions not strictly accurate, or even necessary'to the decision of the particular case, but which create embarrassment when sought to be applied in deciding other cases. The innkeeper not only has a lien upon the baggage of his guest, but by common consent is allowed to charge for the accommodation which he provides greatly in excess of that which is exacted for similar entertainment elsewhere, and one important reason therefor is that the visitor chooses to pay for the indemnity which he secures in case his baggage is stolen from the hotel. A careful examination of this case has convinced us that, upon the facts found by the referee, the plaintiff should! have been regarded the guest of the defendants at their hotel, and as such entitled to recover the value of her property, which was, stolen from the room occupied by her in such hotel. No notice was posted informing the plaintiff that a safe had been provided in which to deposit money and jewels. We cannot subscribe to the doctrine, which refuses to recognize as a guest a visitor at a hotel who occupies rooms and is furnished meals therein by the proprietor; simply because the agreement which the law implies between innkeeper and guest is amplifier! by an express stipulation which fixes the price ; and specifies the duration of the stay of the guest. The law which renders the keeper of a hotel liable for the baggage of his guest which is stolen from the room assigned him, and which remains under the care and supervision of the landlord and the servants whom he selects, is salutary, and should not be rendered substantially inoperative by .adopting technical distinctions, which rest upon ingenious speculation rather than sound reason.

The judgment should be reversed and a new trial ordered before a referee to be selected and appointed by the court, unless the parties elect to re-try the cause before the same referee, costs to abide the event of the action.

Davis, P. J. and Brady, J., concurred.

Judgment reversed, new trial ordered before a referee to be appointed by the court, unless the parties elect to re-try the cause before the same referee, costs to abide event.


source: Caselaw Access Project

author: Ingalls, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE W. DILKS, Respondent, v. WILLIAM F. SMITH and others, as Police Commissioners of the City of New York, Appellants. THE SAME ex rel. EDWARD WALSH, Respondent, v. THE SAME, Appellants. THE SAME ex rel. JAMES CARROLL, Respondent, v. THE SAME, Appellants.

      iSection 63 of chapter 403 of 1864, as emended by chapter 861 of 1866 —repealed by section 47 of chapter 137 of 1870 and by section 43 of chaptei' 335 of 1873. ,
    The provision of the sixty-third section of chapter 403 of 1864, as amended by chapter 861 of 1866, providing that the salaries of the police force, therein prescribed, should, when the currency of the United States attained par value in gold, be reduced twenty per cent, was repealed by section 43 of chapter 335 of 1873, construed in connection with section 47 of chapter 137 of 1870.
    Appeal by the police commissioners of the city of New York from an order of the Special Term, directing that a peremptory mandamus issue requiring them to pay an unpaid balance of salary -due to the relator.

      James Fmott, Theodore W. Divight and Charles F. McLean, for the appellants.

      A. J. Vanderpoel and Flihu Moot, for the respondents.
   Ingalls, J.:

We are convinced that the decision of the Special Term is correct, and should be affirmed. The Laws of 1866, chapter 861, section 1, provides :

Section 1. “ The sixty-third section of chapter 403 of the Laws of 1864 is hereby amended so as to read as follows: ” Then follow provisions regulating the pay of the force as follows :

Superintendent, • - - - - $7,500
Inspectors, ..... 3,500
Captains, ...... 2,000
Sergeants, ..... 1,600
Patrolmen, ...... 1,200
Doorman, ...... 900 with the following proviso :
“Providing that ’whenever the currency of the United States shall attain par value in gold the foregoing salaries as paid by the act shall be reduced twenty per cent, except that in no case shall the yearly pay of captains be less than $1,800, and that of sergeants less than $1,400.”

If this statute were to control, the pay of the relator would be subjected to a reduction of twenty per cent, as the currency of the United States attained par value in gold on the 1st day of January, 1879. The statute of 1870, chapter 137, section 47 provides: “Every person connected with the metropolitan police department at the time this act shall take effect and designated to do duty in the city of New York, and except as otherwise herein ordered, shall continue in office and be transferred by operation of this act to the department herein created, and the amount of salary or compensation now paid to such person in the metropolitan police district shall he the salary and compensation fixed for his transferred office under this act."

Then follows the statute of 1873, chapter 335, section 43, which. isas follows: “Every person connected with the police department of the city of New York, at the time this act shall take effect, and except as otherwise herein ordered, shall continue in office, and the amount of salary or compensation now legally paid to such person, except as herein othewise provided or authorized, shall be the salary and compensation fixed for his office under this act.”

The statute last referred to does not, in this particular, conflict with the statute of 1870, to which we have also referred. The statutes of 1870 and 1873 construed together must have the effect to entitle the relator to the salary specified, free from the deduction of twenty per cent — in other words, the proviso in regard to such deduction has been repealed by such statutes. The following-expression contained in section 47, of chapter 137, Laws of 1870, “ the amount of salary or compensation now paid,” if construed literally, admits of but one conclusion, which is that the provision of the statute of 1866 (ch. 861), relative to the reduction of twenty per cent, was repealed by the statute of 1870. And we fail to discover anything in the statute of 1873 which can have the effect to change such result. At the time the two last mentioned statutes were enacted the salary was not affected by the reduction clause of twenty per cent contained in the statute of 1866, and hence the salary then paid was the definite sum specified. We perceive no substantial reason why the statute of 1870, in this particular, should not receive a construction according to the plain and ordinary import of the words employed in framing such statute. In construing a statute we are to assume that the legislature intended that which the language used fairly imports, unless such interpretation would lead to a result so clearly unjust and unreasonable, if enforced according to the letter, that the general purpose for which the statute was enacted will be defeated. We do not feel justified by anything disclosed in this case to depart from the plain and ordinary rule of construction which obtains, when the words emplojmd have a clear and definite meaning. The province of the court is to construe and enforce statutes, but not to legislate. The provision in regard to reducing the salaries was extraordinary, and we may reasonably conclude that if the law makers had intended to continue it, a declaration to that effect would have been incorporated in either the statute of 1870 or 1873.

The order of the Special Term should be affirmed, with costs and disbursements.

Potter, and Brady, JJ., concurred.

Order affirmed, with costs and disbursements.


author: Davis, P. J.:

text:
    In the Matter of BRENTON H. COLLINS for Leave to Sue, etc.

      Application for leave to sue for deficiency, after judgment of foreclosure — when denied.

    After an action of foreclosure had been prosecuted to judgment, and a sale had upon which a deficiency had arisen, an application was made for leave to sue the representatives and next of kin of a deceased guarantor, they not having been made parties to the foreclosure action, and no claim having ever been presented against the estate.

      Held, that such application was addressed to the sound legal discretion of the court, and that it would not be granted when the circumstances of the case rendered it inequitable so to do.
    Appeal from an order of the Special Term, granting leave to the petitioner to bring an action against the appellant to recover a deficiency on a sale had under a mortgage foreclosure.
    • F. F. Dana, for the appellants, George S. Bedell and Emma A. Benson individually and as executrix of Lydia Bedell.

      A. Matthews, for the respondent (the petitioner), Collins.
   Davis, P. J.:

On the 1st of December, 1865, one Edward C. Bowers executed a mortgage to one Harriet Ann Miller of certain lands in Kings county for $3,500, as collateral to his bond of the same date. On the sixteenth of the same month the said Miller assigned the bond and mortgage to one Daniel Bedell, who, on the 1st of May, 1867, assigned the same to one Enos Collins by an instrument of assignment which contained a guaranty in the following words: “I hereby guarantee the payment of the principal and interest of said bond and mortgage in full to the said party of the second part.”

Enos Collins, the assignee, afterwards died leaving a last will and testament, which was admitted to probate, naming therein executors who duly qualified, and such executors on the 19th of November, 1872, assigned the said bond and mortgage to Brenton H. Collins, the petitioner.

Bowers, the mortgagor, after the assignment of the mortgage,, reconveyed the mortgaged premises to Harriet Ann Miller, who assumed the payment of the mortgage. The principal secured by the mortgage became due on the 1st day of December, 1869, and at that time the mortgaged premises were of sufficient value to have realized the amount due, and Harriet Ann Miller, the mortgagee, who had assumed the payment of the mortgage, and one Charles S. Brown, her grantee, who was then the owner of the mortgaged premises, were solvent and responsible.

Daniel Bedell, the guarantor above named, died in 1869, before the mortgage became due, intestate, and Lydia Bedell, his widow, was appointed sole administratrix. He left him surviving, Lydia Bedell his widow ; Jonas P. Bedell, George S. Bedell, and Charles W. Bedell, his sons, and Emma A. Bedell and Louisa R. Bedell, his daughters: His administratrix afterwards obtained from the surrogate the proper order and duly advertised for claims against his estate, but no claim on the guaranty above mentioned was presented to her. On or about July 1, 1870, she had a final accounting before the surrogate of Kings county, and distributed the assets remaining after the payment of debts to the next of kin. Subsequently Lydia Bedell died, leaving a last will and testament (of which one of the appellants is executrix), and Jonas P. Bedell died April 14, 1870. •

The mortgage was foreclosed by an action brought by the petitioner in the Supreme Court in Kings county in November, 1877. Judgment of foreclosure was had December 24, 1877, and the mortgaged premises were sold April 29, 1878, under the decree in that action for $1,000, leaving a deficiency of $4,137.04, for which judgment was entered against the defendants in the foreclosure suit; execution thereupon was issued and returned . wholly unsatisfied. No taxes were paid on the premises after the year 1869, and no interest on the moneys secured by the mortgage after the year 1873. Neither the administratrix of Daniel Bedell, the guarantor, nor any of his next of kin or heirs-at-law were made parties to the action to foreclose the mortgage in question, nor does it appear that they had any notice of the action. The petitioner asks leave to prosecute the representative •of the widow, Lydia Bedell, and the appellants who are surviving next of kin of the guarantor to recover the amount of such deficiency.

This application is made under the provisions of the Revised 'Statutes (2 R. S., 191, § 153), which declares in substance that after suit brought for foreclosure, and while the same is pending and after decree rendered thereon, no proceedings whatever sba.ll be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court.

Such an application is addressed to the sound legal discretion of the court. (Equitable Life Insurance Society v. Stevens, 63 N. Y., 341.) It was held in that case to be the power and duty •of the court to take into consideration the circumstances and equities of the case, and to exercise a sound discretion in granting or refusing the application; and that the remark of Chancellor Walworth in Suydam v. Bartle (9 Paige, 294-6): “ And where it is evident that the complainant could have had a perfect remedy .against all persons who were liable for the payment of the debt by .a decree over against them for the deficiency, if he had chosen to make them parties to his foreclosure suit, it might not be a proper •exercise of discretion 'for the Court of Chancery to permit any further proceedings to be had in the action at law after the filing •of the bill of foreclosure,” was equally applicable where the application for leave to sue is made after decree ; and in the course of the opinion, of the Court of Appeals in the case first above cited, the court says : “ It is not difficult to see that cases might arise in which leave to sue upon the bond should not be granted upon any terms. The mortgagee may have so acted as to induce the party liable for the deficiency to refrain from protecting the property at the sale, and the property, though amply sufficient to pay the mortgage debt, may have been bought in by the mortgagee for a trifling sum. Other circumstances might exist which would be sufficient to induce the court to withhold its leave to sue upon the bond.” These cases establish that the petition in this case is to be disposed of by the exercise of a sound discretion. We think there is no reason to doubt but that the appellants might properly have been made parties to the action for foreclosure with a view to charge them personally, in. proportion to the assets received by them, with any deficiency that might accrue. Their liability arose out of the. obligation of their intestate and ancestor, to wit : The covenant of guaranty executed by him on his assignment of the mortgage. To enforce the guaranty against his estate, through them, they might properly have been made parties under the act of May 4, 1863 (ch. 392), and 2 Revised Statutes, 191, section 154.

But, whether this was so or not, we think the facts in this case disclose equitable reasons for denying the application. The liability on the guaranty accrued on the 1st day of December, 1869,. it is shown, apparently without contradiction, that the mortgaged premises were then of sufficient value to realize the amount due ;. that the original mortgagee, Harriet Ann Miller, had, by a subsequent reconveyance, assumed the payment of the mortgage, and that her subsequent grantee had also assumed the same, and that both were at that time solvent and responsible, and have since become insolvent. It also appears that default in payment of the interest was made in the year 1873, and that the taxes on the premises were suffered to remain unpaid after the year 1869 ¿ that no claim was presented upon the guaranty against the estate of Daniel Bedell under the advertisement by his administratrix for such claims ; that neither his representative nor any of his next of kin were made parties to the foreclosure, nor did it appear that any notice of such foreclosure was given to them.

The premises were sold under the foreclosure decree for the sum of $1,000, not enough to extinguish the interest and taxes, leaving as a deficiency an amount 'larger than the original mortgage. It may be that upon all these facts no strictly legal defence to the action would arise, but it must be apparent that the extreme negligence of the petitioner and his assignor has operated to put the appellants in a position, where the enforcement of this large deficiency against them would be greatly inequitable and unjust. The petitioner seems to have so acted by his great delay as to deprive the appellants, who stand in the relation of sureties, of their remedies over against other parties who were personally bound for any deficiency; and also, not only to have prevented them from protecting the property at the sale, but to have subjected them to serious loss by reason of its depreciation, if they are now held responsible for the deficiency. These circumstances seem to us quite abundant to call for a denial of the petition.

It is urged that a right of action against the appellants exists upon the guaranty and upon their liability as distributees, independently of the statute. It is not necessary for us to consider that question further than to say that if the position be well taken, that alone is a sufficient answer to this application, because if the petitioner have such right there was no necessity of applying for :an order of the court, and the order should not be granted, inasmuch as it might be in such case a serious embarrassment to the .appellants.

We are of opinion that the order of the court below should be reversed, and the motion denied, ■ with ten dollars costs and disbursements.

Beady and Ingalls, JJ., concurred.

Order reversed and motion denied, with ten dollars costs and •disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. CASWELL, v. THE COMMISSIONER OF TAXES AND ASSESSMENTS FOR THE CITY AND COUNTY OF NEW YORK.

      Assessment — executor not liable to, imless property of the estate is in his possession.

    The will of the relator’s testator, a resident of the county of Westchester, was in 1877 duly proved before the surrogate thereof, and letters testamentary thereon were issued to his four sons, who resided in said county, and to his sons-in-law, ¥m. B. Tailor, and Wm. H. Caswell, the relator, who resided in New York.. It appeared that prior to January, 1878, the relator ceased to take any part in the settlement of the estate, except to give his opinion and advice when asked by his co-executor; and that at the time of the assessment hereinafter mentioned,, made by the respondents he had not in his possession or control any personal property belonging to the said estate.
    The respondents assessed the personal property of the testator at $500,000 to the-relator, and one Ross Campbell, as executors.

      Held, that, as the relator had no property of the estate in his possession or control, the assessment was erroneous and should be vacated.
    Certiorari to review an assessment against the relator, made-by the respondents for the purposes of taxation.

      W. J. Osborne, for the relator.
    The power here delegated by the statute to the commissioners is to be strictly construed, and, the language of the statute being plain, nothing is to be left to* the discretion of the commissioners. (Prosser v. Secor, 5 Barb.,. 607; People ex rel. Mygatt v. Supervisors of Chenango Co., 11 N. Y. B., 563; Whitney v. Thomas, 23 id., 281; approved in 48-id., 93; national Bank of Chemung v. City of Elmira, 53 id., 49.) The commissioners, in making the assessment in question, seem to have concluded that, because the relator had never -resigned or renounced his executorship, he had just as much the-possession and control of the assets of the estate as his co-executors. This position is untenable. (Burt v. Burt, 41 N. Y., 46; Douglas v. Satterlee, 11 John., 16; Mesiclc v, Mesiclc, 7 Barb., 120; Bedfield’s Law and Practice of Sur. Courts, 251; Banks v. Wilkes, 3 Sandf. Ch., 99.)

      J. A. Beall, for the respondents.
    The relator was properly assessed for the said personal estate in the county of New York. (B. S., pt. 1, ch. XIII, title 2, art. 1, § 5; id., vol. 1, p. 934.) The true rule in case of an estate of -which there are several executors residing in different counties would seem to be to assess pro rata in the several counties. This rule was adopted in Ohio, where the statutes are not unlike those of this State. (The State-ex rel. Darkness v. Matthews, 10 Ohio St., 431.)
   Davis, P. J.:

The facts of this case are as follows : William Watson, the testator, died in the town of Westchester, Westchester county, September 25, 1877, being at that time, and having been for several years prior thereto, a resident of that town.

His last will and testament was duly proved before the surrogate of Westchester county, and letters testamentary were issued to his four sons, who resided in Westchester, and his two sons-in-law, William B. Tañer and William H. Caswell. The relator resides in the city of New York. The respondents assessed the personal property of said testator at a valuation of $500,000 to the relator, and one Boss Campbell, as executors of the estate of William Watson.

The relator appeared before the respondents in due season, and applied to have the said assessment vacated. He was duly sworn, and showed by his deposition the facts above stated, and that the relator had in accordance with a determination formed by him prior to the 1st day of January, 1878, for some months past, ceased to take any part in the' settlement of the said estate, except to give his opinion and advice when asked for by his co-executors; and that at the time of the service of the notice of assessment on him, and for some months prior thereto, he had not, nor had he then in his possession nor under his control, as executor, any personal-property belonging to said estate.

Upon this state of facts the respondents ruled that the relator was liable to be taxed upon the amount of the assessment. The Bevised Statutes provide that every person shall be assessed in the town where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or under his control as trustee, guardian, executor or administrator, and in no case shall property so held under any of these trusts be assessed against any other person. (IB. S., 934.)

The question presented therefore, upon the undisputed facts of this case, is whether the personal property of the estate of the deceased' was, within the meaning of the statute, in the possession or under the control of the relator as one of his executors. The assessors held that it must Be assumed that the legal title and possession, and the consequent right to control were in the relator, notwithstanding the property was in the hands of his co-executors in another county and under their physical and personal control.

In this we think they erred. In Williams v. Holden (4 Wend., 223) assessment of the personal estate of the testator was made against one David E. Vane who was one of the four executors. A demurrer was interposed to the plea, which amongst other things alleged that there were other executors who, together with Mr. Vane, proved the will, and all of whom jointly performed the duties of executors in the town of Batavia where Vane resided and was assessed.

The court after considering other objections to the plea say : “But a fatal objection to this branch of the plea is that it does not allege that any portion of the property assessed to Mr. Vane was in the possession or under the control of his co-executors. A co-executor is chargeable only for the assets which come to his hands, and not for those in the hands of his companion. (Douglas v. Satterlee, 11 Johns., 16.)

The facts as undisputed in this case are that the whole of the personal estate was in the actual possession and control of the four executors residing in Westchester county, and that this relator not only had in fact no possession of any portion of it, but had refused to further participate in the execution of the trust.

Clearly within the rule laid down in the case cited, he had no such possession or control as subjected him to the assessment. His co-executors were alone responsible for the property. The most that could be said in respect of his power is, that he had the legal right, if he had chosen to resort to it, to enforce the proper execution of the trust.

The assessment we think was erroneous and should be vacated. The judgment should be ordered accordingly, with costs.

Brady, J., and Ingalls, J., concurred.

Assessment vacated and judgment ordered accordingly, with costs.


author: Ingalls, J. : Davis, P. J.: 'Brady, J.,

text:
    ROBERT A. MILLS v. HENRY RODEWALD. ROBERT A. MILLS, Respondent, v. DAVID M. HILDRETH, Appellant, Impleaded with HENRY STUBBEN.

      Bail, when indemnified, not allowed to surrender the principal — what a sufficient indemnity.

    In 1869 the defendant Hildreth became surety on an undertaking to secure the release from arrest of the defendant Rodewald. Thereafter, and in January. 1870, the latter procured a discharge under the non-imprisonment act, and thereafter went to Europe. In October, 1872, the plaintiff recovered judgment in the action in which Rodewald was arrested, and an execution having been returned unsatisfied, sued Hildreth, who defended on the ground that his principal had been discharged, which defence was sustained at the Circuit, but overruled at the General Term, because the discharge had not been recorded within the three months prescribed by statute. Rodewald having been notified, returned, and Hildreth applied for leave to surrender him, which was denied on the ground that plaintiff’s rights had become fixed, and that the bail were indemnified; leave was given however to renew the application on proof that the indemnity was inadequate.
    On a second application it appeared that the only indemnity received was the bond of defendant Rodewald’s wife; that the latter claimed to have been coerced into executing it through fears of her husband dying in prison, and to rescue him from the violence of the plaintiff, and that she denied any liability thereon; she also denied a certain allegation of the plaintiff as to the value of her property, which was situated in Kentucky.

      Held, that these facts did not show the indemnity given to the defendant Hildreth to be inadequate, and that the second application was properly denied. (Brady, J., dissenting.)
    Appeal from an order made at the Special Term, denying an application of the appellant to surrender the defendant Rodewald, and to be exonerated from liability as his bail.
    The first above entitled action was the action m which the undertaking was given. The second above entitled action was brought upon the undertaking, against the sureties thereon.
    The defendant Rodewald was arrested and held to bail in the sum of $10,000 in the action brought against him, which was commenced in 1869. The defendant Hildreth became one of his sureties, and executed an undertaking under section 187 of the Code. In January, 1870, Rodewald being insolvent, applied under article 5 of the non-imprisonment act, entitled “ of voluntary assignments by an insolvent for the purpose of exonerating his person from imprisonment,” and there being no opposition he made an assignment of his property as required by law, and obtained his discharge as provided by the statute (supra). The defendant Rodewald was then in ill health, and having been thus relieved from the obligation to remain here on account of his bail, and supposing the law complied with, went to Europe. His departure was known to the defendant Hildreth, and was openly taken, and therefore without secresy. The plaintiff, in October, 1872, recovered his judgment against Rodewald; issued execution against him, and then commenced an action against Hildreth, who defended on the ground that his principal had been exonerated from imprisonment. The defence was sustained and the complaint dismissed. The plaintiff was not satisfied with this result and appealed to the General Term of the Supreme Court, which held that the discharge was invalid by reason of the omission to record it within the three months, prescribed by the statute for that purpose. The defendant Hildreth speedily notified the defendant Rodewald of this judgment, and he returned at once to this country and placed himself at the mercy of his bail. The defendant Hildreth, on the return of the principal, made application for leave to surrender the latter in exoneration of the bail. The application was denied upon the ground that it was too late, the rights of the plaintiff’ having become fixed, and because the bail were indemnified. The defendant Hildreth appealed from this order, which was affirmed, but with leave to him to renew the application, on showing that the indemnity was ineffectual. (Mitts v. Hildreth, 7 Hun, 298.)
    The application was accordingly renewed and denied, and the defendant Hildreth appealed. On the second application the defendant Hildreth stated, among other things, that he had never received any indemnity for being bail, except the written undertaking of the wife of Rodewald to protect him against his liability as bail, on account of which obligation he had never received anything, and he believed the same to be of no value. And Mrs. Rodewald stated that in the action against her husband an attachment had been issued ; and further, as follows : That under said attachment all of his property was attached and was afterwards sold; and although she is informed and believes that upon a fair sale the same would have brought enough to pay the whole demand of said Mills, yet it was sold at a sum much below said amount.
    That her said husband was at the same time arrested and put in prison; and induced thereto by the fear of his dying, and the threats and intimidations of said Mills, to rescue him from the violence of said Mills, she did make a bond of some kind to David M. Hildreth, charging her- separate estate, but she says she was informed there would be no liability thereon ; and she denies that she ever thereby intended to engage to pay any sum of money, nor did she in any manner understand the nature thereof, and she denies her liability thereon ; and she denies that she-was ever in any way indemnified therefor by said Henry Rodewald or other person. That she has some lands in Kentucky which she received from her father’s and mother’s estate, but she denies the same are of the value of $60,000, or anything like said amount. That upon a part thereof there is some coal, but the quantity thereof is very uncertain, as she is informed and believes. That the greatest amount that said property has produced to her in any one year is. $1,000, and she has no other income or means of support for herself and her said husband, who has never been able to resume any business, or to contribute to his support.
    The truth of these statements as to the value of the indemnity was put in issue by the plaintiff, and the learned justice below held that the second motion did not present any essentially different features from those of the original motion, and that the affidavit read did not show “ that the wife is or was irresponsible in fact or in law.”

      G. O. Genet and A. J. Vandergpoel, for the appellant.
    The power of the court to relieve the bail cannot, at this day, be questioned. When the bail act in good faith, it is the policy of the law to-relieve them on producing the body of the principal. (Code, §. 191; New Code, § 601; Brownlow v. Forbes, 2 John. R., 101; Seaman y. Drake, 1 Caines R., 9; Mannin 'Y. Partridge, 14 East R., 599; Boggs v. Teakle, 5 Binney, 332.) The court had the power to relieve bail after they became fixed. {Kane v. Ingraham, 2 ■John. C., 403; McCausland v. Waller, 1 H. & J., 156; Richardson v. McIntyre, 4 Wash. C. C., 412; Trinder v. Shirley, Dougl., 45; Brady v. Brundage, 59 N." Y., 310; Olcott v. 4 John., 407; Thorne v. Brown, 9 Watts, 288; Beaten v. Wilkinson, 1 Hall’s Am. L. J., 260.) No case ever appealed more strongly to the favorable consideration of the court. (Brady v. Brundage, 59 N. Y., 310 ; affirming 2 Thomp. & C., 621; Baker v. Curtis, 10 Abb., 279; Gilbert v. Bullcley, 1 Duer., 668.) The absence ■of defendant, without the consent of the bail, has always been sufficient to warrant the court to authorize a surrender when the defendant did return. (Thomas v. Bullcley, 5 Cow., 25; Boardman v. Bowler, 1 John. C., 413; Warner v. Hayden, 2 Wend., 252; Bk. of Geneva v, Reynolds, 12 Abb., 81.) The affidavits presented on the renewal of the motion, pursuant to the leave granted by the General Term, show that the alleged indemnity was of no value. It was utterly unavailable to Mr. Hildreth. It was in fact no indemnity. The rules in regard to the doctrine of undue influence have been asserted in numerous cases in our own courts. { Whelan v. Whelan, 3 Cow., 537; Sears v. Shafer, 1 Barb., 44; 2 Seld., 272; Howell v. Ransom, 11 Paige, 538; Bilis v. Messervie, id., 467; 5 Denio, 640.) The general rule is clearly settled that a mari’ied woman is not liable on an obligation in the xxature of a guarantee or suretyship. This is modified, of course, by the question or poiixt, as to how far she can charge her separate estate by such axx obligation. (Manhattan Brass Co. v. Thompson, 58 N. Y., 80; Yale v. Dederer, 68 id., 329; Woolsey v. Brown, 11 Hun, 52.) The General Term can x-eview this order. (Howell v. Mills, 53 N. Y., 322; Bolles v. Buff, 43 id., 469; Anonymous, 59 id., 315; Brady v. Brundage, id., 310.)

      Thomas Bracken, for the respondexxt.
    The motion was properly •denied, aixd on the same facts upoix which it had beeix previously dexxied. This dexxial was sustained by the General Term. (Mills v. Hildreth, 7 Hun, 298.) The liability of the defendants was and is fixed axxd determined, and the plaixxtiff, by the terms of the bond sued oxx, is axxd has been entitled to the amouxxt of damages agreed upoix to be paid by these defendants on the failure of their principal to comply with the terms of the bond. (Barnes v. Gill,
      13 Abb. Pr. [N. S.J, 116; Mills v. Hildreth, 12 S. C. R., 364, and cases cited ; 5 Hun, 364.) After an action has been begun against the bail no order can be obtained under the Code, unless some one of the events specified in Code, section 191, has occurred, within twenty days from commencement of the action, or within such time as may be allowed by the court. More than twenty-days have elapsed, and no time has been granted by the court. None of the conditions have been fulfilled. (Hayes v. Carrington,, 12 Abb., 179; Balter v. Curtiss, 10 id., 279; 2 R. S., 388, 397, § 34.) It appears in this case that defendant Hildreth, now sued as bondsman, has been indemnified; and where it cannot be-shown that bail have not in any way been indemnified, then th& motion for exoneration must be denied. (Mills v. Hildreth, T Hun, 298; Bit. of Geneva v. Reynolds, 12 Abb., 81; Same Caser 20 How., 18, and cases cited; also 1 Waite’s Pr., 678, and cases cited.) It was in the discretion of the court to grant or refuse-, the order. It was refused, and being a discretionary order is not appealable. (Tauton v. Grop, 8 Abb. [N. S.], 385, and cases cited ; Forrest v. Forrest, 25 N. Y., 501; Brady v. Brundage,. 59 id., 310; Anonymous, id., 315.)
   Ingalls, J. :

This motion was decided by the Special Term, and upon appeal to* this court the order was affirmed, but with leave to the appellant to renew the motion at Special Term, which has been done,, with a similar result. The opinion of the judge at Special Term, shows that the relief sought was denied, mainly upon the ground that Hildreth holds an undertaking, executed by the wife of Rodewald, to indemnify him against any loss to which he may be subjected in consequence of becoming bail for her husband, and that the facts do not show that such security is either worthless or inadequate. '

We think his conclusion is not without foundation. The obligation was voluntarily assumed by Hildreth, and relied upon by the plaintiff. The wife of Rodewald has interposed for the protection of her husband, and pledged her property, as the law allows her to do. The act may have been improvident on her part, and Hildreth may have acted unwisely in becoming bail, yet the obligations were voluntarily assumed, and tbe fact will not justify this court in reversing the order of tbe Special Term. It .should be affirmed.

Davis, P. J.:

I am of opinion that the court below- was correct in bolding that the new application did not essentially change the facts as presented before, and did not show that the indemnity given to the bail by Mrs. Rodewald was invalid or insufficient, wholly or in part, or that she w'as insolvent. the order should therefore be affirmed, for the reasons assigned on the former appeal to this court.

Neither tbe facts nor tbe law have been changed, and our sympathies ought not to lead us to disregard tbe legal rights of tbe plaintiff.

'Brady, J.,

dissenting:

. Judge Brady after stating tbe facts as above set forth in addition thereto said:

It may be here noted that it did not appear on the original motion that Mrs. Rodewald was not indemnified in any way by her husband. It further appears also that Mrs. Rodewald ■denies her liability on the bond executed by her under the laws of this State. This statement presents the questions which we are called upon to examine and the facts are novel. the departure of the defendant Rodewald was not made under any “unsettled conditions. He bad applied for bis discharge and bad ■obtained it. the details were left with bis lawyers and be bad the right to suppose that they would be carried out. His absence was therefore justified and warranted. As soon as practicable after Imowledge of the invalidity of bis discharge be returned to this jurisdiction, ready to submit to its process. There is in the case, therefore, so far as the bail are concerned, and their principal in ■connection with them, the absence of all bad faith, the absence of any intention to evade the jurisdiction of this court in all its plentitude. the bail defended the action brought against them, relying on the validity of the discharge granted to their principal, .and were sustained until the adverse judgment of the Geueral Term. Until that judgment they were not called upon to exercise any power over their principal, because until that event he was free from arrest by the decision of this court, made by the appropriate tribunal for the trial of such questions, and their duty to have their principal here to answer in any way should be held to have commenced then and then only. Bail are treated with great liberality by the courts. The failure of the execution against the person, to accomplish its object, does not establish the absolute right of the judgment creditor to a remedy agamst them. The principal .may still be surrendered -and the obligation of the bail wholly discharged in that way, and the surrender may be allowed after the expiration of the twenty days given to answer the complaint in the action against them. The power of the court to allow this cannot be questioned. It becomes a matter of discretion and of costs. (Code of Civil Procedure, 601; Brady v. Brundage, 59 N. Y. Rep., 310, and cases cited.)

Under the peculiar facts and circumstances disclosed on this motion (excluding for the present the question of the assumed indemnification), the application should have been granted because of the good faith of the principal and bail, and of the existing pronounced and adjudicated legal defence to any proceeding by the judgment creditor, until the decision of the General Term which changed the relations of the defendant Hildreth to such creditor, and imposed upon the bail the obligation either to surrender their principal or pay the judgment, and because of the readiness of the principal to respond to the process against his person and thus answer the ultimate penalty of the proceeding against him, indicated by his presence for a surrender as soon as practicable after the judgment making it necessary for him to appear. As already suggested this obligation mentioned did not exist as an absolute duty until such decision, because the defence created by the discharge was sustained.

Having arrived at this conclusion, the question remaining is whether the indemnification is such as to deprive the defendant Hildreth of that consideration, which is shown to bail as a general rule in the exercise of the equitable powers of the court.

It does not seem to be sufficiently established that such an indemnity exists. If it exists at all it is in the form of a bond, the value of which depends upon the property situate in the State of Kentucky and is one executed by the wife of the principal, not only without indemnity from her husband, and having no relation to or connection with her separate estate, but under circumstances which render its validity as an instrument doubtful. The alleged threats and intimidations by the judgment creditor which secured the execution of the bond are not met, and if true, render the bond void. (See Eadie v. Slimmon, 26 N. Y. R., 9; Story’s Equity, § 239; Whelan v. Whelan, 3 Cow., 537; Sears v. Shafer, 1 Barb., 44; S. C., 2 Seldon, 272; Howell v. Ransom, 11 Paige, 538; Ellis v. Messervie, id., 467; Evans v. Ellis, 5 Denio, 640.) This is not a case in which the bail has money in his hands, or goods of any kind in his possession to meet the obligations assumed, but at best, a doubtful indemnity; doubtful in its validity as a binding instrument, and also in regard to the responsibility of the person making it. Under all the circumstances of this case, therefore, we think the motion made on the second application should have been granted, and that the order made at Special Term should be reversed, and the cause sent back to the Special Term for consideration as to the terms to be imposed.

Order affirmed.


author: Daniels, J.: Potter, J.:

text:
    HUBERT O. THOMPSON, Respondent, v. THE SOCIETY OF TAMMANY, OR COLUMBIAN ORDER in the City of New York, Appellant.

      Initiation of members into a corporate society — when not restrained by injunction— Summary applications to settle elections should be under 1 Jievised Statutes 603, § 5.
    This action was brought by the plaintiff, as a member of the Society of Tammany, to restrain it, its agents, officers, etc., from initiating certain persons alleged to have been elected members thereof at a meeting held on December 31,1878, and from doing anything- to complete or carry into effect such pretended election, on the ground that the meeting, at which such persons were elected, was irregularly and fraudulently held.
    The complaint alleged that the society, unless restrained from so doing, would initiate such persons, as members, which would injure and deprive the plaintiff of his legal rights, privileges and powers as a member, and of his rightful voice in the management and disposition of the property and affairs of the society. It was not claimed that plaintiff would be deprived of any pecuniary benefit by the admission of such members. The defendant was incorporated by chapter 115 of 1805, as amended by chapter 593 of 1867, for the purpose of affording relief to the indigent and distressed members of the society, and to their widows and orphans.

      Held, that a temporary injunction was improperly granted, and should be vacated. That if the election was irregular, the plaintiff’s proper remedy was by a summary application to the court, under 1 R. S., 603, § 5. (Per Daniels, J.)
    Appeal from an order continuing an injunction, and also from an order denying a motion to strike out certain allegations of the complaint.

      A. J. Vanderpoel, James O. Spencer, John I). Townsend and F. F. Vanderveer, for the appellant.
    This whole subject is covered by 1 Eevised Statutes, p. 603, § 5, and the language of that section is a complete answer to the criticism of the learned judge at Special Term, in which he limits the word “franchise” as used in this behalf in the section of the Code, relative to the writ of quo warranto, hereafter quoted; to corporate offices, and excludes from it membership in a corporation. The court will not interpose by injunction unless some civil right or pecuniary interest is imperiled. (Hurst v. Harvey, 32 Barb., 55; Mickles
      v. Rochester City Bank, 11 Paige, 112; Strong, J., Weimore v. Story, 3 Abb. Pr., 274; White v. Brownell, 2 Daly, 329; Baptist Church v. Withered, 3 Paige, 296; Weimore v. Scovell, 3 Edw. Ch., 515.) If the defeat of the plaintiff’s views by means of the new members constituted an injury that the court would interfere to prevent, it must appear, as it does not in this case, to be certain and imminent, to authorize such interference. (Ogden v. North River Bank, 6 Johns Ch., 160; Sherwood v. Connolly, 35 How. Pr., 124) It appears on the face of this complaint that all other members of the Society of Tammany or Columbian Order, similarly situated with the plaintiff,' are not made parties plaintiff. The authorities both in England and this country agree that for a complete determination of all rights affected by the action, such joinder is necessary. (Moody v. Alstin, 1 Phillips Chr., 791; Creaves v. Gouge, 69 N. Y., 154; Taylor v. Earle, 8 Hun, 1; Gray v. N Y. and V. S. S. Co., 3 id., 383; Wood v. Draper, 24 Barb., 187; In the Matter, of the Election of Trustees of the Pioneer Paper Co., 36 How. Pr., 102; Smith v. Rathbone, 66 Barb., 402.) A court of equity has no jurisdiction in this case. No authority has been cited, and none can be cited in which a court of equity has granted an injunction in an action, the object of which was to test the title to an office, or the legality of an election. (Albany and Susquehanna R. R. Case, 57 N. Y., 161; Mickles v. Rochester City Bank, 11 Paige, 118; Attorney General v. Clarendon, 17 Yes. Jr., 491; Tappan v. Gray, 9 Paige, 507, 509; S. C., 9 id., 507; affirmed, 7 Hill, 259; People v. Utica Ins. Co., 2 Johns Ch., 371; Att’y Gen. v. Bk. of Niagara, Hopk., 354; Mott v. Connolly, 50 Barb., 516.) The party has his complete remedy at law. This case stands in the same position as if a person were elected an officer of the Tammany society, and fraud was alleged in his election. The remedy to test his title to the office would be quo warranto. (Section 432 of the Code; 2 R. S., 582, as to quo warranto.) This membership of the Tammany society is a franchise, and it is well-settled that the right to a franchise can only be tested on mandamus or quo warranto. (1 Burr., 407; 5 T. R., 377; People v. Medical Society, 24 Barb., 577; S. C., 32 N. Y., 187; Rex v. Cudlipp, 6 T. R., 503; 3 id., 599; Code on Informations, vol. 1, 138; Rex v. Rowe, 4 Burr., 2287; Rex v.
      Williams, 2 id., 482; Dr. Ashew’s Case, 4 id., 2195; King v. White, 4 Nev. & Perry, 84; Tapping, 96; JRex v. West Love, 5 D. & R., 598; S. C, 3 B. & C., 677; R. v. London [Mayor], 4 M. & B., 54; 8. C, 9 B. & C., 1; The U. 8. exrel., etc., v. Com. of Dubuque Co., 1 Morris [Iowa Bts.]; Lanson v. Kolbenson, 61 111., 405; King v. Pamj, 6 Ad. & El., 810; King v. White, 5 id., 613; Reg v. Mayor of Eye, 9 id., 670; Queen v. Mayor of Harwich, 8 id., 919; Rex v. Corp'n of Carmarthen, 2 Burr., 869; The Queen v. Pepper, 7 Adol. & El., 748; Rex v. Breton Mayor, 2 Jeyes, Town Clerk of Northampton, 2260; 4 Burr., 2260; Commonwealth v. Union Fire, etc., 5 Mass., 230; Pcuynter v. Clegg, 9 Phila. B., 480; Updegraff v. Chaus, 11 Wright [Penn.], 103; Owen v. Whittaker, 20 N. J. Eq., 122.)

      John K. Porten*, for the respondent.

      Quo warranto would not be an adequate remedy. Pending it the plaintiff would suffer the very injury he is seeking to prevent. In such a case equity will intervene where equitable grounds appear. Plaintiff has a right to enjoin the corporation from fraudulently putting him in a position where he can get no relief except by quo warranto, and then an inadequate remedy. (Hart v. Harvey, 32 Barb., 55; Tyack v. Brumley, 1 Barb. Ch., 519.) The mere fact that the relief asked is connected with or may affect an election does not oust the jurisdiction of equity. (Mcllvain v. Christ Church of Reading, 28 Legal Int., 126; McCrary’s Am. Law of Elections, § 319; Brown v. Pacific M. Co., 5 Blatch. [C. C.] B., 525; Abbott v. Am., etc., 4 id., 489; Hille v. Parish, 1 McCart. [N. J.], 380.)
   Daniels, J.:

The injunction, which the order appealed from continued, restrains the Society of Tammany or Columbian Order, in the city of New York, its agents, officers, servants and members from initiating as members of the corporation, one hundred and forty-seven persons alleged to have been elected as members at a meeting held on the 31st day of December, 1878, and from doing anything to complete or carry into effect the pretended election of those persons, and from permitting any of them to do any act, or enjoy, or exercise any power, privilege or right as members of the corporation by virtue of their pretended election. It was issued on the 6th day of January, 1879, on the complaint and application of the plaintiff as a member of the corporation, for the reason that the meeting was alleged to have been irregularly and fraudulently held, at which these persons were in form elected as members of the corporation. But whether the facts proved supported this position will not require special examination in determining the disposition which should be made of the principal appeal. As to that, the main point to be considered is whether assuming it to have been established as a matter of fact that the election was illegal, the right to the injunction has been maintained.

Before .the defendant was incorporated, which was done by special act passed April 9, 1805, the society had existed as a voluntary association, for the purpose of affording relief to the indigent and distressed members of the said association, their widows and orphans, and others who “ might be found proper objects of their charity.” And it was for the more effectual observance of those purposes that the charter was enacted, and the society invested with corporate existence. It was clothed with the power to acquire and hold real and personal property of the clear yearly value of $5,000, which by chapter 593 of the Laws of 1867, was extended to the yearly income of not exceeding $50,000. And this was for the purpose, as the charter expressed it, “ of enabling them the better to carry into effect the benevolent purpose of affording relief to the indigent and distressed.” And after adding the power to lease, demise and dispose of its property according to its will and. pleasure, it was further provided that the society, “ and their successors, shall have power from to time, to make, constitute, ordain and establish by-laws, constitutions, ordinances and regulations, as they shall judge proper, for the election of their officers j for the election, or admission, of new members of the said corporation ; and the terms and manner of admission ; for the better government and regulation of their officers and members ; for fixing the times and places of meeting of the said corporation ; and for regulating all the affairs and business of the said corporation. The only restriction to which this very ample grant of corporate power was subjected was, that the by-laws and regulations should not be repugnant to the Constitution or laws of the United States, or of this State. (Webster’s Laws, vol. 4, 278, ch. 115, Laws of 1805.)

The more important of these provisions, requiring to be considered in the disposition of the appeal, is that by which the avenue for the admission of new members has been designated as an election. This conformed to what has been otherwise regarded as the suitable designation of the proceeding. For among the essential powers possessed by corporations, that “ of electing , members in the room of such as are removed by death, or otherwise, has been deemed to be necessarily implied.” (Angell & Ames on Corp. [4th ed.], § 110.) And that the admission of new members required the exercise of the usual functions of an election has been, in terms, conceded by the complaint in this action, and it was assumed by the action of the corporation itself in framing its by-laws. In this view the allegations have been made that the corporation ordained and established certain regulations for the election and admission of new members. Among these were the provisions that new members might be elected by the votes of the members of the corporation at any regular meeting ; that thirteen members should be sufficient to constitute a legal meeting; and that two adverse votes in every sixteen should be sufficient to defeat the election of a new member ; and after his election the now member should be initiated according to certain prescribed forms in order to become a member of the corporation. It is further alleged that the members who assembled at the meeting stated to have been improperly convened on the 31st of December, 1878, pretended to elect 147 persons, or thereabouts, membei’S of the corporation. And that the persons so elected will be initiated as members of the corporation as soon as that can conveniently be done, if its action in that respect shall not be restrained. The complaint proceeded throughout upon this subject on the theory suggested by the charter and the by-laws, that the selection of new members was an election. And it was followed in the same manner by the injunction which, in its inferences to what had been done, mentioned it as a pretended election. The charter, by-laws, and the allegations made, require that it should be hold and deemed to be an election, which at the utmost was irregularly held for want of the notice which it had been provided should be published, for the purpose of lawfully convening the meeting at which it took place. • The proceeding itself included the attributes of an election. The candidates for membership at first appear to have been proposed for the consideration of the members, and whether they should become so or not was next to be determined by vote to be taken at a regular meeting of the society. This was an election as much so, certainly, as that provided for the ordinary choice of corporate officers. And, as an election, it was made subject to the summary control of this court for the correction of any intervening or fundamental irregularity.

Upon this subject it. has been enacted in very general terms that “it shall be the duty of the Supreme Court, upon the application of any person, or persons, or body corporate, that may be aggrieved by, or may complain of, any election or any proceeding, act or matter, in or touching the same (reasonable notice having been given to the adverse party, or to those who are to be affected thereby, of such intended application) to proceed forthwith .and in a summary way to hear the affidavits, proofs and allegations of the parties, or otherwise inquire into the matters or causes of complaint, and thereupon to establish the election so complained of, or to order a new election, or make such order and give such relief in the premises as right and justice may appear to the said Supreme Court to require.” (1 R. S., 603, § 5.) And the only corporations excepted from the control of this enactment are those of incorporated libraries, religious societies, and moneyed corporations whose charters have been passed, renewed or extended after the 1st day of January, 1828. (Id., 601, § 11.)

This provision was made in very extended terms, so much so that it included corporations of the class to which the defendant belonged. And it was intended by it to supply a speedy and informal remedy for the correction of improper proceedings in corporate elections. It has not in terms or by any fair implication been confined to elections for corporate officers. But it has been expressly extended to any election. And in the provision concerning the giving of notice it has been made evident that it was not designed to be restricted to controversies in which there might be an adverse party, as would be the case where the election of an officer might be in contest. For notice has been required, when there may be no adverse party, to those who are to be affected by the application. It was of course within the power of the Legislature to have restrained this remedy to the election of corporate officers. But if that had been the design some terms would have been employed to express it when it would have been so easy and so natural to have done so. It was not done, but the proceeding was made applicable to all elections. And no good reason existed for discriminating as to this remedy between the election of a member merely, and that of an officer. The former was of the least practical consequence to the corporation. It was of much less importance than the election of an officer, and for that reason might more properly be made the subject of a summary remedy for its correction. It would be unreasonable to hold that the provision should afford the means of setting aside an election held to fill an office, but that it should be inapplicable to a similar proceeding to add a member. There is nothing in the language used, nor in tlie purpose or object of the enactment, warranting such a discrimination. And that it was intended to include more than an election fora corporate office is evident from the proviso added to the portion of the section already quoted. For, by that, more formal proceedings are authorized which may be adopted for the trial of the right to the office or offices of the corporation, and in addition to that, of the franchise also which may be drawn in question. This last provision was a plain indication that more than the election to an office might be tried and determined in this way. For it in terms included that of a disputed franchise arising out of, or dependent upon, a contested election.

This proviso, as well as the portion of the section preceding it, have both been evidently framed in such language as to render it the duty of the Supreme Court to correct all irregularities and abuses in corporate elections, in the same summary way, for whatever purpose they may have been held. This design was certainly exhibited by the former part of the section, for it was made to include any election, whether contested by an adverse claimant under it, or simply affecting another person without any other claimant of the same right. And the proceeding may be instituted either by a person or persons aggrieved, or by one simply complaining that the election was for any reason unlawfully held. By the latter portion of the section, also, the remedy was distinctly applied to more than a contest for corporate offices. It was extended to the right to a disputed franchise, when the election was such as affected it. This was not limited to a franchise of the corporation itself, and that could not have been what was intended by the provision. For those franchises are defined and fixed by the charter and the constitution and by-laws adopted pursuant to it. They are permanent in their nature, and not liable to the fluctuations of an election. The franchise which it was contemplated might be involved in dispute by means of an election must, therefore, have been something different from those appertaining to the corporation itself. And the only others that could ordinarily be placed in that condition are those which, by means of an election, can be vested in individuals either as the officers or members of the corporation. Those of officers were in plain terms otherwise clearly provided for, and consequently could not have been intended to be included within this other provision concerning a disputed franchise. It must for that reason have been designed by this provison to provide for what had not already been so specially enumerated. And to include all those franchises which it was not convenient to particularize, and which still might be affected by and made the subject of an election, not held for the selection of corporate officers. Among them may very properly be included that of membership, with the rights and privileges incident to that relation. And as every other corporate election had been subjected previously to this statutory proceeding, that must have been considered to be a franchise, and within the legal meaning of that term as the statute employed it. That could very appropriately have been so understood, for a franchise is nothing more than a special privilege created by law, and it can as well be conferred upon an individual as a member of a corporation, as upon any aggregation of persons associated for its formation. In a strictly legal sense the right of membership in a corporation of this description is a franchise, and when claimed by virtue of a contested election it will consequently be brought within the controlling authority of this statutory remedy. It was so defined in the case of the Bank of Augusta v. Earle (18 Peters, 519), where it was declared that “franchises are special privileges conferred by government upon individuals, and which do not belong to the citizens of the country generally of common right. It is essential to the character of a franchise that it should be a grant from the sovereign authority, and in this country no franchise can be held which is not derived from a law of the State.” (Id., 595.) The right of a person to membership in this corporation by virtue of an election was certainly of this description, for it was derived solely, and could only be enjoyed, under the charter and the by-laws made pursuant to it and entitled to similar weight as authority. That was the view taken of the signification of this term in People v. Erie Co. Medical Society (24 Barb., 570, 577), and People v. Same (32 N. Y., 187, 191). And it brought the disputed election within the scope of this statutory remedy. For that reason the controversy ivas placed under the jurisdiction of this court as a court of law, and it results from this conclusion that an action for an injunction was not the appropriate remedy. Mickles v. Rochester City Bank(11 Paige, 118).

If, under the preceding practice of courts of equity, they had acquired jurisdiction over the unqualified subject of contested corporate elections, the enactment of this remedy would not have superceded such authority. (Sedgwick on Stat. & Const. Law, 93-97.) But that was not the case, for courts of equity exercised no such previous authority. The rule in equity on this subject has been held to be that “ when the object is simply to determine the regularity of an election, or to declare an office to which any one has been duly elected forfeited, a court of law is the proper and only competent tribunal.” (Johnston v. Jones, 32 N. J. Eq., 216, 226; High on Injunctions, §§ 781, 789; Hartt v. Harvey, 32 Barb., 55, 65.)

The injunction in this case was claimed for the simple reason, as that was assigned by the complaint, that the corporation, unless restrained from doing so, would initiate the persons whose election was questioned, as members, which would injure and deprive the plaintiff of his legal rights, privileges and powers as a member, and of his rightful voice in the management and disposition of the property and affairs of the corporation. And the other members, it was alleged, were in danger of sustaining similar injury. But it was not stated that either would be deprived of any pecuniary benefit which, in any event, he might bo entitled to enjoy under the charter and by-laws. The only apprehended injury was that his controlling ability as a voter would lie diminished. That, however, would not certainly follow. For as it was not shown that these persons wore reasonably sure to vote the other way, no good ground existed for supposing that the plaintiff would sustain even this injury by their admission. One-half, or even more than that, might vote with him. And if they did he could sustain no possible injury from them in the effect of his vote. The injury anticipated was merely conjectural, dependent on the views these persons, or such of them as should vote, might entertain on the subjects to be settled in that way. It was not shown that they had become committed to any adverse policy for the government of the corporate affairs; but it did otherwise appear from the affidavits of sixty-seven of them that they had espoused no course of conduct, inconsistent with the true interests and future ¡Prosperity of the society. For these reasons it was not proved, either by the complaint or the affidavits, that the plaintiff' stood in danger of any act on their part that would produce injury to him, or that the .defendant threatened, or ivas about to do any act in violation of his rights. And one or the other was required by the statute to entitle him to an injunction. (Code of Civil Procedure, §§ 603-604.)

It does not appear when the injunction order was served. But it could not have been before the sixth day of January, which was the day of its date. And, by the complaint, it was shown that a regular meeting of the corporation might be held on the evening of that day. By the affidavit of the secretary it appears to have been so held, and that the plaintiff was present at the time as one of the members. Then the subject of the meeting, at which the controverted election was held was considered, and to the extent of approving the minutes, what had then taken place was approved by the action of this meeting. This was not conclusive over the controversy, but it showed by the action of a regular meeting that the members of the society who, as they had been convened, were .competent to elect all these persons as new members, were not disposed to disapprove of what it is alleged had been so irregularly performed. Without placing any special stress upon this approval, it is enough for the disposition of the appeal that the remedy of the plaintiff is by the summary application specially provided by the statute, and not by means of an injunction, and that no such impending injury to the plaintiff’s rights has been shown to be probable, as will justify resort to an order of that nature. These obstacles in the plaintiff’s way must dispose of the case as it has now been presented, which will render the consideration of the appeal from the other order unnecessary. The objections now allowed to prevail, as controlling, do not seem to have been pressed upon the consideration of the court hearing the motion. If they had they would undoubtedly have been allowed the same weight as has now been accorded to them. But, without indulging in probable conjectures upon this subject, it is enough to add the case must be at present disposed of on account of the effect to which these objections are entitled. The order continuing the injunction should be reversed, and the appeal taken from the order denying the motion to strike out certain portions of the complaint dismissed, without cost to either party, and without prejudice to the application which the statute has authorized to be made to determine the legality of the election.

Potter, J.:

I have not had a sufficient opportunity to reach a conclusion satisfactory to myself in relation to the main question discussed by my brother Daniels in this case. It is both difficult and novel. I am not prepared to decide that the statute referred to by him is applicable to an election to membership in a social club or benevolent society. I am willing to concur with his view that there is no occasion or propriety in a resort to the extraordinary remedy of an injunction. Upon the case, as presented by the papers, it would seem that one member assumes to restrain the action of the society of which he is a member. It is practically the case of a single member’s attempt to control the body of which he is but one.

If the election of the one hundred and forty-seven members was illegal, that can be determined in the due course of proceeding, and the illegitimate members rejected or the society can refuse to initiate them. I, therefore, think no sufficient case is made for an injunction and concur in the result that the injunction shall be dissolved.

Present — Ingalls, P. J.; Daniels and Potter, JJ.

Order continuing injunction reversed, and appeal taken from the order denying motion to strike out certain portions of the complaint dismissed, without costs to either party and without prejudice to the application which the statute has authorized to be made.


author: Potter, J.:

text:
    SAMUEL H. STERETT AND WILLIAM T. COLBRON, Respondents, v. DENVER AND RIO GRANDE RAILWAY COMPANY, Appellant.

      Code of Civil Procedure, § 432, sub. 3 — who not a managing agent within.

    An assistant secretary of a foreign railroad company, whose duty consists in making such records as he may be expressly directed to make, is not a managing agent within the meaning of subdivision 3 of section 432 of the Code of Civil Procedure, authorizing service upon the corporation by the delivery of a summons to a managing agent.
    Appeal from an order denying a motion to set aside the service of the summons in this action.
    The cause of action arose upon an alleged broach of contract on the part of the defendant, in not converting certain scrip issued by said company into bonds. The demand for such exchange was first made of the agent in New York, and thereafter by letters written to the officers of the company in Colorado.

      Theodore F. II. Meyer, for the appellant.

      Thomas Vernon, for the respondents.
   Potter, J.:

The defendant is a foreign corporation created by the laws of Colorado. The summons was served upon one Hinchman, in the city of New York.

Personal service of a summons upon a foreign corporation in this State can only be made in the manner provided by section 432 of Code of Civil Procedure. Subdivision 1 of said section provides that such service may be made by delivering a copy thereof within this State to the president, treasurer or secretary, or if the corporation lacks either of those officers, to the officers performing corresponding functions under another name.

The defendant had provided each of said offices, and filled them with others than said Hinchman on whom the service was made.

The defendant had not designated any one upon whom service could be made pursuant to subdivision 2 of said section.

Service therefore had to be made pursuant to subdivision 3 of said section, and it is contended that service was well made in this case under said provision.

To effect good service under that provision the defendant must have property within the State, or the cause of action must have arisen within the State, and the summons must have been delivered to the cashier, director or managing agent of the defendant.

It is claimed that Hinchman was the managing agent of defendant.

The evidence fails to show that he was a managing agent of defendant. He ivas appointed by the president assistant secretary, and the only duty or service shown to have been performed by him was the signing of some scrip certificates.

The allegation in the plaintiff’s affidavit that Hinchman ivas assistant secretary and managing agent, is a conclusion or inference and not a fact.

The duty of a managing agent of a railroad company embraces the general and practical operations and business of running its road, and involves the exercise of a wide discretion. The duties of a managing agent and of an assistant secretary are entirely distinct and dissimilar. As assistant secretary it was but the simple duty of Hinchman to write, and. record as he was directed, and he states in his affidavit that he did nothing except under express direction. The nature and character of a managing agent has been adjudicated in accordance with these views. (Brewster v. Mich. Cen. R. R., 5 How., 183; Doty v. Mich. Cen. R. R., 8 Abb., 427; Flynn v. Hud. R. R., 6 How., 308.)

But the evidence contained in the affidavits shows the defendant had no property in this State at the time of the service of the summons, Hinchman, the assistant secretary, swears unqualifiedly that the defendant had no property in the State, and he had the best opportunity of knowing the fact. The only evidence tending to show that the defendant had property in this State is the fact that some furniture was in the office or room occupied by said Hinchman.

It is very clear from the case made by the affidavits that if plaintiff had any cause of action (which is extremely doubtful) that it did not arise in this State. The demand for the exchange of mortgage bonds for scrip should have been made of the company at its place of business in Colorado.

No authority is shown to be possessed by Hinchman, certainly not by Hinchman’s brother, to make the exchange. The plaintiffs seem to have had the same opinion, for on the twenty-fifth of November, three days after making the demand of Hinchman, they sent a letter which, if capable of being construed into a demand of the defendant at their office in Colorado, did not reach the company till the thirtieth of November, at 2 p. m., and before that date namely, the twenty-fifth, the plaintiffs had demanded the cash instead of bonds for a part of their scrip. Thus nullifying the demand for bonds, even if it had been a sufficient demand, and before that time of the day, the defendant had exercised its option of paying the scrip in cash.

We think the order appealed from should be reversed, with ten dollars costs and the disbursements for printing, and that the service of the summons should be set aside with ten dollars costs of the motion to set the same aside.

Brady, J., concurred in result.

Present — Brady and Potter, JJ.

Order reversed, with ten dollars costs and disbursements; service of summons set aside with ten dollars costs of motion.


author: Brady, J. :

text:
    CHARLES CRASKE, Appellant, v. THE CHRISTIAN UNION PUBLISHING COMPANY, Respondent.

      Verbal lease for more than one year — effect of entry under.

    An entry under a yerbal lease for more than one year operates to create a tenancy from year to year.
    Appeal from a judgment, entered upon an order dismissing the complaint.

      Walsh & Bckerson, for the appellant.

      William Q. Beecher, for the respondent.
   Brady, J. :

The defendant entered the demised premises under a' parol agreement to take a lease for two years and a-half. ' After the entry which was in November, 1875, at the request of the defendant through its representative, the execution of the lease was deferred or suspended until there was a new election, which was to take place in the company, or something of that kind, and it seems to have been determined ultimately and before the 1st of May, 1876, namely, on or about the twenty-fourth March of that year that the lease ■would not be taken by the defendant.

The occupation by the defendant continued, however, until the first of May when an attempt was made to surrender the premises. The rent which was agreed upon when the contract for the lease was made was paid also up to the first of May, and this action was brought to recover the rent falling due on the first day of August succeeding. The first question presented is, what relation was established between the parties by the parol lease for two years and a-half, and possession under it ? The question is easily answered. The parol lease for a longer term than one year was void by the statute (2 R. S., 135, § 8), but operated so as to create a tenancy from year to year. There is no doubt of this as a legal proposition. (Dorr v. Barney, 12 Hun, 259, and cases cited; Lounsbery v. Snyder, 31 N. Y. Rep., 514.) The consequence was that for one year from the 1st of November, 1875, the defendant was bound by the agreement made. ■ (Id.)

The surrender suggested was by notice that it was not considered wise on the part of the company to renew the lease and, therefore, the notification. This was dated the 24th of March, 1876. On the first of May following keys were sent to the agents of the property with notice that the premises were surrendered, to which the response was given that the keys were received, and a suggestion made that an effort to rent the premises would be made if it was desired by the defendant. The defendant then removed from the premises, but left there several articles, large and small, which were not disturbed by the plaintiff'. It also appears that Mr. King, who acted for the defendant, subsequently asked the plaintiff’s agent if he could not rent them. These are the salient points of this question appearing in' the case. Upon the conclusion of the plaintiff’s evidence, nevertheless, the complaint was dismissed, and according to the appeal book, on the ground that there was no such use and occupation shown as contemplated by law. The dismissal seems to have been based upon the theory that the lease expired on the 1st of May, 1876, because there was no time agreed upon, the parol lease being void. This was error as we have seen. The statute only applies where no time is agreed upon (1 R. S., 744, § 1), which was not the fact here. When the agreement rests in parol and ■ the time is agreed upon, but extends beyond one year, the term is limited to one year only, for which period the agreement is valid and binding under the statute and authorities (supra), though resting in parol. The relation of landlord and tenant existing, the form of the action was proper. (1 Rev. Stat., 747, § 23; Taylor’s Landlord & Tenant, 229, cases cited.)

If the learned justice presiding at the trial. held the surrender accomplished, it was error. (See Taylor L. & T., pp. 69, 70.) It is clear that no consent was given by the landlord to such a result;

For these reasons the judgment must be reversed.

Ingalls, J., concurred.

Present — Davis, P. J., Brady and Ingalls, J.

Judgment reversed.


author: Per Curiam:

text:
    THE MERCHANTS’ BANK OF CANADA, Respondent and Appellant, v. DE GRASSE LIVINGSTON, Appellant and Respondent, Impleaded with WILLIAM C. BARRETT.

      Conversion of stock — damages for.

    The defendant Livingston being the owner of certain shares of stock, pledged them with one B. to secure a loan of $8,000. Thereafter B., without authority, pledged the stock to plaintiff, to secure a loan to himself of $9,000. In an action brought by plaintiff to foreclose the pledge to him and to have this stock sold, the Cotirt of Appeals held that the pledge of the stock by B. was void as against the defendant Livingston, and reversed the judgment of the court below, which had been in favor of the plaintiff. Pending the appeal the stock had been sold, in pursuance of a stipulation between the parties, and brought ninety-five per cent; at the time of the second trial it was shown to have been worth 107 per cent.

      Held, that as the defendant Livingston had consented to the sale, the plaintiff was only chargeable with the amount for which the stock was sold.
    Appeal by both the plaintiff and the defendant from the judgment, rendered herein at Special Term, in favor of the defendant for $9,000.15, the plaintiff claiming that the judgment is for too large a sum, and the defendant claiming that it is for too little.
    The defendant Livingston at some time prior to the year 1874 borrowed $3,167.42 from the defendant Barrett, and as collateral security for the payment thereof deposited with Barrett a certificate for fifty shares of stock in the Adams Express Company, which was afterwards exchanged for another certificate for 100 shares, and gave Mr. Barrett the usual power of attorney to transfer the stock.
    On January 15, 1875, Mr. Barrett took the certificate of stock to the plaintiff, stated that he wished to borrow $8,000 upon it for one of his clients who did not wish to sell, and obtained $8,000 at that time upon the pledge of the certificate and power of attorney, and on July 1, 1875, $1,000 more.
    This action was brought to foreclose the pledge of this stock, and to have the same sold in satisfaction of the plaintiff’s lien.
    Judgment was rendered to that effect, affirmed by the General Term, but reversed by the Court of Appeals, upon the ground that the plaintiff knowing that Barrett only claimed to act in behalf of a client, could not acquire any better title than Barrett was actually authorized to give, by way of a pledge. Upon a new trial before Mr. Justice Van Brunt, he followed the ruling of the Court of Appeals, andrendered judgment in favor of the defendant, deducting- only the amount which was due from the defendant to Barrett, and for which the stock had been actually pledged to Barrett.
    During the pendency of the former appeal, a stipulation was entered into between the parties for the sale of the stock. This stipulation provided that the sale was to be without prejudice to the rights of either party in any subsequent proceeding in the action. The stock was accordingly sold at ninety-five dollars per-share, and the net amount received by the plaintiff was $9,487.50, This sale took place August 6, 1877, but the defendant proved upon the trial, which took place on November 18, 1878, that the stock had sold at $107 within two days of that time; and the court awarded judgment in favor of the defendant Livingston for that sum.

      A. A. Redfteld, for the plaintiff, appellant and respondent.

      Henry H Anderson, for the defendant, respondent and appellant.
   Per Curiam:

Both parties have appealed from the judgment of the Special Term. The plaintiff contends that the judgment in favor of defendant Livingston is for a larger, and the defendant insists that it is for a lesser sum than it should have been. Under the law as pronounced by the Court of Appeals in this case, and in accordance with which the case was tried, the court below held that the plaintiff was only entitled to hold the securities to the extent of the right or interest which Barrett had in the same by virtue of his loan to defendant, namely, $3,167.42, with interest thereon from September 15, 1874.

The plaintiff having received the proceeds of the sales of the stock is entitled to retain that amount from such proceeds, but is adjudged to pay the balance thereof to the defendant. The only question in this case is in relation to the amount of the balance of such proceeds. The securities were sold by a broker, pursuant to a stipulation of the parties, in place of a referee as provided in the judgment. Upon such sale the securities brought ninety-five per cent. At the time of the trial they were shown ■to have been worth 107 per cent. We think the plaintiff’ should be held to account for the amount for which the securities actually sold. The sum received by plaintiff was at the rate of ninety-five per cent. The defendant consented to and authorized the sale to be made at the time they were sold,, and consequently at the price that ruled at that time. We can perceive no reason or equity in allowing the defendant any higher price, than that which governed at the time that he consented the sale should be made.

The- defendant by authorizing that the sale be made at that time, himself took the risk of the appreciation or depreciation of the securities. The plaintiff’s interest was fixed at the amount of the Barrett debt, the defendant’s interest fluctuated with the value of the stock. The plaintiff had no interest in such fluctuation so long as the securities would bring the amount of its debt, and ought not to be charged with any greater sum than it actually received at a sale made with the consent of the defendant. If the defendant was not satisfied with that sum, he should have refused to permit the sale to be made at that time. Besides the amount received at the sale, the plaintiff should be charged with any dividends received by it, and with interest at four per cent, pursuant to the stipulation in relation to interest.

The judgment should therefore be modified and reduced by the difference between ninety-five per cent for which the stock was sold and 107 per cent, the value of the same the day of trial.

The plaintiff’ should recover costs of the appeal brought by the defendant. Neither party should have costs as against the other in the appeal brought by the plaintiff.

Present — Brady and Potter, JJ.

Judgment modified as directed in opinion.