author: Bartlett, J .*

text:
    JOSEPH W. HAWXHURST, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondents.

      Negligence — a municipality ordering an improvement which must obstruct a highway is liable, without notice, for the failure of the contractor to provide suitable safeguards —1880, chap. 163 — each of the municipalities named therein is liable for the negligence of the contractor in erecting any part of the bridge — when the portion of a highway leading to a bridge is to be treated as a part thereof.

    Upon the trial of this action, brought to recover damages for personal injuries sustained by the plaintiff in falling into the Bronx river, on the Westchester side thereof) at Williams’ bridge, on the evening of December 24, 1881, it appeared that chapter 163 of 1880 imposed the duty of building and maintaining this bridge, and keeping the same in repair, upon the city and county of New York and the county of Westchester. The injuries were sustained while the bridge was being rebuilt by a contractor employed by both municipalities. The principal question in issue upon the trial was as to whether or not a sufficient barrier existed at the time of the accident to guard against the danger which was caused by the work of reconstruction.

      Held, that as the very nature of the improvement which the city and county undertook to make involved danger to persons lawfully on the highway, who might approach the bridge at night and attempt to cross it, they were bound to see that proper safeguards were provided while the work was going on, so as to afford reasonable protection to the public, and that the court erred in charging that the city had a right to presume, in the absence of notice, that the contractor had properly guarded the approach to the bridge, and was not liable, without either express or constructive notice, for the negligence of the contractor, and that, in the absence of actual or express notice, it must appear that the neglect on the part of the contractor had continued for so long a period that the authorities could he charged, under the circumstances, with notice of the condition of affairs.

      Slorrs v. Oity of Utica (17 N. Y., 104); Dressell v. Oity of Kingston (32 Hun, 533); Brusso v Oity of Buff alo (90 H. Y , 679) followed; Heed v. The Mcvyor (31 Hun. 313) distinguished.
    The city claimed that its obligation to erect barriers, when they were necessary, was limited to the New York end of the bridge, and that Westchester county alone could lawfully put them at the other end, and that, as the accident happened within the territorial limits of the county of Westchester, on a public highway where the city had no authority to place barriers, it was not liable for the failure of the contractor to erect them.

      Held, that this claim was not tenable for the following reasons:
    (1 ) That the duty of building, maintaining and repairing the bridge imposed by the statute related, so far as the public were concerned, to the whole of the structure, and carried with it the authority to do whatever was necessary to the proper discharge of that duty.
    12 ) That such barrier as was erected in this case was put up by a contractor employed by the city and county acting together.
    (3.) That the roadway which constituted the approach to the bridge was constructively a part of the bridge itself, so far as concerned the obligation to provide suitable barriers.

      Theall v. Yonkers (31 Hun, 265) distinguished.
    Appeal from a judgment entered upon a verdict in favor of tlie defendant rendered at the circuit.

      W & Allerton, for the appellant.

      D. J". Dean, for the respondents.
   Bartlett, J .*

The plaintiff brought this action to recover damages for personal injuries sustained by falling into the Bronx river, on the Westchester side of that stream, at Williams’ bridge,*on the evening of December 24, 1881. By chapter 163 of the Laws of 1880, the duty of building and maintaining Williams’ bridge, and keeping it in repair, is imposed upon the city and county of New York and the county of Westchester. At the time of the accident, the bridge was being rebuilt by a contractor under the employment of both municipalities. The plaintiff, who was ignorant of this fact, attempted to cross in the darkness, and sustained the injuries for which he seeks compensation in the present suit. The principal question litigated on the trial was, whether or not a sufficient barrier existed to guard against the danger which was occasioned by the work of reconstruction. That the Westchester approach to the bridge was barricaded to some extent is undisputed, but as to what extent the testimony is conflicting. The jury found a verdict for the defendant, and the only exceptions presented by this appeal relate to the charge of the court in respect to notice to the city of the negligence of the contractor in guarding the approach to the bridge.

At the request of counsel for the defendants, the trial judge charged the jury that the city had a right to presume, in the absence of notice, that the contractor had properly guarded the approach to the bridge, and was not liable, without either express or constructive notice, for the negligence of the contractor; and, also, that to hold the city liable in the absence of actual or express notice to the city authorities, it must appear that the neglect on the part of the contractor had continued for so long a period that the authorities could fairly be charged, under the circumstances, with notice of the condition of affairs. The plaintiff contends that the charge in this respect was erroneous, and that, under the circumstances disclosed in this case, no notice to the municipal corporation of the dangerous condition of the highway, by reason of the absence of sufficient guards, was necessary to establish the liability of the defendants. Unquestionably, it was the duty of the defendants, together with the county of Westchester, to maintain the bridge in a condition which should be safe for public traffic. The very nature of the improvement which they undertook to make involved danger to persons lawfully on the highway, who might approach the bridge at night and attempt to cross it. In causing this improvement to be made, therefore* the city of .New York and the county of Westchester were bound to see that proper safeguards were provided while the work was going on, so as to afford reasonable protection to the public. It has repeatedly been held in this State that a municipal corporation is not relieved from its obligation in this respect because it has a employed a contractor to do the work. (Storrs v. City of Utica, 17 N. Y., 104; Dressell v. City of Kingston, 32 Hun, 533; Brusso v. City of Buffalo, 90 N. Y., 679.) In the case last cited, which was an action on account of injuries sustained by falling into an excavation made at the instance of the public authorities in a city street, it was argued that, before the city could be made liable, it must be shown that it had notice of the dangerous condition of the street. The Court of Appeals held that the rule requiring notice did not apply to such a case, and it is urged here that the portion of the charge to which reference has been made is in direct conflict with this decision. We think it is. The defendants, however, endeavor to sustain the correctness of fhe charge in respect to notice by referring to a number of cases which hold that where sufficient barriers have been placed about an excavation in a public street, the municipal corporation is not responsible, in the absence of notice, for the unlawful removal of such barriers by third persons. But there is no suggestion in the record in the case 'at bar that any portion of the barrier at Williams’ bridge had thus been removed. Reliance is also placed upon a decision of the General Term in this department, in Reed v. The Mayor (31 Hun, 311), to the effect that an ordinance requiring the removal of snow and ice from sidewalks entitled the city to expect that the duty would be performed by the owners or occupants of the adjacent property, and it is argued that the covenant of the contractor in this case, to place sufficient guards upon the roadway defines his duty towards the city, just as the duty of the property owner was defined by the ordinance in regard to ice; so that the defendants could properly rely upon the expectation that the contractor would erect all requisite barriers. As to this argument, it is sufficient to say that, although what purports to be a provision from the contract, providing for the erection of proper guards by the contractor, is set out in the respondents’ brief, the contract itself nowhere appears in the record, and does not seem to have been offered in evidence. It is, therefore, unnecessary to pass upon the effect of such a covenant, even if the contract contained one.

The case was carefully and correctly tried, with the exception of the erroneous instructions which have been considered in respect to the necessity of notice of the absence of suitable barriers as a condition precedent to a recovery against the city. We are not able to say that error on so important a point may not have misled the jury. For this reason a new trial must be directed, unless the defendants are right in their assertion, that they are relieved from all liability whatever because the accident happened within the territorial limits of the county of Westchester, on a public highway whereon the city of New York had no authority to place barriers. The position of the city is that its obligation to erect barriers, when they are necessary, is limited to the New York end of the bridge, while Westchester county alone can lawfully put them up at the extremity on the other side of the Bronx river. This position is not tenable. The statute requires both municipalities to build, maintain and keep in repair the public bridges over that stream. The duty thus imposed relates to the whole of each structure, so far as the public are concerned, and carries with it the authority to do whatever is necessary to the proper discharge of that duty. In a cáse like the present, the erection of a suitable barricade was essential, and both municipalities, or either, if the other neglected to act with it, might rightfully put up the barriers wherever they were needed, to afford reasonable protection to the public.

Furthermore, the record leaves no doubt that such barrier as was erected in the present case was put up by a contractor jointly employed by both. The case is not like that of Carpenter v. City of Cohoes (81 N. Y., 21), whore the bridge'belonged to the State, and the city was charged by law with no duty in respect to it. Even here it was held that the roadway which constituted the approach to the bridge, was constructively a part of the bridge itself, and there is no reason why the Westchester approach to Williams’ bridge should not be regarded in the same light, so far as the obligation to provide suitable barriers is concerned. (See, also, Hayes v. N. Y. C. & H. R. R. R. Co., 9 Hun, 63.)

In Theall v. Yonkers (21 Hun, 265), the injury was sustained on the East Chester end of a bridge between East Chester and Yonkers, maintained by both the town and the city, and the court declared that, by reason of the place where the accident happened, the city was not liable. The expression of this opinion, however, does not seem to have been necessary to the decision, and, furthermore, it is apparently based upon the view that under the general statute relating to bridges between towns (Laws of 1841, chap. 225), the duty of each town to maintain the bridge does not extend beyond its own limits. We construe the special statute applicable to this case differently.

The judgment will be reversed and a new trial granted, with costs to abide the event.

Yan Brunt, P J., and Lawrence, J., concurred.

Judgment reversed, new trial granted, costs to abide the event.


source: Caselaw Access Project

author: Maoomber, J.:

license: Public Domain

text:
    GEORGE F. HECKER and JOHN VINCENT, Executors and Trustees, etc., of JOHN McKEON, Deceased, Plaintiffs, v. WILLIAM J. SEXTON and Others, Defendants.

      Appointment of a guardian ad litem for an infant defendant— appointment of one having an interest adverse to that of the infant — Rule of Supreme Court No 49 — an appointment in violation of such rule will be set aside on the motion of any party or person interested

    In this action, brought by the plaintiffs, Hecker and Vincent, as executors and trustees of one McKeon, to foreclose a mortgage, the plaintiff Vincent, who was the general guardian of an infant defendant who owned an undivided one-half of the mortgaged premises, was upon his own petition appointed to act as the guardian ad litem, of the infant, no mention being made in the petition of the fact that he was the same John Vincent mentioned in the title of the action as one of the plaintiffs

      Held, that as the duty of Vincent as one of the plaintiffs, and his duty as guardian ad litem were wholly inconsistent and incompatible, and could not, with any propriety, be exercised together, and as his appointment was a direct violation of the Rule 49 of the Supreme Court, it was something more than a mere irregularity in practice
    That even if it were not absolutely void, so as to. render it assailable collaterally, in any future judicial proceedings, yet it was so far voidable as to enable any party to the action or any person interested therein, as, for instance, a purchaser at a foreclosure sale, to raise the objection by motion, and to call upon the court to undo the inadvertent act into which it fell through the concealment by one of the parties.
    That the person who had bought the premises upon the sale under the judgment entered in this action should be relieved from the purchase, and the referee be required to pay bach to him the money already paid m, leaving the plaintiffs to proceed as they mignt be advised.

      Appeal from an order denying a motion made by Antonio Cuneo, who was not a party to the action, to be relieved from a purchase made by him at a sale under a judgment of foreclosure entered herein.

      E. Ell&ry Anderson, for the purchaser.

      Ira Shafer, for the plaintiffs, opposed.
   Maoomber, J.:

One of the grounds for the claim of the appellant is, that the amount of land purchased at the sale was nine inches less in front on Baxter street than it was represented by the referee at the sale to be. The affidavit of the attorney for the appellant states that on th'e 14th day of September, 1885, which was two weeks after the sale and the payment by the appellant of ten per cent of the amount of the bid, he raised this objection before the referee, as a reason why his client should not fulfill the terms of the bid. It seems to have been assumed by both parties, as weli as by the learned judge at the Special Term, that there was proof upon the motion to the effect that the land was in fact short, by this number of inches, of the amount which it was represented to be at the sale. This assumption, however, is a mistake of fact, for upon an inspection of the printed case it is found, that there is not any allegation whatever that the referee made any representation at the sale concerning the amount of property. On the contrary, the notice of sale which describes, it is true, the width on Baxter street as thirty-six feet and two inches, contains the following qualifications, namely: “ Thence southerly along Baxter street aforesaid, formerly_Orange street, thirty-six feet and two inches, to the place of beginning, be the said dimensions more or less, etc.”

The purchaser was not deceived by anything done by the parties at or before the sale, and he could not have been misled by the description contained in the notice of sale, inasmuch as it indicated that there might be some slight discrepancy in the courses and distances which the description of the premises contained.

The other ground for relief is that John Vincent, one of the plaintiffs, as well as one of the defendants, was appointed in the foreclosure suit guardian ad'litem of John R. S. Kein, an infant defendant, when his interest as plaintiff was clearly adverse to the interest of the infant. Mr. Yincent is one of the trustees of the last will and testament of John MeKeon, deceased, and is one of the plaintiffs in the action. He is also general guardian of the infant. He was made a party defendant as such general guardian.

His duty as executor and trustee of the will required him to bring an action to foreclose the mortgage against the infant whose interest in the land consisted of an undivided one-half of the premises. His duty, therefore, as plaintiff, against one of the principal defendants, and his duty as guardian ad litem, were wholy inconsistent and incompatible, and could not, with any propriety whatever, be exercised together. The order making this appointment was doubtless made through inadvertence, the judge being probably misled by the failure of Yincent, in his petition for his own appointment as guardian ad litem, to mention the fact that he was the same John Yincent mentioned in the title of the action as one of the plaintiffs. Had such fact appeared before the judge, this order, doubtless, never would have had an existence.

Rule 49 of the Supreme Court is as follows: “No person shall be appointed guardian ad litem, either on the application of the infant or otherwise, unless he be the general guardian of such infant, or is fully competent to understand and protect the rights of the infant and has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party.”

This rule was made under and in pursuance of the Code of Civil Procedure, section 17 of which declares that the convention of judges “ must establish rules of practice not inconsistent with this act, which shall be binding upon all courts of record, except the court for the trial of impeachments and the Court of Appeals.” This rule, in my judgment, rendered the appointment of Mr. Yin-cent as guardian ad litem in this action something more than a mere irregularity in practice. Even if not absolutely void, so as to render it assailable collaterally in any future judicial proceeding, yet it is so far voidable as to enable any party to the action or any person interested therein, as, for instance, a purchaser at a foreclosure sale, to raise the objection to it by motion, and to call upon the court to undo the inadvertence which it fell into through the concealment of one of the parties.

I am of the opinion that any person actually interested in a pecuniary way in having a clear and unassailable judgment record as the foundation of his title to real estate, has the right to object, if done seasonably as has been done by this purchaser, to a judicial proceeding prohibited by the general rules of practice. Indeed, outside of rule 49, and through the inherent power of the court to preserve an appearance of fairness and justice in all of its proceedings, the appointment as guardian ad litem of an adverse party would not be tolerated, and if done would be undone before the rights of third parties had intervened.

The question is not whether any injury has heen wrought in this particular case. There probably has not been, though of that thing no one can be sure, because the infant has not yet been heard. It is to enable him to be heard effectively that his mouth-piece should not be the adverse party. Who, on reading the judgment-roll in this action, and not seeking information outside of its wrapper, would not believe that the court had been deceived into doing a great injustice to the infant defendant? One who .buys at a judicial sale may demand a title free from any reasonable doubt, as a condition precedent to the completion of his purchase. (Rice v. Barrett, 102 N. Y., 162.)

Suppose the infant to be dispossessed of this land by virtue of this sale. Could the purchaser, with his present knowledge of the facts, successfully resist an action instituted by the infant to protect his legal rights ? I think not. While possibly the court acquired jurisdiction of the infant sufficiently to give a good title to a purchaser who had no knowledge or notice of the facts (but of this I am doubtful), yet this purchaser, with the information acquired by him subsequently to his bid, through the diligence of counsel, could not resist the claims of the infant that he had not yet had his day in court.

The purchaser should be relieved from the purchase, and the referee be required to pay back to him the money already paid in, leaving the plaintiffs to proceed as they may be advised.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted.

Daniels, J., concurred; Brady, J., concurred in the result.

Order reversed, with ten dollars costs and disbursements, and motion granted.


author: Daniels, J.:

text:
    In the Matter of the Petition of FRANCIS WILLARD BREWER, that his Accounts, as Trustee, be Passed, and for Other Relief.

      Trustee of a mas'S'ied woman — Tie is to decide whether or not to grant an application to convey the trust property to Ties', made under section 2 of chapter 375 of 1849 — a trustee appointed to S'eceive rents and profits of s'eal estate may permit the beneficiary to occupy the premises- — -to entitle a trustee to apply to the court for dis'ections thes'e must be some doubt or obscus’ity as to the trust.

    Upon tlie hearing of an application made by the petitioner, as the trustee of a trust created by one James F Penniman, deceased, for the benefit of his daughter in law, it appeared that the petitioner and his predecessor in office had permitted the appellant, who was entitled by the terms of the trust to receive, during the term of her natural life, the rents, issues and profits of a dwelling-house conveyed to the trustee, to occupy the premises with her husband and children from the time the trust was created to .1 anuary, 1884, when this proceeding was commenced by ihe presentation of a petition asking for the passing of his accounts and for instructions as to what it was proper for him to do in the management of the trust, and as to his duty concerning the possession of the trust estate, and for other relief

      Held, that as the trustee had paid out nothing in the administration of his trust, and had received none of the proceeds of the property, there was no foundation for any accounting between himself and the beneficiary
    The beneficiary, a married woman, having obtained from a justice of the Supreme Court a certificate that he had examined the condition and situation of the property, and made due inquiries into her capacity to manage and control the same, presented to her trustee a written request, as provided in section 2 of chapter 375 of 1849, to convey to her the said premises for her sole and separate use. By the terms of the trust, the property was to be conveyed, on the death of the appellant, to such person as she might, by will, appoint, and, in default of such appointment, to her heirs The trustee refused to make the conveyance.

      Held, that even if the statute should be held to include a trust of this description, it imposed no duty or obligation upon the trustee to convey the property, but merely authorized him to convey or not, as he might deem best, without requiring him to assign any reason for his determination, and that it did not entitle him to apply to the court for instructions as to what he should do.
    The law does not permit a trustee to institute proceedings in equity to ask the advice or direction of the court, where the power has been wholly and plainly confided to him, and the decision of the question as to what he should or should not do has been left to him to decide in his discretion.
    To entitle him to apply to the court for directions, there must be at least some obscurity or doubt in the case, which the trustee may not safely or correctly solve

      That, under the trust created in this case, he could himself rent the property and receive and dispose of the rents, as that was directed therein, or permit the beneficiary to enjoy such rents by having the occupancy and use of the property itself.
    That as there was no obscurity in the language employed to create the trust, or to define his powers and duties, there was no ground for doubt and no necessity for applying to the court for directions to be given to him concerning the execution of the trust, as it was for him and not for the court to decide what he would do with the property, for the purpose of realizing and applying its proceeds in execution of the trust
    That the fact that the beneficiary had allowed the taxes and water rates to remain unpaid for several years, and had refused to pass over to him receipts and vouchers which she had obtained upon preceding payments, created no necessity for the application, as the trustee, for any cause or without any cause, had authority to possess himself of the property and administer the trust as provided in the deed.
    That the facts proved did not entitle the petitioner, under the rule defining the jurisdiction of the courts of equity in this respect, to institute and maintain this proceeding at the expense of the estate.
    Appeal by Mary Elizabeth Penniman from an order confirming the report of a referee, and containing further directions concerning the administration of a trust in real estate, and from an order directing a reference to take proof of and report the expenses incurred in the proceeding which resulted in the first order.
    The beneficiary, a married woman, having obtained from a justice of the Supreme Court a certificate that he had examined the condition and situation of the property, and made due inquiries into her capacity to manage and control the same, presented to her trustee a written request, as provided for in section 2 of chapter 375 of 18é9, to convey to her the said premises for her sole and separate use.

      Joseph R. Choate and Jesse K. Furlong, for the appellant, Mary Elizabeth Penniman.

      W. R. L. Lee, for the petitioner and respondent.
   Daniels, J.:

The appellant is the daughter of the late Gardner Brown. She intermarried with George H. Penniman, the son of James E. Penniman, deceased. He conveyed to Gardner Brown a lot of land with a dwelling-house thereon known as 536 Fifth avenue, in trust for the support and maintenance of the appellant during her life. While this trustee was living she was permitted to occupy the premises with her husband and children, and in that manner to enjoy the benefit and advantage of the trust estate. At his decease he left a will appointing the petitioner, who was his nephew, the trustee of the trust created, in this estate. That appointment was made pursuant to authority provided for that purpose in the trust deed, and it was afterwards ratified and confirmed upon an application to the court, and the petitioner afterwards permitted the beneficiary to occupy and enjoy the property, as that had been done by her during the lifetime of her father. This use and occupancy of the property continued to the month of January, 1884, when the petition was presented, which was the foundation of this proceeding. By this petition the trustee asked for the passing of his accounts and for instructions as to what it was proper for him to do in the management of the trust, and as to his duty concerning the possession of the trust estate, and for other relief. The petition was answered by the beneficiary and a reference was ordered to a referee to take proof concerning the allegations contained in the petition, and to report as to what should be done upon the petitioner’s application. Proof at very considerable length was taken before the referee under this order and a report made by him, with a statement of the facts he deemed to have been proved, upon which the order was made from which the first appeal was brought.

On the hearing before the referee, as well as before the court, it was insisted in behalf of the beneficiary that upon the facts appearing by the evidence the petitioner had no ground for his application. That, however, was overruled, and the same objections have been urged to support the appeal. And as to the first part of the petioner’s application the objections were well founded. Por as he had paid out nothing in the administration of his trust and had received none of the proceeds of the property, there was no foundation for any accounting between himself and the beneficiary. The application accordingly resolved itself into one for the advice and direction of the court as to what he should do with the trust estate, and whether he should convey it over to the beneficiary under a certificate obtained by her from a justice of this court pursuant to section 2 of chapter 375 of the Laws of 1849.

She had applied to him for such a conveyance, but he had not agreed to the propriety of the application, or consented in any form to the conveyance of the property to her. And as this statute was framed it was entirely and clearly optional with him, whether he would comply with the certificate and request, even if the statute should be held to include a trust of this description. For the statute has imposed no duty or obligation upon the trustee, but it has merely permitted him to convey the property when the case may be within the statute, and the certificate of a justice of the court has been obtained. The language of the act is, that the trustee may convey to such married women by deed, or otherwise, all or any portion of such property, or the rents," issues, or profit thereof, for her sole and separate use and "benefit. It is as plainly permissive as language could well express its intention to be, and there was accord ingly no reason or necessity for an application on his part to the court to know what'his duty was in the premises. The statute provided for no such proceeding, but it delegated the authority, wholly and exclusively, to himself, and it was for him to determine whether he would make the conveyance or not. He was not bound to assign any reason for his refusal. It might be entirely arbitrary, but when made it would be conclusive upon the- beneficiary. There was no cause, therefore, for him to ask the court what he should do under the circumstances presented, for it was not for the court to decide, but the decision was to be made wholly by himself. And the law does not permit a trustee to institute proceedings in equity to ask the advice or direction of the court, where the power has been wholly and plainly confided to the trustee, and it rests exclusively in his discretion as to what he should or should not do. The rule, on the contrary, is that it is in cases of doubt as to what the law is, and what their conduct ought to be under it, that trustees are entitled to instruction and direction from the court. (2 Perry on Trusts [2d ed.] §§ 476a and 928.) There must be at least some obscurity, or doubt in the case which the trustee himself may not safely or correctly solve, to entitle him to apply to the court for directions. As much as that is required by this legal principle, and also by the cases of, Petition of Baptist Church etc. (51 N. H. 424,); Methodist Episcopal Society v. Heirs of Harryman (54 N. H., 444); 2 Pom. Eq. Jur. (sec. 1064); Hill on Trustees ([3d Am. ed.], 812, 813); Woodruff v. Cook (47 Barb., 304, 310).

By the trust deed, the consideration for which was in a large part paid by the father of the beneficiary, the property was conveyed to the ti’ustee to receive the rents, profits and income thereof, and apply the same, after paying all assessments, taxes, insurance and repairs upon said premises, to the use of Mary Elizabeth Benniman, wife of George H. Penniman, merchant, of the city of New York, during her natural life, or until the above described and granted premises shall be sold and conveyed, as hereinafter provided for, and upon the death of the said Mary Elizabeth Penniman to grant and convey the said premises to such person or persons, and in such manner as she shall, by her last will and testament or appointment in the nature of a will, executed in the presence of two or more witnesses, direct and appoint, and in default of such will or appointment, to grant and convey said prem ises, upon the death of the said Mary Elizabeth Penniman, to her heirs-at-law. And it was under this deed that the trust was to be administered. It was entirely plain in its directions, and created a trust as that was provided for by the statute of this State. And by the trust so created the trustee was empowered, and it was made his duty, to receive the rents, profits and income of the estate and apply them, after paying assessments, taxes, insurance and repairs, to the use of the beneficiary during her natural life, or until the premises should be sold and conveyed pursuant to authority contained after-wards in the deed for that purpose. There was no ambiguity in the language describing the office, functions and authority of the trustee, and under the trust as it was created he could himself rent the property, receive and dispose of the rents .as that was directed, or permit the beneficiary to enjoy such rents by having the occupancy and use of the property itself. Whether he would do the latter, however, was wholly optional on his part, as much so as it was under the statute before referred to, whether he would convey the property upon the certificate of the judge, and in that manner allow the beneficiary to enjoy its rents, issues and profits.

If he did not elect to permit her to have the use and enjoyment of the property in this manner, he had the unqualified authority to take possession of the property himself and rent it, and out of the rents administer and execute the trust. There was no obscurity in the language employed for the creation of the trust, or to define the duties and authority of the trustee. And there was accordingly no ground for doubt and no necessity for applying to the court for directions ¿o be given to him concerning the execution of the trust, but it was for himself, and not for the court, to decide what he would do with the property for the purpose of realizing and applying its proceeds in the execution of the trust. No case of doubt was presented and no occasion disclosed creating the least necessity, or propriety for this application to be made to the court.

In justification of it, it was stated that the beneficiary had allowed the taxes to remain unpaid for the years 1880, 1881, 1883, and the Croton water rates for the year 1881, and that she had neglected and refused to pass over to him the receipts and vouchers which she had obtained upon preceding payments. But these facts created no necessity for the application made by him, for the trustee for any cause, or without any cause, had the authority under the deed to possess himself of the property and administer the trust as that was directed in the deed. If he became dissatisfied with her possession and management of the property, he could at once dispossess her and take that management and control in his own hands. It was not requisite that he should have any advice or assistance from the court upon this subject, but it was for himself to decide under the circumstances what lie would do, and to govern his action according to his own conclusions. As to the vouchers received by the beneficiary for the payments made by her there seems to be no ground upon which he could legally claim their delivery. They were her vouchers for what she had paid to relieve the property from liens and charges, not what had been paid in any manner by the action or instrumentality of the trustee. And there seems, therefore, to be no reason why she should have been required to surrender these vouchers to the petitioner.

That his conduct in instituting this proceeding was unjustifiable appears further from the fact stated in his petition, that he had consulted and secured the advice of counsel. And upon so plain a case as this was in all its features there could be no risk or hazard whatever in even a timid trustee acting upon that advice, so far as it- followed the plain language of the statute, and that employed in the creation and declaration of the trust. And if it failed to follow that language, then, as an intelligent, experienced man the trustee himself was entirely competent to determine upon what he should do by consulting the deed itself and considering the language of the statute relating to her application to him for a conveyance of the title. This he appears to have done when he was applied to for a portion of the principal of another trust created by the will of the father of the beneficiary.. Which, in like manner, confided the propriety of complying with her request for a portion of the principal to the judgment of the trustee. And in the exercise of that judgment he declined very judiciously, as the facts are made to appear, to advance any portion of the capital of the trust to the beneficiary, or to invest a further amount of it in the speculative enterprise which she desired to join. There was no more difficulty in exercising his judgment and following its dictates in the one case than there was m the other, and no more reason to apply, through the intervention of an expensive and complicated proceeding to the court for its advice or direction.

If the petitioner concluded - to possess himself of the trust estate and administer the trust himself, either because the beneficiary had allowed the taxes and water rents to remain unpaid, or for any other reason, he was invested with the complete right to do so. And if she declined to surrender the possession of the property to him, his remedy for its recovery was not by the petition presented to the court in this proceeding, but by an action of ejectment. For this object the petition was entirely abortive, and the facts proved upon the hearing before the referee did not entitle the petitioner, under the rule defining the jurisdiction of courts of equity in this respect, to institute and maintain this proceeding at the expense of this estate. For whatever expense may attend it, it was the expectation and purpose to charge that upon the rents and profits of this estate. And to make that charge effectual was the object of the second application made to the court and the order of reference entered in pursuance of it. The expenses attending the first proceeding, directly and indirectly, are stated in an account accompanying the petition to amount to the sum of $1,491.94, and that it is proposed shall now be charged upon and paid out of the rents and profits of this property. The expense has been incurred for no benefit whatever to the estate, or to the trustee himself, except possibly what he may-have incurred to counsel for advice given to him concerning his authority over the trust estate and which does not specifically appear in this account. Whatever that may be will become the subject of a settlement hereafter to be made of his administration of the trust. It is not necessarily connected with this second proceeding, the object of which is to charge the expenses of the useless investigation which has taken place upon the proceeds of this property. The law expects, as the testator undoubtedly did, and the court did in making this selection of a trustee, that he would exercise his judgment, intelligence and experience for the benefit of the estate and to protect it from useless and unnecessary legal proceedings and expenses. That was his duty, and whatever he might. do in the discharge of that duty, would be favorably considered by the courts. But to allow a trustee to institute and carry on at a large expense what appears to be an unnecessary and useless proceeding, is more than the courts have been disposed to permit, even in the great indulgence extended to persons acting in these capacities. The trustee may very well have become annoyed and perhaps exasperated by the conduct and letters of the beneficiary, but at the same time he should not have permitted this feeling to have swayed or affected his judgment, or induced legal proceedings on his part for which there was neither necessity nor propriety. To a certain extent she may have been equally in fault with himself. She should not have permitted the taxes and water rents to run in arrear, but they should have been promptly paid as they matured. And whatever information the trustee desired to obtain from her and she was able to communicate, should have been readily furnished to him, so that he could, have seen at once the manner in which the trust estate was being managed, and that it was safely preserved for the children who would become entitled to it in remainder. That she failed to give, and perhaps under all the circumstances, although the proceeding was not authorized, the best that can be done with it will be to modify the first order, directing the referee’s report to be confirmed without costs to either party, so far as it is declaratory of his right of possession, and sustains his refusal to convey the property to her, and reversing the order from which the second appeal has been taken wi£h costs.

Bartlett, J., concurred.

Order confirming referee’s report modified as directed in opinion, without costs, and order directing reference, etc., reversed with costs-


text:
    JAMES LYNCH, late Sheriff, etc., Plaintiff, v. BENJAMIN F. BUTLER, Defendant.

      Fees of a sheriff on attaching property — the judge has no power to allow compensation for unperformed, services — Code of Procedure, sea 243
    An attachment, issued m this action in November, 1864, was served upon the assistant treasurer of the United States and two other persons by delivering a copy of it to them, with a notice stating that the sheriff attached all property, debts, credits, etc., of the defendant in their possession or under their control No property of the defendant was at that time in the hands of either of the said persons, except that there was then on deposit with the sub-treasurer to the credit of the defendant, as major-general commanding, certain moiieys which he claimed were public moneys. In February, 1866, the suit was settled by the delivery of $50,000 in gold certificates to the plaintiff in the attachment, which were shown to have represented the money so deposited to the credit of the defendant, and an order was entered discontinuing the action, upon a stipulation agreeing that this should be done without costs to either party, except that the legal fees of the sheriff should be paid by the defendant.
    Thereafter an order was made by a judge of the court adjusting and settling the fees of the sheriff at $885 87, of which amount the sum of seven dollars and sixty two cents was allowed for fees to which the sheriff was legally entitled, and the sum of $878.25 was allowed " as reasonable and proper for his trouble and expenses in, and all his services in the premises ’’
    In an action, brought by the sheriff to recover the fees so allowed, it was.

      Held, that the fees of the sheriff were to be determined by section 243 of the Code of Procedure, as it was enacted in 1849, which provided for the recovery by the sheriff of fees and also of compensation for any further services which he might render in taking, possession of and preserving the property.
    That as in this case no additional services were rendered by the officer, and as no property was, as a matter of fact, attached or taken into the possession of, or preserved by, the sheriff, the judge had no jurisdiction to allow the sheriff compensation for such unperformed services,

      Birkheck v. Stafford (14 Abb Pr., 285) distinguished,
    Motion by the defendant for a new trial bn exceptions ordered to be heard in the first instance at the General Term, after a verdict had been directed for the plaintiff.
    This action was brought by the plaintiff to recover the fees alleged to be due to him, and which had been adjudged and settled and allowed as bis fees under an attachment, issued in an action brought against the defendant in the above entitled action.

      Henry Thompson and James JR. Oumvng, for the plaintiff.

      John E. Hevelm, for the defendant.
   Daniels, J.:

The verdict was directed for the plaintiff for the sum of $885.87, with interest thereon from the 7th of November, 1886. It was fear the fees and compensation allowed to the plaintiff upon an attachment issued to him against the property of the defendant. The attachment was issued on the 11th of November, 1864, and, according to the testimony of the person having it in charge under the sheriff, it was not otherwise served than by delivering a copy of it, with a notice stating that the sheriff attached all property, debts, credits and effects, and all rights and shares of stock, with all interest and profits thereon and all dividends therefrom, of the defendant in the possession or under the control'of J. A. Stewart, assistant treasurer of the United States government, and upon McCombey & Child, of No. 11 Water street, and on Gideon J. Tucker, the surrogate of the county of New York. These copies were so served during the first half of the month of November, 1864, and while a certificate was required to be furnished by the persons on whom the service was made of any rights, shares, debts or other property of the defendant incapable of manual delivery, no such certificate, as a matter of fact, appears to have been obtained by the sheriff, but the services under the attachment were completed by the delivery of these copies with the notice upon the persons served. The defendant, whose testimony was not contradicted, testified that he had no property in the hands of the assistant treasurer, or of the surrogate of the county of New York, at or after the time when the attachment was in this manner served, and it was not contended that he had any property whatever in the possession or under the control of McCombey & Child. His testimony was further to the effect that moneys were on deposit with the sub-treasurer, at the city of New York, to the credit of the defendant, but that these were public moneys which were placed at his disposal as commander of the troops of the United States, and which he was empowered to use only in the public business ; that it was not his money at all, but stood in his name as major-general commanding.

In February, 1866, the suit was settled by the delivery of $50,000 in gold certificates to the counsel for the plaintiff. These certificates were shown to have represented this sum of money appropriated by the defendant while he was in charge, as an officer of the army, of the city of New Orleans. The assets of the bank were taken possession of by him, but were afterwards returned, and upon information being received that there were two kegs of specie which had been bricked behind the safe, in the wall of the bank, just before the United States troops arrived in New Orleans, he ordered the wall to be opened and the specie removed. That was done apparently upon the claim that the money was forfeited to the United States, and it remained under the custody of the war department until a claim was made for it by the plaintiff, and the defendant applied for instructions requesting the department to take the burden of the suit, and indemnify him, or to authorize him to settle it. And irpon a representation being made that the plaintiff had been a loyal man, the department declined to interfere, leaving the defendant to take care of himself, and he then delivered the gold certificates in satisfaction of the right of action. The suit was thereupon discontinued without costs to either party, except that the legal fees of the sheriff were to be paid by the defendant, and an order of discontinuance to that effect was entered. After that an application was made to the judge who issued the attachment to adjust and settle the fees of the sheriff and his compensation for services under the attachment. It was conceded that the sheriff was entitled to the sum of seven dollars and sixty two cents for his fees, and the judge added such a sum to the amount as made the total $885.87, which he certified and allowed, “ as reasonable and proper for his trouble and expenses in, and all his services in the premises.” This certificate was held to be conclusive against the defendant on the trial, inasmuch as his counsel was heard before the judge at the time when the adjustment took place. The case of Birkbeck v. Stafford (14 Abb. Pr. 285,) was followed as sustaining this conclusion.

But in that case it did appear that the sheriff had taken property into his possession under the attachment, and the officer consequently had facts before him upon which he could justly make an allowance by way of compensation beyond the fees for the service of the attachment, while'in this case it does not appear that any proof of that fact was submitted to the judge. It appears, on the contrary, that the proof acted upon consisted only of an affidavit of the same person who was sworn as a witness upon the trial, describing in his evidence the services rendered by him under this attachment. And as there is no recital in the order to the contrary, it may be assumed that the witness stated no more in that affidavit than he did in his evidence given upon the trial. And it could not accordingly have appeared before the judge that any moi'e had been done under the attachment than to make the service of these three certified copies. The order or allowance of the judge does not profess to award to the sheriff anything by way of compensation for taking possession of or holding any property, and it contains nothing inconsistent with the construction that the allowance was made for the services alone which this witness described and detailed as having been rendered under the attachment. For those services, specified fees were provided by law. At the time when they were rendered and the right of the sheriff to fees for the services accrued, section 243, of the Code of Procedure, as it was enacted in 1849 was in force, and that provided that the sheriff should be entitled for services under the attachment to the same fees and compensation, and the same disbursements, as were allowed by law for like services and disbursements under the provisions of chapter 5, title 1 and part 2 of the Revised Statutes. This obviously related to so much of chapter 5 as prescribed the duties of the sheriff under attachments against absconding, concealed and non-resident debtors. And by the provisions of the statute prescribing the fees for those services, they were particularly designated, and, in addition to that, it was further declared that the officer should be allowed such additional compensation for his trouble and expenses in taking possession of and preserving the property attached, as the officer issuing the warrant shall certify to be reasonable.” (3 R. S. [6th ed.] 914, sub. 10, § 35.)

This subdivision of the statute distinguishes between the services performed in the service of the attachment itself, and in taking possession of and preserving the property attached. And so did section 243 of the Code of Procedure, for that provided for the recovery by the sheriff of fees, and also of compensation for the further services which he might render. In the present instance no such additional services were rendered by the officer, for no property as a matter of fact, was attached, neither was any taken possession of, or preserved by him, and it is to be presumed, from the evidence of the witness who served the attachment, that no proof could have been submitted to the judge establishing the fact that property was attached, or taken possession of by the sheriff. Neither does the certificate of the judge recite, or in any manner refer to, the fact that any such proof had been produced, and in its-absence the judge had no jurisdiction whatever to allow to the sheriff compensation for such an unperformed service. To supply' jurisdiction over this subject, some proof was required to be given,, indicating the fact to be that .property had been seized under the-attachment and taken possession of by the officer, for as much as-that is requisite to supply jurisdiction in proceedings of a judicial character. (Staples v. Fairchild, 3 Comst. 41, 46.) And whether jurisdiction over the subject matter has been acquired is a fact-which may be inquired into in any court, where the proceedings-are relied upon and brought up for further consideration and action. ( Craig v. Andes, 93 N. Y., 405, 410.)

The judge could not arbitrarily make this allowance to the plaintiff, he could do so only under the authority of the law. This authority was contained in the section of the Code of Procedure-which has already been mentioned, for the services were rendered and completed before the amendment of 1865 was adopted, allowing' the sheriff poundage on the amount -where a settlement of the suit should take place. Besides this, the allowance of poundage was no-part of the* order of adjustment of the judge, and was not a matter committed to his authority, by the amendment of 1849, but what he had, and all that he had authority over, was the compensation to be allowed for taking possession of and preserving property attached. And as none had been attached, the sheriff was entitled only to the fees prescribed by law, for the services which he rendered, and the law governing those fees was this section of the Code which has been mentioned. (Supervisors, etc., v. Briggs, 3 Denio, 173; Porter v. Cobb, 25 Hun, 184; Woodruff v. Fire Ins. Co., 90 N. Y., 521.) Beyond that, the stipulation upon which the action was discontinued and the order following it, obligated the defendant to pay no more than “ the- legal fees of the sheriff, ’ This was the extent of the liability entered into by him, and the adjustment made in favor of the sheriff by the judge could impose no further liability upon him. Both the stipulation, and the order following it, have been expressed in such terms as to indicate a design to exclude compensation for taking possession of and preserving property attached, by restricting the amount to be paid to the legal fees. These are significant terms, and indicate the copapensation to be received by the sheriff to be the fees for the services actually rendered by him, excluding the idea of compensation for taking possession of or preserving attached property And they are to be construed and applied, in view of the circum stances existing at the time when these parties employed them. Knapp v. Warner, 57 N. Y., 668; Coleman v. Beach, 97 N Y, 545 )

They are to be assumed, therefore, to have been employed by the parties, with the knowledge of the. fact that the extent of the sheriff’s services was the delivery of these three copies of the .attachment. And with that understanding it could not have been intended on either side that the defendant, by the employment of these words, should subject himself to more than the payment of the fees of the sheriff for making the service which he did of the attachment. The language used, too, had peculiar legal significance, and when legal terms are employed in an agreement they are to be construed, where the contrary does not appear to have been the design, to be expressive only of their legal significance. (2 Parsons on Contracts [6th ed.] 198.) The obligation of the defendant was not to pay what might be certified by way of compensation by the judge, but to pay only the legal fees of the sheriff. His legal fees, so far as he rendered services, were agreed to at seven dollars and sixty-two cents, and as they could amount in no view to more than that, this, with interest, was the limit of the defendant’s liability in the action. Neither of the authorities collected and cited in favor of the plaintiff sustains any further or additional liability of the defendant under this stipulation and order.

The verdict should, therefore, be set aside and a new trial ordered, with costs to abide the event.

Van Beunt, P. J., and Beady, j., concurred.

Verdict set aside, new trial ordered, costs to abide event.


author: Yan Brunt, P. J.:

text:
    THE POROUS PLASTER COMPANY OF THE VILLAGE OF SING SING, Appellant, v. GEORGE J. SEABURY and ROBERT W. JOHNSON, Respondents.

      Practice — an action to procure equitable relief cannot be maintained, when the relief sought has already been awarded by a judgment in another action between the same pa/rties — a demurrer will not, however, be sustained if the facts show a right to legal relief— Code of Civil Pro., sec. 488 — damages occasioned by the violation of an injunction may be recovered by action or in proceedings for contempt, at the election of the party injured.

    In an action brought by the-plaintiff in this action against the defendants herein, a judgment was entered, in 1874, establishing the existence of the trade-mark mentioned in the complaint in the present action, and the plaintiff’s title thereto, and perpetually enjoining the defendants from violating the trademark. The complaint in the present action alleged the existence of the trade-mark and its ownership by the plaintiff, the recovery of the judgment and the violation of its provisions by the defendants after the entry thereof, whereby the plaintiff had sustained damages, and prayed for an injunction enjoining the defendants from violating the trade-mark and for the recovery of the damages sustained.

      Held, that the court erred in sustaining a demurrer to the complaint interposed by the defendants, upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
    That while the action could not be maintained in so far as the plaintiff sought to obtain equitable relief similar to that already obtained in the former action, yet it could be maintained as an action at law to recover the damages which the plaintiff had sustained by reason of the subsequent trespasses upon its rights committed by the defendants.
    That the fact that the plaintiff might have treated the defendants’ acts as a violation of the injunction, and have instituted proceedings to punish them for contempt, in which the damages sustained would have been included in the fine, did not prevent it from maintaining this action, as the proceeding for contempt was not intended to be in any way a substitute for the right to proceed by action, but was intended to be a concurrent remedy.
    That although the pleader in drawing the complaint undoubtedly framed the same for the purpose of obtaining equitable relief, and that was intended to be the gravamen of the action, and although he was not entitled to such relief, yet as the complaint contained allegations which entitled the plaintiff to legal relief, a demurrer thereto would not be sustained.
    Appeal from an interlocutory judgment, entered npon an order sustaining a demurrer to the complaint interposed by the defendants, upon the ground that it did not state facts sufficient to constitute a cause of action.

      Philo Chase, for the appellant.

      John L. Logan, for the respondents.
   Yan Brunt, P. J.:

The difficulty which the plaintiff in this action has encountered is, that .it has alleged too much, and those allegations have undoubtedly, led the court astray in the disposition of the demurrer The plaintiff, having in 1874, in an action wherein the present plaintiff was plaintiff, and the present defendants were defendants, established the fact of the existence of the trade-mark mentioued in the complaint herein, and having established its title thereto, and having obtained an injunction in that action against the defendants, perpetually enjoining them from a violation of such trade-mark, could not maintain another action to obtain similar equitable relief based upon the same-trade mark, and the same proprietary right therein, and the complaint in this action, so far as it seeks to obtain equitable relief, would, therefore, have been the subject of demurrer, had it not also contained suitable allegations and a demand for legal relief. The plaintiff in this action, in case of a violation of its rights in and to the trade-mark mentioned in the complaint, subsequent to the action first mentioned, had the right to recover by action, the damages which it should sustain by reason of these subsequent tresspasses upon its rights. It may be true that it also had a remedy by contempt proceedings, for the violation of the injunction contained in the previous decree, but there is nothing in the Code which restricts a party from maintaining an action for every violation of a right which occurs subsequent to the previous recovery, which violation is separate and distinct in itself. As far as the subsequent violations by the defendants of the plaintiff’s trade-mark were concerned, the previous judgment between the parties established only two things, namely, that the device was a trade-mark, and that the plaintiff was the owner thereof. The plaintiff in that action was compelled to prove all the damages which had been sustained by violation of its rights thus established, prior to the trial thereof. But such judgment was no bar, in case of subsequent and independent violations thereof, to the commencement of an action to enforce its rights, and all that was necessary for the plaintiff to allege in order to entitle it to this relief, was the fact of the trade-mark, its title thereto, that its rights in the trade-mark had been infringed and that it had sustained damage thereby. Upon the trial of such an action, the previous judgment between the parties would conclusively establish the ti’ade-mark and the plaintiff’s title, and the only thing which could be litigated would be the violation of the trade-mark and the damages. Such an action would be simply an action at law and in such an action the plaintiff would be entitled to no equitable relief.

In the case at bar the plaintiff seems 'to have assumed that he would be entitled to some additional equitable relief, and has prayed for such relief as well as for relief for the damages which it has sustained by a subsequent violation of its rights in the trade-mark by the defendants. As has been seen, no equitable relief can be obtained in this action, the plaintiff having exhausted its rights to equitable relief in the previous action, which has gone to judgment, and if the complaint contained no allegations, but those which pertained to the obtaining of equitable relief, the demurrer should be sustained. But the facts alleged in the complaint, if true, entitle the plaintiff to legal relief, namely, to a recovery for any damages which it has sustained by reason of the violation alleged of its rights in the trade-mark in question by the defendants subsequent to the previous judgment.

It may be true that such a violation was a violation of the injunction contained in the previous judgment and subjected the party to contempt proceedings, and the party might be proceeded against for contempt and fined and the damages collected in that way. But there is nothing in the Code which restricts the plaintiff to this form of procedure; and, in fact, the language of section 2284 seems to recognize the fact that actions may be maintained even in those cases where contempt proceedings are authorized by the statute, as it provides that the payment and acceptance of such a fine (referring to a fine in contempt proceedings) constitute a bar to an action by the aggrieved party to recover damages for loss or injury. Unless there had been a right of action to recover damages for loss or injury, which might also be the subject of proceedings for contempt, this provision would have been entirely nugatory, and is, therefore, an express recognition of the fact that the provision for proceedings for contempt was not intended to be in any way a substitute for the right to proceed by action, but was intended to be a concurrent remedy. Although the pleader in drawing his complaint undoubtedly framed the same for the purpose of obtaining equitable relief, and that was intended to be the gravamen of the action; and although the court may be of the opinion that the plaintiff is not entitled to equitable relief, yet the complaint containing allegations which entitle the plaintiff to legal relief, a demurrer will not lie to such complaint.

In the case of Sternberger v. McGovern, (56 N. Y. 12), it was expressly held that where a complaint contained allegations showing that the plaintiff claimed to be entitled to both equitable and legal relief, even though he should fail in obtaining his equitable relief, such failure did not defeat his right to the legal remedy. So, in the case at bar, the plaintiff’s complaint claiming that it was entitled to equitable relief and- also to legal relief by way of damages, the fact that it fails to show a right to equitable relief does not defeat its right to its legal remedy.

We. think, therefore, that the demurrer was not well taken and that the interlocutory judgment should be reversed and the defendants allowed to withdraw their demurrer and answer upon payment of costs.

Potter and Lawrence, J.J., concurred.

Judgment reversed; defendants allowed to withdraw demurrer, and answer on payment of costs.


text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent, v. THE EIGHTH AVENUE RAILROAD COMPANY, Appellant.

      Construction of an act providing for the extension of a street railroad — when it will not be held to relieve the company from the payment of a license fee to the city— the legislature cannot relieve the company from payments required by a contract made between it and the city —1874, chap. 478.
    Before the defendant company was formed an agreement was entered into by its promoters with the city authorities by which permission was given to the associates to construct and maintain a street railroad from Chambers street and West Broadway to the Harlem river, the road to be at first laid to a point at or near Fiftieth street and continued to the Harlem river when required by the common council, the associates agreeing to build and run the railroad in compliance with the directions of the street commissioner, and of the common council, and to pay annually for each car such license as the common council might afterwards determine. Under this agreement, the provisions of which were ratified and confirmed by chapter 140 of 1854, the railroad was in part constructed, and the license fees' prescribed by the common council were paid until 1874, after which time the company refused to pay them, claiming that it had been exonerated from the duty of so doing by the passage of chapter 478 of 1874, entitled “ An act to require the Eighth Avenue Railroad i ompany to extend its railroad route in the city of New York, and to regulate the use and operation of the railroad of said company
    This act required the company to extend its road to the Harlem river, and authorized it to “ use, maintain and operate its i ailroad during the term for which said company was incorporated upon and along the several streets and avenues in the city of New York upon and over which its railroad is now in use and operation, and upon and over such extension, subject only to the provisions of the general railroad act of this State, with its amendments, which shall be applicable to the railroad and extension hereby granted, except as herein provided "

      Held, that it could not be inferred, from the language used in this act, that the legislature intended to relieve the company from the payment of the license fees.
    That if the act could be so construed as to show that the legislature intended to relieve the company from liability to pay the license fees it would be inoperative, as it would violate the provisions of subdivision 1 of section 10 of article 1 of the Constitution of the United States, by impairing the obligations of the contract made with the city, and would also violate section 16 of article 8 of the Constitution of the State of New York requiring that the subject of every private or local bill shall be expressed in its title.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.

      John M. Scribner, for the appellant.

      E. Henry Lacombe, for the respondent.
   Daniels, J.:

The verdict was directed by the court for license fees prescribed and charged for the running and use of street cars on defendant’s railroad in the city of New York, and for interest thereon. Before the company was formed, an agreement was made between two of. its promoters and others, with the city authorities, by which liberty was given to the associates to construct and maintain a street railroad from Chamber street and West Broadway to the Harlem river. The road was first to.be laid to a point at or near Nifty-first street, and after that to be continued to the Harlem river, whenever required by the common council of the city. By the agreement which was then entered into the associates agreed to comply with the direction of the street commissioner and of the common council m the building of the railroad, the running of cars thereon, and in any other matter connected with the regulation of the railroad. And as a part of the terms upon which the agreement was made it was resolved that each of the passenger cars to be used on the road should be annually licensed bj' the mayor, and there should be paid annually for such license such sum as the common council might afterwards determine. The railroad was in part constructed under this agreement after the incorporation of the defendant, and it had secured the rights' and privileges which it provided for. And the common council, by ordinance, prescribed a license fee of twenty-five dollars annually, for each one-horse car, and fifty dollars annually for each of the other cars used and run by the company upon the railroad. These license fees were paid by the defendant until the year 1874, but after that it refused to make any further payments claiming to have been exonerated from the obligation by section 2 of chapter 478 of the Laws of 1874. By this section it was declared that, when the extension required by this act shall be completed and put in operation, said company shall use, maintain and operate its railroad during the term for which said company was incorporated, upon and along the several streets and avenues in the city of New York, upon and over which its railroad is now in use and operation and upon and over such extension, subject only to the provisions of the general railroad act of this State, with its amendments, which shall be applicable to the railroad and extension hereby granted, except as herein provided.”

The preceding section of the act required a change in the terminus of the road from that mentioned in the agreement under which the franchise had, in form at least, been conceded by the authorities of the city. It was not very extended, and may very well have been, as it probably was, prompted by the motive to improve the franchise and railway of the company. But because of this directed change and the language employed in the second section of the act, the defendant insists that it has become exonerated from the obligation mentioned in the agreement under which the railroad, as it was previously operated, had been constructed, from the payment of the license fees.

At the time when the agreement was made the city did not possess the legal right to provide for the construction and operation of the railroad, but by chapter 140 of the Laws of 1854, the agreement was ratified and confirmed by the Legislature. At the time of the passage of this act the railway had, in part, been constructed and where that had been done it was provided by its third section that the grants, licenses and resolutions previously referred to were thereby confirmed. And as this was one of the grants, accompanied by resolutions within the language of the statute, this confirmation included this agreement. . From that time certainly the railroad company, under the agreement and concessions made by the city, had the right to construct, maintain and operate its railroad and the rights and privileges secured to it were in no manner abridged by the act of 1874, but so far as it was declaratory that right was maintained and continued. There was no reason arising out of the antecedent circumstances or the change made by the act of 1874, for relieving the defendant from the payment of these license fees. Neither does its obligation to pay appear to have employed or engaged the attention of the legislature in the consideration or passage of the act of 1874. And it cannot fairly be inferred from the declaration that the company should use, maintain and operate its railroad during the term for which it had been incorporated, subject only to the provisions of the general railroad act of the State with its amendments, which was made applicable to the railroad and the extension at that time granted, that it was designed thereby to relieve the company from the payment of these license fees. The theory of the act is that it had granted the right to construct an extension of the road to the company, and out of that grant there could be no reason for inferring that the legislature intended that the company should no longer pay the license fees to which it had become subjected under the agreement made with the city and confirmed by the act of 1854. The provisions of the general railroad act of the State, with their amendments, which were made applicable by the act of 1874 to this company, contained no enactment or direction whatever upon this subject, neither in the way of creating or of relieving street railway companies from these obligations. What the legislature seems to have intended by this section of the act was to subject the use and operation of the defendant’s road to the provisions of the general railroad law. And they relate to its management, the duties of the officers to report, etc., and are in no way in conflict with the duty to pay the license fees in this manner imposed upon the company. The act was probably framed and passed at the instance of the company itself, and the manner in which the section was drawn betrays at least a suspicion that it was designed, by means of its obscurity, to obtain an advantage over the city which could not be expected to be secured through clear and unambiguous terms. And that this provision was incorporated with the hope that through its implication escape from the liability might be attained. And this suspicion is to some extent certainly confirmed by the immediate refusal of the company to pay the license fees accruing after the year in which this act became a law. But obscure and ambiguous language employed in this manner cannot, under well settled legal principles applicable to it, be so construed, for it is to be taken most strongly against the company, to whom the right to make the extension was granted, and at whose instance the act was probably passed. ( Dermott v. State, 99 N. Y., 101.)

Beyond that this being a local act it was required by section 16 of article 3 of the Constitution of the State to express the subject of its enactment in its title. But the title to this act neither mentions nor refers to any subject indicating it to have been the intention of the legislature to discharge the railroad company from the payment of the license fees. By its title it has been denominated An act to require the Eighth Avenue Railroad Company to extend its railroad route in the city of New York, and to regulate the use and operation of the railroad of said company.” If it had been intended, through anything contained in the act, to abrogate the right of the city to demand payment of these license fees after its passage, it is fair to assume that something, either in the title or the law itself, would have clearly disclosed that intention. But nothing of that kind was either attempted or accomplished. What was done was to declare that the railroad company should be after-wards in the use and operation of its road subjected only to the provisions of the general law of the state, with its amendments, and by that mere declaration it could not have been the design of the legislature to relieve the company from the payment of the license fees. If such a design had existed it is to be expected that it would have been expressed, either in the title or the act itself, in terms that could leave no reasonable ground whatever concerning the fact.

But if the act by any possibility could be so construed as to supersede the liability of the company to pay the license fees, it would be inoperative, for it had become liable to make such payments by the contract under which it acquired the right to construct and operate the principal part and residue of its road, and over which its cars have been and are drawn and operated. It was one of the stipulations entered into and inducing this concession, and from the time of its confirmation and ratification by the act of 1851 it has clearly been binding and effectual upon the railroad company. And after having become so, the legislature was prevented by subdivision 1 of section 10 of article 1 of the Constitution of the United States which prohibits the States from passing any law impairing the obligation of a contract from relieving the compan y of the obligation to perform this part of its contract. The case was rightly disposed of at the trial, and both the judgment and the order should be affirmed.

Yan Brunt, P. J., and Brady, J., concurred.

Judgment and order affirmed.


text:
    HENRY D. LAPAUGH, Plaintiff, v. JAMES WILSON Administrator, etc., Defendant.

      Attorney and client — the death of the latter terminates the authority of the former

    The death of the plaintiff in an action terminates the authority of his attorney to act for him, and he cannot thereafter apply for leave to annex and file with the judgment-roll, filed in the action, affidavits showing that the signatures of certain of the defendants to an admission of the service of the summons upon them were genuine,

      Putnam v Van Burén (7 il >w., 31); Austin v. Monroe (4 Lans, 67), Amore v. La Mothe (5 Abb. N. C , 146^ followed.

      Appeal by Jolm Townskend from an order denying a motion to vacate an ex parte order allowing proof to be supplied to a judgment-roll of the service of the summons in the action.

      John Townskend, in person.

      John Andrews, for the respondent.
   Daniels, J.:

The action was commenced in September, 1852, a judgment by-default was taken in it on the 20th of October, 1852. By the judgment-roll, an admission appeared to have been indorsed on the summons, and signed by James Wilson, administrator and Sarah J. Finley, administratrix, admitting service of the summons to be made upon them on the 18th of September, 1852; but in the record no proof was made that these names were subscribed by the defendants in the action. To supply this proof an application without notice was made to the court by John Andrews, the attorneyin the suit, on the 7th of January, 1884. And on this application an order was entered allowing him to annex and file with the judgment-roll an affidavit of the genuineness of these signatures. And under this order such an affidavit was filed and made a part of the judgment roll. The appellant claims to have acquired interests in property which were liable to be injuriously affected by this amendment of the judgment roll, which was allowed to be made as of the day on which the judgment was entered, and to avoid that he moved on notice for an order vacating the ex parte order, and from the order denying that motion this appeal has been taken.

At the time when the application was made for the ex parte order, the title to certain real estate, in form affected by the lien of the judgment, had come in contest in the courts, and the order to amend the roll was obtained to sustain the title, claimed adversely to that of the appellant. Before the application was made for the ex parte order, the plaintiff in the judgment had departed this life, and that, without reference to the long lapse of time between the entry of the judgment and the making of the application, terminated the authority of the attorney. He had, after that, no legal power to represent him in this application, as he did in applying for and obtaining the ex parte order. This subject was considered, and the principle mentioned was supported by tlie decisions made in Putnam v. Van Buren (7 How., 31), Austin v. Monroe (4 Lans., 67), and Amore v. La Mothe (5 Abb. N. C., 146), where it was held to be the law that the decease of the client necessarily terminates the authority of the attorney. Besides that, he did not profess in his affidavits to be authorized by any person to make the application, but made it upon the statement that he was the attorney for the plaintiff in the action, not that he still continued to be at the time when the application was made. That he could not state to be the fact, inasmuch as the plaintiff had previously departed this life. As the application to vacate the order was supported, it accordingly should have been granted, for, on the motion of the attorney, the court had no power to allow this defect in the judgment roll to be supplied.

The order should be reversed, with the usual costs and disbursements, and an order entered vacating the ex parte order.

Bartlett, J., concurred.

Order reversed, with ten dollars costs and disbursements, and older entered vacating the ex jparte order.