author: Van Brunt, P. J. Daniels, J. Brady, J.

text:
    The People, etc., App’lts, v. Albert F. D’Oench, Superintendent, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Statutes—Construction of—Intent of the leqislature.
    It is a well settled rule in the construction of statutes that the legislative intent must govern even where such construction seems to run counter to the letter of the law.

      2. New York (city of)—Building act—Consolidation act, §§ 492, 498, 504.
    Sections 492 and 498 of the consolidation act in effect provide that no building erected before the passage of the act can be raised beyond the height of seventy feet without the same is made fire proof. These sections, taken together with section 504, provide for the erection of old buildings to a height exceeding seventy feet, but all that was intended was to give the board of examiners, in cases to which the law did not apply, a power of construction varying from the one required in the act and which in their judgment was equally good and more desirable from the peculiar circumstances of the case, but being also fire proof, that being an absolute requirement. (Opinion of Van Brunt, P. J.)
    3. Same—Jurisdiction of the board of examiners.
    The statute confers no authority on the examiners to allow combustible material to be used in place of the incombustible substance mentioned and referred to in its preceding sections. What is intended is that they might permit some other substance to be used which should appear to be equally as good and more desirable than iron and brick, previously mentioned. This part of the act is in such flexible terms as to include such material if it should afterwards be discovered; but in any event the building is to be made fire proof. It was upon this question whether the material proposed to be used was equally good that the board were to hear the petition. Having nothing before them sustaining that inquiry their decision was made without authority and being beyond their jurisdiction was of no force or effect. Before they could extend this liberty to the petitioner there must be some evidence to this effect before them. (Opinion of Daniels, J.; Brady, J., reading for reversal, holding that the determination of the board must be final.)

      .Almond Goodwin, for app’lt; William L. Findley, for resp’t.
   Van Brunt, P. J.

I cannot concur with Mr. Justice Brady in the conclusion to which he has arrived upon this appeal. o

The construction put upon the building act in his opinion seems to me to render nugatory some of its most positive provisions.

Section 492 of the consolidation actas amended provides: “Every building hereafter erected (for which plans have not been heretofore filed), the height of which exceeds seventy feet shall be built fire proof.’ ”

Then follow provisions regulating the use, composition and perfection of manufacture, of metal columns, of brick arches and other material to be used in the construction of Such fire proof buildings.

Then follows section 498 which provides as follows:-

“No building already erected or hereafter to be built in said city, shall be enlarged, raised, altered or built upon in such manner, that were such buildings wholly built or constructed after the passage of this act, it would be in violation of any of the provisions of this title.”

The effect of these provisions seems to be that no building erected before the passage of this act can be raised beyond the height of seventy feet without the same is made fire proof. The building in the case at bar has never been raised above forty feet in height, but upon either side have been constructed buildings having party walls of the height of eighty-five feet, which were constructed at joint expense upon the land of the relator, his neighbors, and the relator proposes to raise his buildings to the height of eighty-three feet.

Applying the provisions of section 498, if such addition is made it must be fire proof.

We are then brought to the question as to whether there is any provision in the act referred to in pursuance of which the right of the law as to the fire proof character of future constructions exceeding seventy feet in height can be abated.

Section 504 provides that the superintendent of buildings shall have power to vary or modify the provisions of this title, upon application therefor in writing, only in case of alteration of old buildings where the same cannot be taken down and where there are practical difficulties in the way of carrying out the strict letter of this law, so that the spirit of the law is observed, the public safety secured and substantial justice done.

This portion of this section seems to confer upon the superintendent of buildings in the case of the alteration of of old buildings and in such a case only authority to vary or modify the provisions of this title where such variation or modification does not contravene the spirit of the law or endanger the public safety and is consistent with public justice.

But the superintendent of buildings cannot permit these variations or modifications solely guided by his own judgment. Before the superintendent can permit these modifications, he must get the approval of a board of examiners constituted as the law directs, to the proposed modifications.

The act says: “But no such deviation shall be permitted except a record of the same shall be kept by said superintendent of buildings; and a certificate be first issued to the party applying for the same, such certificate shall not be issued until a board of examiners (here follows the provision as the composition of the board of examiners), shall also approve the proposed modifications of the law.

This makes a complete system in respect to old buildings, which it is desired to raise to a height above seventy feet. Neither the board of examiners alone, nor the superintendent of buildings alone can waive any of the provisions of the law; both the board and the superintendent must concur in the opinion that the proposed modification is consonant with the spirit of the law and does not* endanger the public safety before the stringent provisions of the law can be waived. Either may put a veto upon the issuance of such a certificate.

The legislature did not intend that this extraordinary power should be used unless grave necessity required it.

These provisions seem to be a complete system having relation to the alteration of old buildings, and to apply directly to the case of the relator. His application was to be permitted to “alter an old building” by raising it from forty feet to eighty three feet in height. It involved “ the use of party walls belonging to different owners,” and the claim was that there were “ practical difficulties in the way of carrying out the strict letter of the law.”

But it is said that the legislature meant nothing by the foregoing provisions, and that in any case the board of examiners may alone authorize the issuance of the certificate if the applicant only says in his petition that the provisions of this rule do not directly apply.

The language upon which this extraordinary claim is founded is as follows.

“In cases in which it is claimed by an owner in person, or by his representative, that the provisions of this title do not directly apply or that an equally, good and more desirable form of construction can be employed in any specific case than that required by this title, then such person shall have the right to present to the board of examiners, and may appear before said board and be heard; and said board shall consider such petition in its regular order of business, and as soon as practicable render a decision thereon. The said board of examiners are hereby authorized and empowered to grant- or reject such petition, and their decision shall be final. If such decision is favorable to said petitioner a certificate shall be issued by the superintendent of buildings in accordance therewith,”

It will be seen that if the language is construed literally, that the claim, extraordinary as it appears, is well founded.

The statute does say in so many words that all that is necessary to avoid the veto power so carefully given to the superintendent of buildings in respect to modifications of the law, so far as it affects alteration in old buildings, is for the owner to claim in his petition that the provisions of the law do not directly apply to his case, and that then all the barriers so carefully erected 'by the legislature against modifications have been successfully evaded, and the board of examiners are all powerful and utterly independent of the superintendent of buildings.

It is, however, a well settled rule in the construction of statutes that the legislative intent must govern even where such construction seems to run counter to the letter of the law.

In People ex rel. Wood v. Lacombe (99 N. Y., 43), at page 49, the court says:

“In the interpretation of statutes the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances.

“A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit, the object and purpose of a statute which are to be regarded in its interpretation, even although they are contrary to its literal meaning. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the law makers. These general rules are upheld by numerous authorities. People ex rel. Twenty-third Street R. R. Co. v. Commissioners of Taxes, 95 N. Y., 558; Burch v. Newbury, 10 id., 389; Oswego Starch Factory v. Dolloway, 21 id., 449; People v. N. Y. C. R. R. Co., 13 id., 78; Donaldson v. Wood, 22 Wend., 397; Watervliet Turnpike Co. v. McKean, 6 Hill, 619; 3 Bing. Rep., 193; Commonwealth v. Kimball, 24 Pick., 359.”

In the cases quoted from the court applying the rule stated, held that the legislature’s declaration that the act in question should take effect “January 1, 1885,” should be read as if it said “January 1,1885, at twelve o’clock noon.” See 99 N. Y., 54.

In Burch v. Newbury {supra), the words “first day of July,” were read as “first Monday of July.”

In People ex rel. Twenty-third Street R. R. Co. v. Commissioners (supra), and Oswego Starch Factory v. Dolloway (supra), the court of appeals rejected the literal words ana interpretation of the acts relating to the taxation of corporations, and rejected their specific requirements because otherwise the intent of the legislature to subject them to taxation on the actual val.ue of their capital would be defeated.

The legislature could never have intended to stultify itself by providing in the act in question that all that it was necessary to do to evade the law is to have the owner say that the law does not apply, and therefore the inquiry arises, what did the legislature mean.

It seems to me that they did not in any mannqr intend to interfere with the provisions in respect to alterations of old buildings. That all that was intended was to give the board of examiners in cases to which the law did not apply, and in those cases to which the law did apply, but a form of construction varying from the one required in the act was proposed, which, in their judgment, was equally good and more desirable from the peculiar circumstances of the case, but being also fireproof, that being an absolute requirement for the power to authorize the issuance of a certificate although it was not proposed to comply with the strict letter of the law.

This construction gives full force and effect to all the provisions of the' statute and relieves the statute of its seeming incongruities.

But it is claimed that the statute says that the decision of the board of examiners shall be final.

That they are to be the sole judges as to whether the statute applies or not, as well as sole judges as to whether an equally good or more desirable form of construction is proposed.

It is true that the action of the board may be final in these cases in which they acquire jurisdiction, but the legislature certainly did not intend that simply because an owner may state in his petition that the law does not apply "when it is perfectly clear that it does, that the board of examiners can repeal the whole building law and cause to be issued a certificate, which seems to me to be the claim of the appellant in the case at bar.

Due force can be given to every part of the statute without conferring such extraordinary powers, which powers are utterly inconsistent with other parts of the act, and operate virtually to give the board of examiners the power to repeal all the provisions of the building law.

It seems to me, therefore, that the building and proposed alteration thereto of the relator, comes directly within the provisions of the building law relating to the alteration of old buildings, and that no certificate can issue without the concurrent action of the superintendent and board of examiners.

The order appealed from should be affirmed with costs.

Daniels, J.

The relator proposes to make additions to a brick building, known as 29 West Thirteenth street, in the city of ¡New York. It is now two stories above the basement and about forty feet in height. It is proposed by him to put on two additional stories, raising it to a height of eighty-three feet and six inches. The adjoining buildings on each side are about the same height. They have been erected with party walls to the expense of which the relator contributed, which appear to be sufficient to allow this addition to be made to his own building. In putting on the additional stories the material of the front and rear walls will be brick and iron, and being free from combustible material will be without exception. But the floors of the additional stories are proposed to be made of wood, and it is on that account that the respondent refused to issue his certificate allowing the additions to the building tobe made. After such refusal an application was made to the board of examiners for permission to make the additions which the superintendent of buildings had refused to sanction. This application was made under the authority of the consolidation act as it has been amended by chapter 456 of the Laws of 1885. And to bring it within section 504 of the consolidation act, as it was amended by section 31 of the act of 1885, it was stated in the relator’s petition to the board, that an equally good and more desirable form of construction can be and is proposed to be employed by him, than that provided for in other sections of the act. The examiners in their action upon the petition by a vote of five to two, resolved to grant the petitioner’s application allowing him to make the additions to his building in the manner already mentioned. The superintendent of buildings was a member of the board, and one of the persons voting against the -allowance of the application,and afterwards declined to issue the certificate notwithstanding the vote which had been given in favor of the applicant. And it was to oblige him to issue the necessary certificate sanctioning the additions proposed to be made to the building, that the application followed for the mandamus, that was denied by the order from which the appeal has been, taken.

And whether the superintendent was legally right in his refusal to act is the point upon which the disposition of the appeal must depend.*

By section 492 of chapter 410 of the Laws of 1882, as amended by section 21 of chapter 456 of the Laws of 1885, it was provided that buildings afterwards erected in the city of New York exceeding seventy feet in height, should be fire-proof, with brick walls and wrought or cast-iron beams, or wrought-iron colums with wrought-iron beams, and filled in with what would be fire-proof material between the beams. And by section 498 of the act of 1882, as it was amended by section 2Y of the act of 1885, it was declared that no building already erected should be enlarged, raised, altered or built upon in such a manner that were such building wholly built or constructed after the passage of this act, it would be in violation of any of the provisions of this title.

These two sections required the additions proposed to be made to the relator’s building to be constructed substantially in the manner described therein, which would render it fireproof. It was, however, provided by section 504 of the act of 1882, as it was amended by section 31 of the act of 1885, that the superintendent, with the consent and approval of the board of examiners, should be at liberty “to vary or modify the provisions of this title upon application therefor in writing only in case of alteration of old buildings, or the use of party-walls belonging to different owners, where the same cannot be taken down, and where there are practical difficulties in the way of carrying out the strict letter of this law, so that the spirit of the law is observed, the public safety secured and substantial justice done. ” But the relator did not proceed under this portion of the section; neither could he do so, for that required the concurring action of both the superintendent and the board of examiners. What he did do was to apply under the succeeding portion of the section, which declares that “ in cases in which it is claimed by an owner in person, or by his representative, that the provisions of this title do not directly apply, or that an equally good and more desirable form of construction can be employed in any specific case than that required by this title, then such persons shall have the right to present a .petition to the board of examiners and may appear before such board and be heard, and said board shall consider said petition in its regular order of business and as soon as practicable render a decision thereon. The said board of examiners are hereby authorized and empowered to grant or reject such petition, and' their decision shall be final.

If such decision is favorable to said petitioner a certificate shall be issued by the superintendent of buildings in accordance therewith. It was stated in the petition that the provisions of the act did not apply directly to the case of the petitioner, but no facts were disclosed which would render it inapplicable. The sections already referred to on the contrary show that they were applicable to the case of the petitioner, and by clear language included and controlled the additions proposed by him to be made to his building. From this part of the section therefore, he could derive no possible advantage, and the case remained to be considered upon the affirmation “ that an equally good and more desirable form of construction can be and is proposed •to be employed by him. ” No evidence seems to have been taken by the board of examiners in support of this affirmation, but the board acted upon the petition itself and the answers returned by the relator to the questions presented to him, accompanying his application for liberty to make the additions to his building. And by those answers the fact was clearly disclosed that the floors designed to be added in carrying up the building, were to be constructed of ■ wood, and it was such floors that the board of examiners must have considered in the vote taken by its members, to be a more desirable form of construction than that prescribed by the preceding sections of this act. This was very clearly a misapprehension on the part of the voting majority of the board of examiners, for it will readily be seen that a construction of the floors by beams and lumber is not equally as good, or more desirable, than a construction in the form prescribed by the provisions of the statute, requiring that to -be of iron and other fire proof material. The statute conferred no authority on the examiners to allow combustible material to be used in place of the incombustible substances mentioned and referred to in its preceding sections. It was entirely obvious that it was not the inr tention of the law to allow the examiners to permit wood to be used in place of fire proof material, but what was intended was that they might permit some other substance to be used which should appear to be equally as good, if they could be found, and more desirable than the iron and brick previously mentioned. What that might be was not defined by the act, but this part of it was enacted in such flexible terms as to include such material if it should after-wards be discovered or found. It was not to permit the the mode of construction allowed before this law was enacted to be followed in the erection or the extension of so high a building, but still to require that to be made fire proof, either by employing the material already prescribed or some other that might afterwards appear to be equally good and more desirable. But in any event the building has been required to be made fire proof. No such mode of constructing the additions to the building was made to appear before the examiners, but what they were applied to for, was liberty to construct the internal portions of the additions with wood, and the right to do that, the statute did not include within the authority conferred upon the examiners. It gave them no power to extend liberty to the applicant to make the additions of wood and timber, but only to allow such additions to be made in an equally good and more desirable form of construction than that previously mentioned in the act. And it was to ascertain whether the additions could be made in an equally good and more desirable form of construction, but still of fire proof material, that the board were empowered to hear the petioner, and upon that hearing were to consider the petition and render a decision thereon which should be final, not that the preceding mode of construction, which it was the subject of the statute to disapprove and condemn, should be restored and used, but whether the additions could be made fire proof in some equally good and more desirable form than that which the legislature by the act described. This inquiry the examiners evidently failed to pursue, for there was nothing before them upon which they could say, or decide, that an equally good mode of making the additions had been mentioned and described by the petitioner, to that previously prescribed by the statute and having noting before them sustaining that inquiry, or a decision to be made upon it, what they md do was without the authority of the law. And although they made the decision which they did, as it was without authority it was beyond their jurisdiction and of no force and effect by way of supporting the application which was made for the writ.

Before they could extend this liberty to the petitioner, it was necessary that they should have some evidence before them, even though it might be slight, that the manner in which it was proposed to make the additions was equally as good and more desirable than that mentioned in the statute, which consisted in the use of incombustible materials. They had no such evidence, and the decision which they made was, for the want of it, without jurisdiction. Staples v. Fairchild, 3 Com., 41, 46; Van Alstyne v. Erwine, 1 Kernan, 331, 340; Skinnion v Kelley, 18 N. Y., 355, 356; Frees v. Ford, 2 Seld., 176, 178. And this want of jurisdiction deprived the vote or resolution of the board of all authority, even when it may be brought in question, as it has been now, in a collateral proceeding. Roderigas v. East River Savings Institution, 63 N. Y., 460, 464; Cagwin v. Town of Hancock, 84 id., 532, 571; Davidsburgh v. Knickerbocker Life Ins. Co., 90 id., 526, 530.

And as the decision of the examiners was without authority of law, and not within the power by the statute committed to their jurisdiction, as long as it gave them no authority to substitute combustible for incombustible * material, it failed to support the application for the writ of mandamus, and the order should be affirmed, with costs.

Brady, J.

(dissenting)—The appellant is the owner of a building known as No. 29 West Thirteenth street, in this city, which is twenty-five feet in width, 103 feet in depth, and 40 feet in length, the outer walls being of brick, stone and iron. Designing to alter it by raising it, he submitted to the superintendent of buildings specifications and plans for the proposed alterations, by_which it appeared that he did not intend to make the additional structure fire-proof, as provided by the laws on that subject, and the superintendent therefore disapproved of the project. Subsequently the appellant presented a petition on the subject to the board of examiners in accordance with and by authority of the act of 1885, chapter 456, section 31, and that board granted the petition. It was asserted in the petition that the provisions of law relating to such alterations did not apply and that an equally good and desirable form of construction could be and was proposed to be employed by him, as shown in the application (schedule “B.”) This was done in order to meet one of the emergencies anticipated by the section mentioned, and which expressly provides for such a procedure, authorizing the board to grant the petition notwithstanding the apparent departure from a strict compliance with the law, when it appears either that its provisions do not apply to the particular case, or an equally good and desirable form of construction can and is to be employed.

The learned justice in the court below, however, refused to grant a mandamus to compel the superintendent of buildings to issue a certificate enabling him to avail himself of the action of the board of examiners in his behalf, and hence this appeal. He seems to have been controlled in his judgment by the requirements as to fire-proof construction, and the assumed absence of any offer of an equally good form of construction as to that element of the application, and said substantially that reasons were given in aid of the superintendent’s refusal to approve. In this he seems to have been in error inasmuch as it is distinctly alleged in the petition that an equally good form of construction was proposed as_ shown in the application, referring to schedule “B,” which does not appear in the papers, unless the application. designated “D,” is the one intended.

The board, however, having passed upon the petition with the proposed plan before it, and it must be assumed after due consideration of its fitness, has this court the power to reverse its action ? It is thought not, inasmuch as the section declares that it shall be final. The object of creating the board, and of permitting a departure from the strict letter of the law, was to invoke the judgment of competent persons upon the proposed departure, whose experience and capacity thus secured and employed would ensure the public safety, notwithstanding the permission given. And it must be assumed that the legislature contemplated structures which should be allowed to avoid the injustice or hardship which might ensue if the laws were rigorously applied. It was evidently intended, also, that the decision of the board should be final, not only because! it is so expressly declared, but in order to make the proceeding summary and thus prevent delay in the consummation of the enterprise contemplated. Doubtless this court, if it had the power, would, on the papers presented by the record, have withheld its approval; if the application had been presented here in the first instance, the provisions as to fire proof constructions commending themselves as valuable, wise, protective and important, and rarely to be departed from, but the legislature have given to others the authority invoked by the appellant and successfully..

For these reasons, treating the question considered as one of power, it is thought the other appealed from should be reversed and a mandamus ordered. No costs are, however, given to either party of this appeal.


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    William H. Sistare and George K. Sistare, App’lts, v. Frederick P. Olcott, Receiver, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Stocks and bonds—Re-hypothecation—Right of possession.
    By the re-hypothecation of securities, special relations are established, which are entirely distinct from those created by the hypothecation of the same property. The party re-hypothecating the securities has the right of possession, of which he cannot lawfully be deprived by the party with whom they are re-hypothecated, even though the person who originally hypothecated them pay the loan for which they were re-hypothecated.
    3. Trover—Unlawful delivery op re-hypothecated securities— Measure of damages.
    In an action brought by the re-hypothecating party after the liquidation of the first loan, for the conversion of the property pledged, caused by its delivery by the party with whom it was" re-hpothecated, to the person who originally hypothecated it, on the payment of the second loan, if the property was not worth more than the loan for which it was re-hypothecated, the conversion would be damnum absque injuria, while, if it was worth more, the damages recoverable would be the difference between its value and the sum paid. .
    Appeal from a judgment entered upon a verdict on a trial before Mr. Justice Van Brunt and a jury. The action was originally brought against Charles J. Osborn, as receiver of the Wall Street Bank. Mr. Osborn died during the pendency of this suit, and the action was continued against his successor. The suit was brought for the conversion of 105 shares of stock of the American Printing Company and 250 shares of stock of the Youghioghenv River Coal Company. These shares were hypothecated with the Wall Street Bank as collateral for a loan of $30,-000, made May 14, 1884, by the bank to the plaintiffs. On May 16, 1884, the plaintiffs paid the bank on account of the loan, -10,000. The bank failed in August, 1884, and the plaintiffs thereupon tendered to the receiver $20,000 and interest, and demanded of him the whole collateral which had been originally pledged to the bank, and for the refusal to deliver this collateral the action was brought.
    The original defense was that the whole of this stock really belonged to William J. Hutchinson, who had hypothecated it to the plaintiffs as security for his general balance, and the plaintiffs had then re-hypothecated it to the bank. That Hutchinson, with the consent of the plaintiffs, had received from the bank the coal stock, had sold it and had paid the plaintiffs $10,000 on account of the price (thus returning to them the $10,000 which they paid to the bank on account of the loan), and paid the bank $10,000 more on account of the loan, leaving only $10,000 due upon it. That the defendant had always been ready to deliver the printing company stock, to the plaintiffs, upon the payment of the balance remaining due upon the loan, after the two payments of $10,000 each.
    After the original answer was served, the defendant interposed a supplemental answer, setting up that after the commencement of the action, Hutchinson, who was the real owner of the stock sued for, entered into an agreement with the plaintiffs, by which they accepted certain payments made to them by Hutchinson and his wife, in full satisfaction and discharge of all indebtedness from them, or either of them, to the plaintiffs, and by which they agreed to release Hutchinson and his wife from all claims, causes of action or demands which the plaintiffs, or either of them, had against Hutchinson or his wife by reasons of any loans or advances theretofore made by the plaintiff to them.
    The conceded facts of the case are as follows: The stock in question did belong to Hutchinson; he was buying and selling stocks through the medium of plaintiffs as brokers, ‘ and hypothecated the stock in question to them as collateral security for his general balance; they re-hypothecated the stock to the bank after the loan of $30,000, and on the demand of the bank they paid on account of this loan May 16, 1884, $10,000. About the time of this payment the bank delivered to Hutchinson the coal company’s stock, which had been pledged to the bank by plaintiffs, and 250 other shares of the coal company’s stock which also belonged to him. On May 20,1884, these stocks were sold by Hutchinson’s direction and delivered to E. S. Chapin & Co. for $40,-000. Out of the proceeds Hutchinson paid to the plaintiffs $10,000 and the bank $10,000, and the bank credited the latter payment on the loan of $30,000.
    William H. M. Sistare, one of the plaintiffs, testified that this delivery to Hutchinson was without his consent; that when he learned of it he protested against it, and that he did not know that the $10,000 which Hutchinson paid him on May 20, 1884, was part of the proceeds of the coal company’s stock. On the other hand, Hutchinson testified that the stock was delivered to him with the consent of the plaintiffs, and that they knew that the entire proceeds of the stock went to their credit—$10,000 by direct payment and $10,000 by payment to the bank, which was credited on the loan.

      In fact, there seems to be little doubt that the entire proceeds of the stock did go to their credit, whether they knew of it or not. The checks which were put in evidence show this beyond all question it would seem. The transfers of the stock were put in evidence, and the check for $40,000 which Hutchinson received for the entire lot. The stock note which the plaintiff gave to the bank upon obtaining the loan in question, May 14, 1884, authorized a sale of the stock at public or private sale at the option of the bank.
    The facts proved under the supplemental answer were as follows: _ °
    _ On February 19, 1885, these plaintiffs brought an action against William J. Hutchinson and his wife, the complaint in which alleged that those defendants had conspired to place all Hutchinson’s property in his wife’s name; that Hutchinson had represented to the plaintiffs that the property still belonged to him, and that on the faith of this representation they had advanced for his account in a11 $88,716.11.
    On the same day the plaintiff William H. M. Sistare made an affidavit for the purpose of obtaining an attachment in the action, in which, after repeating the statements •of the complaint, he alleged that the defendants had absconded for the purpose of defrauding their creditors, and that part of Hutchinson’s property, which had been transferred to the name of his wife, was the house No. 4 West Fifty-eighth street, in the city of New York, of an estimated value of nearly $400,000.
    On this and other papers an attachment was obtained by the plaintiffs against the house No. 4 West Fifty-eighth street and other property. On March 15, 1885, an agreement was made between the plaintiffs and Mr. Hutchinson which, after reciting the pendency of the action against the Hutchinsons to recover over $88,000, the attachment levied upon the real estate standing in the name of Mrs.' Hutchinson, and other matters, provided as follows, by separate paragraphs:
    1. That the Hutchinsons should pay to the Sistares $27, - 500, which was then paid.
    2. That the action brought by the Sistares against the Hutchinsons should be immediately discontinued, and the attachment and its lien on Mrs. Hutchinson’s real estate discharged.
    3. Immaterial as to this appeal.
    4. That this instrument should not operate to approve, ratify or acquiesce in any of Hutchinson’s acts, individually or as director, with respect to the securities for the conversion of which this suit is brought. That the plaintiff’s rights to such securities should remain unimpaired by the agreement, and that the agreement itself should not interfere with the rights of the plaintiffs to prosecute the action against the Wall Street Bank.
    5. That the Hutchinsons shall pay to the Sistares $10,000 upon the delivery to Mrs. Hutchinson of 105 shares of American Printing Company stock sued for in this case.
    6. That after the fulfillment of the foregoing provisions, each party should give to the other a general release, except only as to one matter having nothing to do with this case.
    Pursuant to this agreement, an order was entered upon the consent of both parties, vacating the attachment and discharging the premises 4 and 6 West Fifty-eighth street from the lien thereof.
    These facts being undisputed, the judge at trial ruled that they constituted a complete defense, and refused to permit the plaintiffs to go to the jury on the issues, and verdict was therefore directed for the defendant; and from the judgment entered thereon this appeal has been taken.
    The plaintiffs duly excepted to these rulings.

      H. A. Bennett, for app’lts; Thomas Q. Shearman for resp’t.
   Brady, J.

The settlement between the plaintiffs and the Hutchinsons did not embrace the claim against the bank. It was expressly reserved by the plaintiffs’ agreement of settlement, and it is equally clear that as to the stock not sold, the Hutchinsons regarded the plaintiffs°as the owners, Mrs. Hutchinson, by the terms of the settlement made, securing its delivery to her on the payment by her or $10,000. The whole stock hypothecated with the bank was indeed treated in that settlement, and properly so, as an indemnity in part for the advances made to Hutchinson and wife by the plaintiffs, and as the property of the latter. • The inference to be drawn, therefore, from the settlement made, as put in writing, is that the claim against the bank arising out of the hypothecation was a part of the sum or property given the plaintiffs in liquidation of their claim. If it were otherwise it is beyond comprehension that Mrs. Hutchinson would agree to pay the plaintiffs $10,000 for the American Printing Campany’s stock, when they obtained it as the result of the action commenced by them against the bank, a circumstance which must be regarded as a distinct and unmistakable recognition of the plaintiffs’ title to the stock and all things appertaining to it.

The counsel for the receiver of the bank seems to consider the plaintiffs’ interest in it, limited to the $30,000 loaned upon it by the bank, they having a special interest only; but this is an error inasmuch as it was deposited with them as security upon the general account of Hutchinson, and was applicable to any balance due from him, whatever it might be. The only special relations in reference to it indeed were created by the loan and existed between the bank and the plaintiffs. The plaintiffs in any view held the right of possession, of which they could not be deprived lawfully, even by Hutchinson’s payment of the entire loan, although if the stock were not worth more than the loan the conversion would be damnum absque injuria, while, if worth more than the loan, they would be entitled to the excess to be applied on general account. The bank cannot, therefore, avoid the responsibility by resort to any act of Hutchinson individually, or in combination with the cashier. The delivery of the stock to Hutchinson was unauthorized, and the appropriation of the proceeds by him would not protect the bank unless, as suggested, the stock was not worth more than the loan. The only theory eliminated from the facts detailed in favor of the defendant is that, by the settlement mentioned, the debt due the plaintiffs from Hutchinson was paid. This springs from the construction placed upon the agreement between the parties by which there was a surrender of the hens acquired by the attachment issued against Hutchinson in an action by the plaintiffs against him and his wife. It could not have the effect suggested, however, inasmuch as the claim against the bank is reserved, and the agreement provides for releases only after the decision in this action, and by which it was supposed the plaintiffs might recover the American Printing Company’s stock, which was to be delivered to Mrs. Hutchinson as we have seen on the payment of $10,000.

The settlement as suggested seems to have contemplated - the payment of a sum of money, to which any recovery against the bank was to be superadded, both parties pledg- • ing good faith to each other in observing and carrying out its provisions. The Hutchinsons had no claim against the, bank for the conversion of the stock or any fact or circumstance growing out of its hypothecation, but the plaintiffs had, for they were the owners, pro hac vice, not only for the purpose of the loan made but as security for any indebtedness of - Hutchinson to them. The transaction with the bank had nothing whatever to do with the dealings between the plaintiffs ana Hutchinson, and as already shown the bank cannot resort to them for protection unless it can show a settlement by which the account was closed, and the debt due the plaintiffs paid or discharged. The rules of law governing the facts disclosed are too familiar to require illustration or authority. The ingenious brief submitted on behalf of the respondents, though full of points strategical, does not require particular dissection, for the reason that the various theories so ably discussed have no basis in the facts. The rights of the plaintiffs to apply any surplus to the account of Hutchinson which might have resulted from a sale of the stocks by them after the payment of the loan made to them, seems to be overlooked by the defendant’s counsel; but this is really the pivotal point in the case. It is urged,it is true, that the plaintiffs were so financially embarassed that they could not pay the loan, but this is strongly denied. Indeed, many contradictions were presented by the evidence, but in considering the propriety of a direction to the jury to find a verdict the facts in dispute as well as those conceded must be considered for the appellant’s benefit unless completely overcome by paramount evidence, which is not the case here. The plaintiffs, for these reasons, . had the right to go to the jury on the issues and disputed questions, and it was error to deny the motion made for that purpose.

The judgment must, therefore, be reversed and a new trial ordered, with costs to abide the event.

Daniels and Bartlett, JJ., concur.


text:
    Cercle Francais de l’Harmonie, App’lt, v. Stephen B. French et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    Clubs—Private—Rights of police to interfere with entertainments.
    The police authorities have no right to invade the precincts of a private club with the intention to interfere with its festivities, which are properly-conducted and do not amount to a nuisance or breach of the public peace. But the police have authority to interfere when the festivities become of the nature of an entertainment open to the public.
    Appeal from an order made at special term denying a motion to continue an injunction pendente lite.

      Q. A. Seward, for app’lt; D. J. Dean, for resp’t.
   Brady, J.

The plaintiff is a social club organized under the laws of the state and owns the real estate in this city where it has its office and meeting-rooms, which are regularly used by its members and their guests. It has been accustomed annually for many years past to give a ball and to rent for that purpose the large building known as the Academy of Music, the club house being too small for the purpose. In connection with this ball the plaintiff has been in the habit of furnishing its members and their guests •with refreshments on the night of the bafi and from 1 A. M. until 5 a. m., and this included wines and liquors of different kinds. The Academy of Music has a license to sell liquors. The plaintiff proposing to give a ball on the 20th of January, 1886, duly obtained a license therefor from the board of police, leased the academy for the night, paid the rental of $1,000 and invested some $7,000 in provisions, wines and liquors to be used by its members and their guests at the ball. The police department under whose supervision the ball must take place have the right and power to close the same whenever any illegal act shall be committed. These authorities on the day the ball was to be given, which they had duly licensed, notified the plaintiff’s officers of their intended interference with and arrest, of the plaintiff’s members for; using and distributing their liquors, and that too without obtaining a warrant. This action was then^commenced to prevent these contemplated acts and an injunction obtained until the hearing of a. motion to make that remedy perpetual.

It was not intended to present the wines and liquors to the members or their guests, but to sell them at a price to be determined.

Upon the hearing of the motion it appeared by the affidavit of William H. Clinchy, who is a captain of police, that he was in charge of the police force on duty on the night of the ball and morning following; that the ball was carried on by the plaintiff and attended by a large number of persons, according to his estimate about 4,000 or 5,000 persons; that a box office was kept in the lobby of the academy at which checks or tickets were sold to all persons applying therefor, who were thereafter admitted to the ball and that between the hours of one and five A. m. , and on the twenty-eighth of January, wines and intoxicating liquors were publicly sold and furnished to- the persons attending the ball and that payment therefor was then and there required and taken by the persons selling the same. The statements thus made by the captain were not gainsaid and the motion was denied. The proposition that the police authorities may be prevented from invading the precincts of a private club house when the intention is to interfere with its festivities, properly conducted and not amounting to a nuisance or such a clamor as creates a breach of the public peace and particularly when the intention is to interfere with its property of any kind cannot well be doubted. The authorities so ably collated by the learned counsel for the plaintiff are conclusive on the subject. Seun et al. v. The State, 55 Md., 566, 571; Commonwealth v. Smith, 102 Mass., 144; Commonwealth v. Pomphret, 137 id., 564, 566; Graff v. Evans, 8 Q. B. Div. 373, 377; Springhead Spinning Co. v. Riley, L. R., 6 Eq. Cas., 551, 558; The People v. The Canal Board, 55 N.Y., 390, 393; Davis v. American Society, 75 id., 362, 369; The People v. Dwyer, 90 id., 402, 409; The State Lottery Co. v. Fitzpatrick, 3 Woods, 222.

But as shown by the affidavit of Captain Clinchy the ball was not confined to the members of the club, inasmuch as the tickets were publicly sold to any one who sought one, and the liquors were indiscriminately sold to the persons admitted and desiring them. These facts prevented the application of the rule established by the cases cited and the continuance of the injunction, for the reason that the Academy of Music ceased to be a private club house for the period during which the ball continued, the entrance to which and privileges therein were not confined to its members and their guests in the proper and legal sense of that term. It thus became a public festivity held in a public, not private, building, to which all could have access who paid for admission. The question, therefore, whether the police authorities have the right to invade a private club house is not strictly presented on the facts which appear in the record. The question we are now called upon to consider is not whether, under the facts and circumstances disclosed, an injunction should have been granted but whether it should have been continued, and, for the reasons given, it is clear it should not have been.

The order appealed from, therefore, must be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.


author: Per Curiam.

text:
    In the Matter of the Petition of the Metropolitan Transit Company.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    Railroads—Proceedings to condemn property—Who have right to BE HEARD—AMENDMENT OF PETITION—HOW MADE.
    Under a petition to ascertain what compensation is to be paid; all parties having any interest in the street through which the road is to pass, have a right to he heard. An application to amend the petition should he made at the special not the general term.
   Per Curiam.

We are of the opinion that under the petition in this proceeding, as it stands, all parties having any interest in the streets through which the petitioners’ road is to pass have a right to be heard, as all rights might be condemned thereunder, and the order appealed from must be reversed, with costs, and the petition remitted to the special term for further action.

An application having been made to the general term to amend the petition by limiting the proceedings thereunder to the ascertainment of the compensation to be paid to the city of New York for the use of the streets by the petitioner, we are of the opinion that such application should be made to the special term, and our decision herewith announced upon the order appealed from is made without" prejudice to such application.


author: Daniels, J.

text:
    John S. Stubbs and ano., Ex’rs, App’lts, v. Edward C. Ripley et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    Costs—When allowed to bespondent fob papebs pbinted on appeal.
    Where the appellant has omitted to print some of the papers referred to in the order from which the appeal is taken, the respondent has the right to tax in his bill of costs such disbursements as were rendered necessary in printing the omitted papers, but he will be restricted in printing to those only to which such reference was made.
    Appeal from an order re-adjusting respondent’s disbursements.

      Nelson J. Waterbury, for appl’ts; John F. McIntyre, for resp’ts.
   Daniels, J.

The defendants in their disbursements claimed $90.95 for papers printed on the appeal by the permission and direction of the court. The clerk upon their adjustment struck out the sum of eighty-five dollars, allowing the balance. The respondents appeal to the special term, where the clerk’s adjustment was increased by the allowance and addition of the eighty-five dollars. This sum was claimed for printing papers by the respondents on an appeal taken by the plaintiffs and claimed to have been omitted from the plaintiffs’ papers. The court, upon the matter being brought to its attention and a dispute existing as to the fact, allowed the respondents to print such papers as had been improperly omitted. They were to be papers referred to in the order appealed from, and under that liberty the papers, for the expense of printing which this sum was allowed, were added to the appeal papers.

But it was clearly the effect of the direction given by the general term that no more should be printed than were referred to in the order appealed from. Liberty was not given, and was not intended to be given, to the counsel to print any papers that he might be disposed to add to the papers on the appeal. According to his affidavit, he did not by printing the disputed papers add any more than Was made a part of the papers on the hearing before the special term. But this has been denied by the affidavit oí the plaintiffs’ counsel, who swore that not one of the papers for which the eighty-five dollars was allowed were used, nor submitted upon the original motion at the special term. • On this state of the proof, it cannot be said that the respondents were entitled to charge in the bill this sum of money as a part of the disbursements on the appeal. There was to that extent a failure of proof, and the order should • be reversed, with ten dollars costs, and also the disbursements, and the taxation of the clerk should be affirmed.

Van Brunt, P. J., and Brady, J., concur.


author: Bartlett, J.

text:
    William H. Smith, Resp’t, v. William D. Harris et al., Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Account stated — Action on-— Evidence showing fraud is admissible.
    The execution of a written admission of liability, while strong evidence of the fact that an account has been rendered and balanced between the parties, and that the ones executing the admission have assented to the balance, does not preclude them from showing that they signed the paper ' in consequence of fraudulent representations.
    2. Same—Fraud is a question for the jury.
    In an action brought upon such an instrument, the question of false reprentations is one for decision by the jury.
    3. Same—What elements necessary to constitute.
    In order to constitute an account stated, there must not only be an examination of the claims involved in the account, but an agreement as to their allowance.
    Appeal from judgment entered upon the direction of a verdict for plaintiffs

      Thomas Jackson, for app’lts; B. F. Dos Passos, for resp’t.
   Bartlett, J.

We think this case ought to have been submitted to the jury. The plaintiff derives his claim from Walker, Goicouria & Co., a firm of stock brokers, and the action is based upon an account to which the defendants are said to have assented by the execution of a paper in these words:

"Walker, Goicouria & Co.
“ Gents—We have received your account, and the balance of indebtedness against us of $17,882.29, is correct, and will be paid by us.
“ Respectfully yours,
“ WILLIAM D. HARRIS, “FIELDING L. WILLIAMS."

The defendants aver that their signatures to this paper were obtained by fraud and misrepresentation, exercised in the first place, upon the defendant Harris, who was induced to sign it by the false statement that the defendant, Williams, had previously agreed or consented to sign; and in the second place, upon the defendant, Williams, who was induced to sign it by the false statement that the defendant, Harris, had signed after looking over the paper, and examining the matter to which it related, and finding it all right. Evidence was introduced tending to prove the truth of these averments. The testimony of the defendant, Harris, shows that, at the time he was requested to sign the paper, he had never examined the monthly statements made by Walker, Goicouria & Co., in regard to the stock transactions, to see if they were correct; that he did not know, of his own knowledge, that they were correct; that the reason Hr. Walker gave for asking hini to sign the statement, was that he could use such a paper in his business, and that Hr. Walker further stated that the defendant Williams was willing to sign it and had consented to do so. The testimony of the. defendant, Williams, indicates that he had never expressed any such willingness, or given any such consent, and that he affixed his signature in consequence of Hr. Walker’s statement that the defendant Harris had examined the accounts and had found them all correct and had then signed the paper.

The execution of this written admission by the defendants was certainly strong evidence that an account had been rendered and balanced between them and Walker, Goicouria & Co., and that they had assented to the balance; but this proof of assent did not preclude them from showing that they signed the paper in consequences of fraudulent misrepresentations. A similar adjustment was relied upon in the case of Dunham, v. Griswold (100 N. Y., 224), and there the defendant was allowed to introduce evidence tending to show that he signed the agreement under duress. The false representations by which the defendants here say they were misled, were such as might well have induced each to suppose that the other had verified the correctness of the accounts rendered, in which they were both interested, and each might naturally be willing to make the admission contained in the paper, if he believed the other was satisfied that it accorded with the truth. Under these circumstances, the alleged misrepresentations were most material, and if satisfactorily proved, would go far towards destroying the effect of the writing.

There can be no doubt that, in order to constitute an account stated, there must be not only an examination of the claims involved in the account, but an agreement as to their allowance. Less than this will not suffice. Lockwood v. Thorne, 18 N. Y., 286. Here was evidence which, if believed, would have warranted the jury in finding that at least one essential element of an account stated was wanting.

If the defendants testified truly, they knew very little about what was in the account to which the memorandum referred, and their signatures to that memorandum were procured by statements which were false in fact. With this evidence in the case, the defense was sustained by sufficient proof to require it to be submitted to the jury.

In behalf of the respondent, it is argued that the defendants on the trial expressly conceded the several accounts to be correct. We do not find that the testimony goes so far as this. It is true that the defendants did not appear to have objected to the accounts, and that the defendant Harris admitted owing something, and that the defendant Williams was unable to pick out any inaccuracy when on the stand, but they interposed and sought to establish two counter claims, which were in direct hostility to the accounts. If there was an account stated, as claimed by the plaintiff, the transactions which formed the basis of these counter-claims would have been merged therein. The suit must stand or fall as an action upon an account stated, and there being no such clear admission of liability as demanded the direction of a verdict against the defendants, the question of whether an account had been stated or not, upon all the evidence applicable to that issue, should have been left to the jury for determination.

The judgment appealed from must be reversed and a new trial ordered, with costs and disbursements to abide event.

Brady and Daniels, JJ., concur.


author: Van Brunt, P. J.

text:
    Horace R. Kelly, etc., Resp’t, v. Alexander V. Davidson, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Trespass—Question as to title to property one of pact for the jury—Presumption op ownership.
    The jury are to determine from the evidence whether one purchasing property is the real owner, or whether he simply bought it for others. The presumption is that one who bought and paid for property is the owner.
    3. Evidence—Right op'jury to ascertain the real meaning op language USED BY A FOREIGNER.
    In case of the testimony of a foreigner, unaccustomed to the use of the English language, the jury have a right to look beyond the literal words employed and ascertain the real .meaning of his testimony.
    Appeal from a judgment entered upon a verdict in favor of the plaintiffs, and from an order denying a motion for a new trial.

      Cochran & Clark, for app’lt; G. A. Seixas, for resp’t.
   Van Brunt, P. J.

The questions involved in this appeal seem to be embraced within the denial of the motions to dismiss the complaint.

The claim made upon the part of the appellants is that Thomas De Fino, the plaintiff who commenced this action, was not the owner of the property upon which the sheriff committed the trespass mentioned in the complaint, nor was he in possession thereof.

It is admitted that the nephews of the plaintiff were in possession, and the question is whether they were shown to be the real owners by such evidence as was conclusive upon, the court.

The evidence shows that the property was bought and paid for by the plaintiff, Thomas De Fino. It also shows that he bought the store to put his nephews in the same, and that they carried on the business there.

It is to be observed that the process under which the sheriff justified, did not run against the plaintiff or his nephews, but against the previous owner of the property.

The question arising upon the evidence is whether the plaintiff transferred the title of this property, or simply allowed the nephews to make, a living out of it.

It appears that the plaintiff was a priest of the Eoman Catholic church, and that he had taken care of the nephews since they were babies.

Upon his direct examination he testified that he bought the store to put his nephews in—that he gave it to his nephews to work there.

Upon' cross-examination he stated in answer to the question:

Q. Did you go into possession of the store or your nephews for you ?

A. I gave it to my nephews.

And again:

Q. Did you present it to the nephews as soon as you bought it ?

A. Yes, sir; I made them a present immediately; I do not need it for my own person.

One of the nephews in his examination speaks of the inventory when he bought the store. He is also asked a question in which the words “ After you bought out Jaffe ” occur. And also in some places he speaks of the store as “my store.” And upon this evidence the defendant claims that his motion to dismiss should have been granted.

It appears that the plaintiff was a foreigner, unaccustomed to the use of the English language, and the learned court, in submitting the case to the jury, charged them that they might look beyond the literal words employed and ascertain his real meaning from all he said.

The whole course of his examination shows that he endeavored to have it understood that he bought the store in order that his nephews might make a living, and that he never intended to part with the title to the property.

He testified that he bought the place so that his nephews could live and conduct themselves honestly, and live honestly and respectably; and further, that he bought it for the benefit of.his two nephews.

The nephews swear that the store belonged to the uncle, and that he put them in the business, and that with the profits to support the family; and that when there were profits they sent some home and kept others only for a living.

From all this evidence the jury had a right to determine whether the uncle had made an actual present of the store to his nephews or not; and the mere fact that expressions were used in the course of the trial inconsistent with the uncle’s ownership did not deprive them of this right, as there was sufficient other evidence to justify a verdict that the uncle owned the property. He had bought it and paid for it, and the presumption was that he owned it.

The expression by one of the nephews, “my store,” means nothing evidently, as every clerk is accustomed to speak of his or our store without pretending that he has' any title to the same.

In view of the fact that the process under which the sheriff justifies did not run against the nephews, no possible motive is disclosed for attempting to claim the title to the property in the uncle rather than the nephews’ unless the fact was so.

There seems to have been ample evidence to sustain the verdict of the jury, and the judgment appealed from should be affirmed, with costs.

Bartlett and Lawrence, JJ., concur.


author: Lawrence, J.

text:
    John K. Sears and others, Resp’ts, v. Francis A. Waters, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    Corporations (manufacturing)—Liability of trustees on failure to file report—§ 12, Laws 1848, chap. 40, as amended by Laws 1875, chap. 570.
    The trustees" of a manufacturing corporation, under section 12, Laws 1848, chapter 40, as amended by Laws 1875, chapter 570, are liable for the debts of the corporation, on failure to file their annual report, and there is no distinction made between creditors out of the state, nor as to the place where the indebtedness was contracted.
    Appeal from an order and judgment sustaining plaintiffs’ demurrer.

      Charles H. Fuller, for pl’ffs and resp’ts; Cornelius A. Bunlcle, for def’t and app’lt.
   Lawrence, J.

This action is brought against the defendant as trustee of the United States Albumen Manufacturing Company, it being alleged that said company was a , domestic corporation, duly organized under the act for the formation of corporations for manufacturing, mining, etc., purposes, passed February 17, 1848, and the acts amending and supplementary to the same, and that between July 7, 1883, and November 3, 1883, at Hyannis, Massachusetts, the plaintiff sold and delivered to said company, at its request, goods and merchandise at the price of and for which said company promised and agreed to pay to said plaintiffs the sum of $763.70. It is alleged that a balance of $584.64 is due to the plaintiffs, and that the said goods were sold, and the said indebtedness contracted, after the time provided by statute for making and filing and publishing the annual report, and before said report was made, filed and published.

It is further averred, that said company did not within twenty days from the 1st of January, 1883, make and publish, as required by law, the report required by law, but has wholly failed so to do. To this complaint an answer was interposed averring, among other things, upon information and belief, that none of the goods referred to in the complaint were ever sold or delivered to said company in this state, and that no cause of action ever arose therefor in this state.

This action is brought under section 12 of the act of 1848, chapter 40, relating to the formation of corporations for manufacturing, etc., purposes, as amended by Laws of 1875, chapter 670. That section, among other things, provides that upon the failure to file the annual report therein referred to within the time therein specified, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made. The statute makes no distinction as to the place where such debts shall have been contracted, nor does it distinguish between creditors residing in this or in other states.

We are, therefore,. of the opinion that the decision at the special term sustaining the demurrer to the answer was correct, and that the same should be affirmed, with costs.

Van Brunt, P. J., and Potter, J., concur.


text:
    Ruth A. Post, Resp’t, v. Mary J. Stockwell, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Negligence—Action for damages—Contributory negligence.
    The fact that a hatchway is dangerous to persons on account of the risk of falling through the opening: Held, insufficient to put persons passing helow, on their guard against forcible contact with falling articles.

      %. Master and servant—Responsibility for acts of servant.
    The master is responsible for the acts of his servant committed within the scope of his employment. Held, that the liability to third parties was not altered by the fact of the use by the servant of hazardous methods of ■ performing services.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a new trial.

      J. E. Ludden, of counsel, for def’t and app’lt; W. W. Badger, of counsel, for pl’ff and resp’t.
   Van Brunt, P. J.

This action was brought to recover damages alleged to have been suffered through the negligence of a servant of the defendant while engaged in her business.

One Fisher was an occupant of premises No. 24 Vesey street, New York, and had been in the habit of selling to the defendant the paper shavings which accumulated in his (Fisher’s) factory.

The defendant was accustomed to send bags to the factory, in which the shavings were packed as they were made, and on the morning of the accident one of Fisher’s servants had sent word to the defendant to send and take away a lot of papers which had accumulated there, and the defendant, Muller, an employee of the defendant, was sent with a hand-cart to bring away the paper. Upon reaching the premises the paper, being upon an upper floor of the building, was thrown down a hatchway to be received by Muller, who undertook to guard the hatchway and passage beneath to prevent the passage of persons while Donohue, Fisher’s employee, was throwing down said bags of paper.

The plaintiff, in passing in the building in which she was employed, and being ignorant of this use of the hatchway, and not being warned by Muller, was struck by one of the bags and injured.

It appears that the plaintiff knew that the hatchway over the entrance was used for lowering paper and other things, but had never seen bundles thrown down the hatchway, and that Fisher himself had fallen through it about two weeks before.

Upon the trial a motion was made to dismiss the complaint, because it was shown that the plaintiff herself was guilty of contributory negligence.

It is true that the plaintiff knew that her employer had fallen down this hatchway from an upper floor some two weeks before, but this fact hardly called upon her to suppose that in entering the building she was liable to encounter men falling down the hatchway.

The knowledge of Fisher’s fall might have put the plaintiff upon her guard as to the danger of falling down the hatchway herself, but did not require her to exercise much greater care in passing in the building lest she might be fallen upon.

It is also true that she knew that this hatchway was used for the lowering of goods from the upper floors to the ground floor, but she had no knowledge that the dangerous practice of throwing goods down the hatchway had ever prevailed, and she not only had no reason to anticipate such a danger, but every reason to suppose that such a danger did not exist, as she had always seen goods lowered through the hatchway.

The mere fact of seeing a man standing in the passage is not shown to have been such a strange phenomenon as would necessarily attract the attention of the ordinary passer by, or that it was a circumstance calculated to attract attention or cause remark.

The plaintiff having no reason to anticipate the danger does not seem to have been guilty of contributory negligence in entering the building in the ordinary way.

The next question involved in this appeal is as to the liability of the defendant.

It is claimed that Muller was not about his master’s business when he undertook to keep people away from, the passage while Donohue was throwing down the bags.

Muller was sent to get this paper and bring it away, and he undertook to receive it. in this dangerous way, and it was because of his negligence in not keeping persons out of this passageway while he was engaged in receiving the paper that the plaintiff was injured.

In receiving the paper Muller was engaged in his master’s service, and if he participated in a method of receipt dangerous to passers by, and an injury occurred, his employer is responsible.

This was not an act of Muller outside of his employment; he was engaged in the very act for which he was sent, viz.: receiving the goods.

He knew that it was dangerous to receive them in that way, and he undertook to guard against that danger, and because he did not do so the accident occurred.

Muller’s relations to the defendant were not changed because he assented to this dangerous method of receiving the goods at the suggestion of Fisher’s servant. He was engaged in their receipt, and it was for the purpose of receiving these goods that he was sent.

It would seem, therefore, that the defendant was responsible for his negligence.

The judgment and order appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concur.


text:
    Imogene F. Weeks and Sarah M. Scudder v. Mary E. Frost et al.

      (Supreme Court, General Term, First Department,

      Filed March, 31, 1887.)

    1. Wills—Construction of—Intention of testator.
    In the construction of a will, the intention of the testator is to govern, and it must be gathered from the whole instrument and from the instrument alone.
    2. Same—Effect of codicils.
    Codicils are additions, to be read as part and parcel of the original will, for the publication of the codicil is a republication of the will itself, as modified by the codicil.
    8. Same—Provisions in lieu of dower—Effect of election.
    Where in a will there are devises or bequests to the wife of the testator, in lieu of dower, by her election to take her dower by operation of law, she deprives herself of the benefits which she might have derived under the will.
    Appeal from judgment in action of partition.

      A. J. Vanderpoel & Fred. W. Hinriehs, for def’ts and app’lts; Joseph A. Burr, Jr., for pl’fts and respts; William H. Hurd, Jr., for defendant, Weeks, resp’t.
   Van Brunt, P. J.

It is not necessary to cite authorities to sustain the elementary principle which are to govern the courts in the construction of a will.

The intention of the testator is to govern and such intentic n must be gathered from the instrument, and from the instrument alone.

In cases of codicils such additions are to be read as part and parcel of the original, as the publication of the codicil is a republication of the will itself as modified by the codicil.

The apparent discrepancies which have crept into the adjudicated cases in which wills have been construed do not in any way impair the obligation of these rules of construction, but such discrepancies have arisen entirely in the application of these rules to the ever varying facts of individual cases.

The question then, is what was the intention of the testator as it is to be gathered from his will and codicil in respect to the provisions therein made for his wife.

Were all the provisions intended to be in lieu of dower ■or was the provision made for her in the sixth clause only intended to be in lieu of dower?

The only foundation for the latter claim is that the clause in question happens to be situated at the end of a paragraph of the will, numbered sixth, and in that sixth paragraph the testator happens to have made a provision for his wife.

After devising certain leasehold and other property to his wife for life with remainder over, the testator provides as follows by a separate and distinct clause:

The provisions that I have herein made for my wife, Mary E. Erost, are made and are to be taken and received by her in lieu and bar of her dower in my estate and not otherwise.”

Did the testator by the words, “the provisions herein made,” refer to his whole will or only to the sixth clause.

In the first place it is necessary to observe that in the sixth clause, “ provisions” were not made for the wife, but a provision which seems to clearly indicate that when the testator used the words, “provisions herein made,” he intended to refer to all the provisions which he had made in his will for his wife.

This view is much strengthened by the language used by the testator in the codicil, where he says that “ this provision for my said wife, in this codicil made, is made in addition to the provisions for her made in my said will,” evident by referring to the provision contained in the sixth clause of the will and to the provision in the twelfth clause, these constituting the provisions made for his wife in his will, treating these all alike, and making no distinction, the evident effect of the codicil being to increase the provisions made in the twelfth clause of the will for the wife from $25,000 to $55,000.

The manner in which the testator has disposed of his estate shows that he had no idea that Ms wife would claim dower, but the whole will is based upon the supposition that the widow would take the provision made for her in the will in lieu of dower, and that he had made it for her advantage to do so.

It appears that if the provision in the sixth clause was the only one intended to be in lieu of dower, it was greatly for the interest of the widow to elect to take her dower, and such an election was evidently not contemplated by the testator. He disposes of the residue of his estate absolutely without reference to his wife’s dower, and he provides for the sale of his real estate by his executors to raise funds for the provision made for his wife in his will, which sale would have been greatly hampered if the dower of the wife attached.

The claim made by the appellants that the words “herein” and “hereby” are used in other parts of the will, evidently referring to the clauses in which they severally appear, affords no light upon the question before the court, because the words are used in different connections and do not stand in independent sentences.

In the ninth clause, for example, the word “herein” is used in immediate connection with the devise and does not occur in a separate and independent sentence.

The cases of Lewis v. Smith (9 N. Y., 503), Sanford v. Jackson (10 Paige, 266), Church v. Bull (2 Denio, 430), Havens v. Havens (1 Sandf. Ch., 329), are no authority for the appellants view of this question.

In those cases no intention was expressed in the will that the wife should not have dower, and the court declined to compel the widow to elect, because simple inconsistencies in provision were held not enough to compel the widow to elect.

The case of Brown v. Parry (Romillys’ Rotes of Cases), has no application to the case at bar.

Tn the case cited, the annuity was to be accepted in lieu of dower by the express terms of the will.

If the will at bar had said the devise above made to my wife to be accepted by her in lieu of dower, Brown v. Parry would have been a pertinent authority.

The language of the will is essentially different. By a separate paragraph the testator says that the provisions herein made (when only one provision had preceded the clause in question) for my wife, etc., and in a subsequent part of the will other provisions are made for her.

The clause in question has no apparent connection with the sixth paragraph, except that it follows it and is not separately numbered.

It seems to us that the intention of the testator was that all the provisions of the will were intended to be in lieu of dower.

The contention that the codicil is to be construed as not affected by the provisions of the will cannot be sustained. The codicil forms part of the will and is to be read with it, and applying this construction the provision in the codicil is to be read as though it formed part of the twelfth clause the will.

The point that the widow has rejected nothing except the provision in the sixth clause of the will is undoubtedly true as far as matter of words go.

She has elected to take her dower. She has rejected nothing but such election by operation of law has deprived her of the benefit which she might have derived under the will. Consequently by her election of dower she has deprived herself of the right to claim anything under the will and codicil.

The judgment appealed from must be affirmed, with costs to the parties appearing on this appeal, to be paid out of the estate.

Bartlett and Macomber, JJ., concur.


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    Jerome Bernheimer et al., Resp’ts, v. Henry S. Herman et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Bills and notes—Check—Receipt of by agent of creditor—Does NOT EXTINGUISH DEBT.
    The receipt of a check by an agent of a creditor authorized to receive the same, does not operate as an extinguishment or payment of the debt. In order that it may so operate, the check must in due course be actually paid.
    2. Agent—Authority of must be proved to bind principal.
    Where a party claims to bind a principal by the act of an agent, the authority of the agent must be proved.
    3. Check—Payment by—What must be proved.
    Where parties claim that payment of a debt has been made by check, the burden' is on them to show that it has been duly indorsed and paid, and the creditors are not bound by the production on the trial of a check purporting to have been indorsed by them, unless such indorsement is admitted or proved.
    4. Same—Party receiving may return and bring action on debt.
    A creditor may return a check offered in payment of a debt and bring action upon the debt, but where the check has wrongfully come into the hands of the debtor, the creditor is freed from the obligation to return it.
    This action was brought to recover for goods, sold and delivered by the respondents to the appellants.
    The answer was—payment.
    The alleged payment was made by handing a check drawn on the Chemical Bank, payable to the order of the National Suspender Company, the name under which the respondents did business to plaintiffs’ bookkeeper, W. R. Morse, who was in the habit of receiving cash and checks paid at the office, and who receipted the bills for the said check as in payment of bills for goods due from the appellants to the respondents.
    The check was appropriated by Morse to his own use, endorsed by him in the name of the National Suspender Company, “W. R. Morse, attorney,” which endorsement he had no authority to make, and the check was passed by Morse to one Cochrane, who deposited it in the North River Bank, by which it was collected of the Chemical Bank, which latter bank charged the amount to the account of the appellants,' and returned the check to the appellants with their other vouchers.
    The appellants’ account was marked paid in the ledger by Morse, and although the dealings between the parties continued, none of the statements subsequently sent to appellants, according to the usual custom of merchants, contained any reference to the goods mentioned in the complaint.
    Mr. Morse was the bookkeeper and made the entries in the books, but made no entry of this check in the cash book, as cash received, nor upon the check book as a check for deposit, as his duties required him to do.
    In order to balance his books, personal accounts were falsified, and on rendering trial balances, false additions were resorted to, and thus the frauds were not discovered until seven months had elapsed.
    Upon the close of the respondent’s case, the appellants moved to dismiss the complaint, upon the grounds that the claim in suit had been paid, and that the title to the check having passed to the plaintiffs immediately on .its receipt by their agent, their proper remedy was an action for conversion against either Cochrane, the North Biver National Bank or the Chemical Bank, or against all three combined; and at the close of the case the appellants’ attorney asked to go to the jury as to whether the bill was paid, and also as to whom the check was paid to, which motions were denied and a judgment directed from plaintiffs, and from such judgment this appeal is taken.

      Samson Lachman, for app’lts; Francis C. Feed, for resp’ts.
   Van Brunt, P. J.

The appellants claim, amongst other things, that the only evidence on the question of authority of Morse to endorse checks being that of one of the plaintiffs, it was error to refuse to submit the case to the jury.

It is true, that where it is necessary to prove a material fact in a case, and the only evidence having a tendency to establish such fact is that of a party interested, that the opposing party has the right to have the question submitted to a jury, but this rule has no application to the case at bar.

The appellants claim payment by a check payable to the order of the Suspender Company, and the burden is upon the appellants to show that the check has been duly endorsed and paid; and the respondents are not bound by the production of a check purporting to have been endorsed by them unless such endorsement is admitted or proved. It is also a familiar rule of law that where a party claims to bind a principal by the act of an agent, that the authority of the agent must be proved; therefore; in the case at bar, the check in question purporting to have been endorsed by Morse, as attorney for the plaintiffs, the burden was upon the defendants to show his authority.

The next questions to be considered are those raised upon the motion to dismiss the complaint: First, that the claim in suit has been paid; and, second, that the plaintiff’s proper remedy was an action for conversion against either Cochrane, the North River National Bank or the Chemical Bank, or against all three combined, the title to the check having passed to the plaintiffs immediately on its receipt by their agent.

It is somewhat difficult to see why the appellant’s counsel has omitted the defendants from the last proposition.

If Cochrane converted the check, and the North River Bank converted the check, and the Chemical National Bank converted the check, the defendants are equally guilty of conversion in now retaining the check.

If the check was the plaintiffs’ while Cochrane or the North River Bank or the Chemical National Bank held it, it is equally so now, while the defendants hold the same; and the plaintiffs have no greater rights against the first three named than exist in their favor against the defendants.

If no title to the check was conferred upon Cochrane and the banks by the unauthorized endorsement, certainly they could transfer no title to the check to the defendants.

The claim that the plaintiff’s demand has been paid, does, not seem to have any better foundation.

The giving of a promissory-note or a check does not extinguish the debt, but an action may be brought for the recovery of the original debt, the party suing being only required to surrender the check or note upon the trial. Parrott v. Colby, 6 Hun, 55; affirmed, 71 N. Y. 597.

Therefore, the receipt of the check in question by an agent authorized to receive the same, did not operate as an extinguishment or payment of defendant’s debt. Even if the check had been received by the plaintiffs, they had a right to return the check and sue upon the original debt.

The defendants having unlawfully become in possession of the check, the plaintiffs are not required to return the same.

The appellant seems to claim that as if this bill had been paid in cash, Morse would have had the right to receive the same; and although Morse might have converted the money to his own use, the plaintiffs could not have recoveredfrom the defendant. The same result follows, although the bills in question were attempted to be paid by a check drawn to the order of the plaintiffs and paid to the holder of the check, which was un-indorsed by the payee, and to which check the defendants themselves claim the holder had no title.

In support of this proposition is cited the case of Hunter v. Wetsell (84 N. Y., 549), in which case it is distinctly stated that a check in and of itself is not payment, but it may become so when accepted as such ana in due course actually paid; that is, in order that a check may operate as payment, two things must concur, the check must be accepted as payment, and in due course actually paid.

In the case at bar only one of these necessary elements exists. The check in question was accepted as payment, but it has not in due course been paid. The payment of a check drawn payable to oi'der and un-indorsed to a party who has received the same from a person who has stolen the check, cannot be held to be payment in due course.

The case last cited simply recognizes a rule which has been in existence since the origin of commercial paper, and which is fatal to the defendant’s contention in the case at bar.

The judgment appealed from must be affirmed, with costs.

Bartlett and Lawrence, JJ., concur.


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    Goshen National Bank, App’lt, v. William Bingham, Resp’t. William Bingham v. Goshen National Bank.

      (Supreme Court, General Term, First Department,

      Filed March, 31, 1887.)

    1. Bills and notes—Check—Certification of—Import of.
    The certification of a check by a bank is a statement that the bank holds sufficient funds of the drawee for its payment, and applicable thereto, and an agreement that it will retain those funds and pay the check when presented.
    2. Same—Party certifying is estopped thereby as against purchasers FOR VALUE.

      Held, that a bank having certified a check, and a party having relied upon the representation thus made and purchased it, the bank was estopped from retracting that representation.
    3. Same—Title to, passes by transfer

      Held, that it was not necessary in order to confer title upon the holders of the check that it should be endorsed.
    Appeal from judgments entered on report of referee before whom the two cases were tried together.

      Henry Bacon, for app’lt; Carpenter & Mosher, for resp’t.
   Van Brunt, P. J.

It may not be at all necessary to add anything to what has been said by the learned referee in his opinion upon the decision of this case. It may, however, be proper to call attention to the decision of the court of appeals in the case of Cooke v. The State National Bank of Boston (52 N. Y., 96), in which the import of the certification of a check by a bank is distinctly defined. The court holds in that case that the import of the certification of a check by a bank is a statement that the bank holds sufficient funds of the drawer applicable to its payment, and an agreement that it will retain those funds and pay the check when presented.

At the time of the certification of the check in question, the Goshen National Bank put this representation upon the check by its certification, and put the same into circulation. Bingham & Co., by giving Brown $5,000 for that check, relying upon this certification, became the holders for value of this piece of paper containing the representation, and the bank is estopped from now retracting the same to the detriment of Bingham & Co., who acted upon it. It was not necessary in order to confer title upon Bingham & Co., that this check should be indorsed. Freund v. The Importer’s and Trader’s Bank, 76 N. Y., 355.

The delivery by Brown with intent to pass the title to Bingham & Co., conferred such title upon them, and they having taken it upon the faith of the. representation made by the bank in respect to such check, and by which the bank intended to give such check currency and value, and which the bank intended should accompany such check, and having paid full value therefor, without the slightest notice or suspicion of any defense which the bank might have to such check in the hands of Brown, are protected from any such defense; and the bank will not now be heard to impeach their own representation to the detriment of Bingham & Co., who have in good faith parted with their money, relying upon it.

The judgment should be affirmed, with costs.

Brady and Daniels, JJ., concur.


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    New York and Maine Granite Paving Company, Resp’t, v. Alexander J. Howell et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Contract—Breach of—Measure of damages.
    This action was brought to recover damages for a breach of contract in ' neglecting and refusing to pay for granite paving blocks, pursuant to a contract made. Held, that the proper measure of damages was the difference between the contract price and the market price at the time and place of delivery.
    3. Same—Measure of damages—Evidence admissible.

      Held, that the evidence in such a case was not confined to the market price at the precise time and place of delivery, but where it was impracticable to show this, evidence of the price for a brief period before and after that time, and at places not distant, or in other controlling market, was competent for the purpose of showing the market price at the time and place of delivery.
    3. Same—Refusal to submit question to jury—When erroneous.

      Held, that there being evidence that there was a market price for such stone, it was error to refuse to submit the question to the jury.
    Appeal from judgment entered upon verdict of a jury, aud from order denying motion for new trial on the judge’s minutes.

      W. T. B. Milliken, for app’lts; O. F. Harriman, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for a breach of contract upon the part of the defendant in neglecting and refusing to receive and pay for granite paving blocks pursuant to a contract made between the parties to the action in March, 1882.

The answer denied the failure to perform, and denied that the plaintiff had sustained any damage by reason of the failure to perform. Questions were raised as to what the rights of the parties were, under the contract, which it is not necessary to determine upon this appeal, as the learned court seems to have adopted a mistaken rule of damages.

The court was requested to charge the jury that the measure of damages in this action was the difference between the selling price under the contract and the market price, which was refused, and to which an exception was taken. The court was also requested to submit to the jury the question whether, as a matter of fact, there was a market price for the stone which was refused, and the defendants duly excepted.

These rulings were based upon the assumption that the measure of damage in such a case was the difference between the cost of performing the contract and the price named in the contract to be paid on performance. The proper measure of damages has been laid down in an action upon a contract of this description to be the difference be»een the contract price and the market price at the time and place of delivery, and that the evidence in such a case is not confined' to the market price at the precise time and place of delivery, but, where it is impracticable to show this, evidence of the price for a brief period before and after that time, and at places not distant, or in other controlling market, is competent for the purpose of showing the market price at the time and place of delivery. Cahen v. Platt, 69 N. Y., 348.

Therefore, if there was such evidence as justified the ' submission to the jury of the question as to whether there was a market price for the stone, it was error to refuse to submit such question to the jury; and if the jury found that there was such a market price for the stone, it was error to hold that the measure of damages was the difference between the cost of production and the contract price.

The evidence upon the part of the plaintiff showed that during all the months throughout the year the average production per month of their factory was about 300,000 blocks, sufficient to comply with their contract with the defendants, and that the blocks made for tjie city of New York were all about the same pattern, and that these blocks were always kept on hand to supply orders at short notice, and that large stocks of blocks were carried over from year to year; that the blocks in question were not made for the defendants specially, but that they were made for everybody, and that they were supplied to various persons at various prices during the season.

This testimony would seem to have sustained a finding by the jury that there was a market for this stone during the season of 1882, and there being such a market, the measure of damage would have been as already stated, the difference between such market price and the contract price.

Our attention has been" called to the rule established by any competent authority which justifies the application of the rule of damages laid down in the case at bar. Under the circumstances presented by the evidence it seems to have been error to have refused to submit the question to the jury as to whether there was a market for stone of the kind referred to in the contract during the season of 1882.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Brady and Daniels, JJ., concur.