text:
    GEORGE A. HAYNES and FRANK E. HAYNES, Appellants, v. JOHN I. BROOKS, Individually, and DAVID S. BROWN, as Assignee, etc., Respondents. AMASA SPRING and CYRUS HAYNES, Appellants, v. SAME, Respondents.

      General assignment —firm creditors may be, preferred to individual creditors — the surimvng partner may malee a general assignment — debts contracted by a surviving partner a/re Ids individual debts.

    This action was brought by the plaintiff, as a judment creditor of the defendant Brooks, to set aside, as fraudulent, a general assignment made on March 3, 1884, by the defendant Brooks as the surviving partner of a firm composed of himself and one Edward Brooks, who died in September, 1883. The assignment, which contained preferences, included so much of the partnership stock as still remained undisposed of arid such further goods as the assignor himself had purchased and added to the stock, during this intervening period, which still remained unsold.

      Held, that an objection to the validity of the assignment, on the ground that the assignor could not devote his own individual property to the payment of debts owing by the firm, of which he had been a member, could not be sustained

      Kirby v. Schoonmaker (3 Barb. Chy., 46;; Eurlberi v. Kean ( 3 Abb. Ct. of App., 439) followed.
    That the assignor, as surviving partner of the firm, had authority to make it and to include therein the property of the preceding firm.

      EmersonY. Senter (118 U. S., 3); Williams Y.lVhedon{39 Hun, 98) followed.
    After providing for the payment of the preferred debts, the assignor directed that the assignee should pay and discharge the other debts owing by the firm of John I. Brooks & Co., or against the assignor, as the survivor thereof.

      Held, that an objection that the assignment did not provide for the payment of the individual debts of the assignor, was not well founded, as, whatever debts were contracted by him since the dissolution of the firm were his individual debts, and describing himself as the survivor of the firm did not change their character or affect his liability upon them.

      O'Neil v. Salmon (25 How., 346); Crook v. Bindsleopf (34 Hun, 457); and Oollomb v. Caldwell (16 N. Y., 484) distinguished.

      Appeal from a judgment in favor of the plaintiff, recovered on a trial of this action at a Special Term.

      George IF. Van Slyck, for the appellants.

      Franklin Paddock, for the respondents.
   Daniels, J.:

The action is prosecuted by the plaintiffs, as judgment creditors, to set aside as fraudulent a general assignment by the defendant, John I. Brooks, for the benefit of creditors. He was the surviving partner of the firm composed of himself and Edward C. Brooks, deceased. His partner died in September, 1883, and he himself carried on the business until this assignment was made on the 3d of March, 1884. It included so much of the partnership stock as still remained undisposed of, and such further goods as the assignor himself had purchased and added to the stock during this intervening period, and still remained unsold. By the assignment, preferences were made which were directed to be paid out of the proceeds of the assigned property, and the plaintiffs have objected to the legality of the assignment on the ground that the assignor could not in this manner devote his own individual property to the payment of debts owing by the firm of which he had been a member. But this objection cannot be sustained for the reason that the law permits a partner to appropriate his own individual property, as well as that of the firm, to the payment of partnership debts. This was considered and held in Kirby v. Schoonmaker (3 Barb. Ch., 46), and that principle was followed in Hurlbert v. Dean (2 Abb. Ct. of App., 429). It was also considered the law in Egberts v. Wood (3 Paige, 517, 526), and Shanks v. Klein (104 U. S., 18), seems to have proceeded upon the same understanding.

A further objection taken to the assignment is that the assignor, as surviving partner, had no authority to make it and include in it the property of the preceding firm. But this has been held otherwise in the case of Williams v. Whedon (39 Hun, 98), and in the still more recent case of Emerson v. Senter (118 U. S., 3). And these decisions, to some extent, certainly reduce the force and effect of Nelson v. Tenney (36 Hun, 327), which, however, did not dispose of the point now being considered.

A further objection to the assignment is that it has not provided for or directed the payment by the assignee of the individual debts owing by the assignor. But that, as a matter of construction, seems to be a misapprehension, for the assignment by its fourth paragraph directs the assignee not only to pay the other debts owing by the firm of John I. Brooks & Co., but also the debts against the assignor as the survivor of that firm. And this direction does include his individual debts; for, whatever may have been contracted by him since the dissolution of the firm, were his individual debts as the surving member, and describing himself as the survivor of the firm did not change their character or his liability upon them. Under this direction it would be the duty of the assignee to pay, not only the remaining debts of Brooks & Co., but also such debts as should be found to be owing from the assignor himself. The cases of O’Neil v. Salmon (25 How., 246) and Crook v. Rindskopf (34 Hun, 457), are entirely distinguishable from this point presented by this appeal. And so is that of Collomb v. Caldwell (16 N. Y., 484), inasmuch as the assignment does authorize and make it the duty of the assignee to pay all the debts of the assignor, whether owing by the firm or by him individually. And the obligation, after such payments, if the estat-e should prove sufficient for that purpose, is imposed by law of returning the surplus to the assignor. The case was disposed of at the trial, as the law required that to be done, and the judgment in this action, as well as in the other case heard with it, of Spring v. Brooks, should be affirmed.

Davis, P. J., and Bract, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Daniels, J. :

license: Public Domain

text:
    FREDERICK N. HAMLIN, Respondent, v. ELISHA R. WHEELOCK, Appellant.

      Contract — when invalid because not supported by any legal consideration.

    By an agreement entered into between the parties to this action the defendant agreed to pay to the plaintiff two dollars and fifty cents on each and every 5,000 bushels of grain purchased and sold, or sold and purchased, in the course of the defendant’s business, to any customer or customers who should he introduced to him hy the plaintiff, or by either of the persons so introduced.

      Held, that so far as the contract provided for the payment of the amount specified for the act of the plaintiff in introducing customers to the defendant, it was valid, as this was an act of service performed hy the plaintiff, beneficial to the defendant, which the law will permit to operate as a legal consideration.
    That, in so far as it provided for the payment of the amount specified, in the case of persons introduced to the defendant by the dealers introduced to him by the plaintiff, it imposed no legal obligation upon the defendant, as there was no legal consideration for his promise to pay, since any benefit he derived therefrom was in no way dependent upon the act, authority, direction or concurrence by the plaintiff, nor did the latter subject himself to any inconvenience or injury.
    Appeal from ail interlocutory judgment, entered upon tlie trial of this action before a referee.

      George W. Van Slych, for the appellant.

      John L. Branch, for the respondent.
   Daniels, J. :

The interlocutory judgment directs an accounting of the purchases and sales of grain made by the defendant, to ascertain the amount payable to the plaintiff out of the proceeds of such sales, under an agreement alleged in the complaint, and found to have been proven by the referee. The evidence was in conflict as to the making and terms of the agreement, but it was sufficiently favorable to the plaintiff to support the referee in his conclusion that the agreement was made as the plaintiff’s testimony tended to establish the fact to be. By this agreement, as it was found to have been proven, the defendant agreed to pay to the plaintiff two dollars and fifty cents on .each and every 5,000 bushels of grain purchased and sold, or sold and purchased, in the course of the defendant’s business, to any customer or customers who should be introduced to him by the plaintiff, or by either of the persons so introduced, and the accounting directed by the referee is as broad as this contract is found to have been made between the parties.

The referee has also found, upon proof, which was ample for that purpose, that the plaintiff did introduce to the defendant, two persons who dealt with him in the purchase and sale of grain, arid upon whose transactions the plaintiff was entitled to these commissions; for the act of introducing these customers to the defendant was a legal consideration to that extent, for the agreement entered into by the plaintiff. It was an act of service performed by the plaintiff, 'beneficial to the defendant, which the law will permit to operate as a legal consideration. ( White v. Drew, 56 How., 53.) And the referee was right in directing an accounting to take place to ascertain the extent of the dealings of these parties with the defendant, upon which the plaintiff was entitled to recover such commissions.

But, as to the persons introduced to the defendant by either of the dealers introduced to him by the plaintiff, a very different case is presented, for no act of service whatever was performed by the plaintiff in their introduction to the defendant, or by which they were induced to deal with him in the course of his business. As to those individuals the’ plaintiff in no manner.or way interfered. He performed no act, subjected himself to no inconvenience, and conferred no benefit upon the defendant; but whatever was done in the way of securing them as customers was done by other persons, who were not acting for, or in behalf of the plaintiff, or at his instance. What they did was done independently of the plaintiff, and could not legally form a consideration for the payment by the defendant to him of this commission. These persons became customers of the defendant of their own volition, influenced, it is true, so far as an introduction could influence their action, by the persons introduced to the defendant by the plaintiff. But what took place was in no manner dependent upon the act, authority, direction or concurrence, of the plaintiff. And in that state of the relation of these parties, the dealings of these customers with the defendant formed no consideration for an agreement on his part to pay to the plaintiff commissions. He conferred as to them no benefit upon the defendant, neither did he subject himself to any inconvenience or injury, by reason of the fact that these persons were secured as customers for the defendant. And when that may be the fact, no legal consideration will exist for the support of a promise of the description of that found by the referee, relating to the business of these customers with . the defendant, who were introduced to him, not by the plaintiff, but by the persons he had introduced, acting solely and exclusively in obedience to their own inclinations. For to create a legal consideration which will support a promise, there must be at least some benefit conferred upon the one party, or some injury or inconvenience sustained by the other. (Ainsworth v. Backus, 5 Hun, 415 ; Freeman v. Freeman, 43 N. Y., 34, 39.)

Before the commencement of the action the plaintiff had received from the defendant the sum of $300 on account of the commissions, and upon the understanding that this was all he was entitled to out of these dealings of the defendant he executed and delivered to him a receipt in full. This proved to be .a misapprehension, as the fact is found to have been known at the time to the defendant himself. The plaintiff acted under this misapprehension in giving the receipt. There was, as the referee has found the fact to be, a larger amount due to the plaintiff than the sum he so received, and, under this state of facts, the referee was right in concluding the receipt not to form a legal defense against the plaintiff’s action. It. was open, as receipts usually are, to explanation, and by that which was given it was made to appear that the plaintiff was not bound by it beyond the fact that it was evidence that he had received this sum of $300. There was no consideration whatever for the statement that it was received in full, and under the misapprehension existing, which was known to the defendant not to be correct, he could not insist upon the receipt itself as a legal defense to the action. The judgment from which the appeal has been taken should be modified so far as to restrict and limit the accounting to the commissions arising out of the dealings with the defendant, of the persons introduced to him by the plaintiff, and as so modified it should be affirmed, without costs to either of the parties.

Davis, P. J., and Beady, J., concurred.

Judgment modified as directed in opinion, and affirmed as modified, without costs to either party.


author: Daniels, J.:

text:
    FALL BROOK COAL COMPANY, Respondent, v. RICHARD HECKSHER, Jr., Appellant.

      Contempt of court— actual loss or injury must be proved, to support afine to indemnify the party injured., imposed under section 2281 of the Code of Civil Procedure — when afine imposed under section 2281 cannot be changed on appeal to a fine for punishment — proper order to be entered in such cases.

    Upon the failure of the defendant to appear and answer, as he was required to do by an order made in supplementary proceedings, he was adjudged to be in contempt, and fined the sum of $834.68, the amount of the judgment, and ten dollars costs.

      Held, that as it was not proved that the plaintiff had sustained actual loss or injury, or had been deprived by the misconduct of the defendant of the amount of his judgment, there was no foundation for imposing this fine.
    That although the court had power to impose, in addition to the fine for indemnity, a further fine by way of punishment, not exceeding the sum of $250 and costs and expenses, yet, as it had not exercised this power in this case, the appellate court could not reduce the fine to the amount, or any portion of the amount which might have been prescribed by way of punishment.

      Erie Railway v. Ramsey (45 N. Y., 637), and DeJonge v. Brenneman (23 Hun, 832) distinguished.
    That the court should have fined the defendant, by way of punishment, in a sum not exceeding $250, in addition to the plaintiff’s costs and expenses, and have directed his imprisonment until he should appear and submit to an examination concerning his property, and pay the fine with the costs imposed upon him.
    Appeal from an order, made at a Special Term, adjudging the defendant in contempt, and fining him the sum of $831.63, with ten dollars costs.

      James L. Bishop, for the appellant.

      Grane cié LooTcwood, for the respondent.
   Daniels, J.:

The defendant failed to appear and answer, as he was required to do by an order made in supplementary proceedings, and that failure was repeated on a second occasion. It was for that he was required to show cause why he should not be punished for his contempt. And, as he was shown by the affidavits to be clearly in contempt, he was legally liable to punishment for that cause. But -while the order recited that his misconduct did actually defeat, impair, impede or prejudice the rights of the above named plaintiff, as it was required it should do, by section 2281 of the Code of Civil Procedure, it did not follow, from that circumstance alone, that he was liable to be fined, as he was, the amount of the judgment which had been recovered against him. For the degree of punishment to be inflicted has been limited, by section 2281 of the same Code, to a fine sufficient to indemnify the aggrieved party for any- actual loss or injury produced by the misconduct. And, as it was not proved by the affidavits that the plaintiff had sustained actual loss or injury, or had been deprived by the misconduct of the amount of his judgment, there was no foundation for imposing this large fine upon him. To sustain the imposition of a fine for loss or injury, the fact of the existence of the loss must first be proved by legal evidence. Without such proof, no authority exists for fining the delinquent party to compensate such loss. (De Jonge v. Brenneman, 23 Hun, 332.) And the fine in this case was imposed, not by way of punishment, but wholly by way of indemnity, and for that it is devoid of all legal foundation.

The court had the further power, in addition to that authorizing a fine for indemnity, to impose a fine upon the defendant by way of punishment, not exceeding the sum of $250, in addition to the costs and expenses.

But that power was not exercised in this case. No fine was imposed upon him by way of punishment' for his misconduct, but it was wholly for the purpose of indemnity, and the court accordingly cannot reduce the fine in this instance to the amount, or any portion of the amd’unt, which, under this part of the same section, might have been prescribed by way of punishment for the defendant’s misconduct.

A reduction in the fine in a proper case may undoubtedly be made, as was done in Erie Railway Company v. Ramsey (15 N. Y., 637, 655), and De Jonge v. Brenneman (supra). But there the fines which were imposed were in part supported by the facts, while here the fine is wholly unsupported by the facts made to appear upon the hearing. For it was entirely devoted to the object of indemnifying the plaintiff against loss or injury, when no loss or injury whatever was made to appear. What the court should have done in this condition of the evidence, was to have fined the defendant, by way of punishment, in a sum not exceeding the amount of $250, in addition to the plaintiff’s costs and expenses, and then direct his imprisonment, as that has been prescribed by section 2285 of the Code, until he should appear and submit to an examination concerning his property, and pay the fine with the costs imposed upon him. That authority was not exercised in any form, and, accordingly, the case presents no ground for modification, but it is one wholly for reversal.

The order which was made should be reversed with the usual costs and disbursements, and the case should be remitted to the Special Term for a further hearing, there to be proceeded with in conformity with this opinion.

, Davis, P. J., and Br'ady, J., concurred.

Order reversed, with ten dollars costs and disbursements, and case remitted to Special Term.


author: Brady, J.: Daniels, J.: Davis, P. J.:

text:
    HENRY A. ROOT and NEWELL MARTIN, Respondents, v. FREDERICK P. OLCOTT, as Receiver of the WALL STREET BANK, Appellant.

      Cashier of a ’bank — he may employ an attorney to collect a claim without any resolution of the boa/rd of directors, although that boa/rd has appointed an attorney and counsel to attend to its legal affairs.

    Upon the trial of this action brought to recover, from the receiver of the "Wall Street Bank, a sum claimed to be due for services rendered by the plaintiffs, as counsellors-at-law, it appeared that the cashier of the bank had, without any resolution of the board of directors, and without the knowledge of any of the officers of the bank, retained the plaintiffs to collect certain claims, and that the plaintiffs, under this retainer, rendered services and made disbursements; that in many matters they acted under the direction of th^ general counsel of the bank, who, it appeared, were to some extent authorized to control the movements of the plaintiffs, and who ultimately took upon themselves the management of these claims as well as of the other affairs of the bank.

      Held, that the act was within the scope of the general authority of the cashier, and that he was authorized, without any formal vote of the board of directors, to employ attorneys to collect the claim. (Per Brady and Daniels, JJ.; Davis, P. J., dissenting,upon tbe ground that where the bank has its duly authorized attorney and counsel, appointed by the board of directors, to take charge of its land, business and affairs, the cashier has no general authority which empowers him to retain other attorneys or counsel for the bank at his discretion or pleasure.)
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

      Edward H. Hobbs, for the appellant.

      Jr a J). Warren, for the respondents.
   Brady, J.:

This action was brought to recover from the receiver of the Wall Street Bank a 6um claimed to be due for services rendered by the plaintiffs as counsellors-at-law, and upon a retainer of the Wall Street Bank before its dissolution. The questions involved are, first, whether the plaintiffs were retained by the Wail Street Bank in such manner as to make that corporation liable, and if yea, what was the value of the services rendered.

It appears from the record that the plaintiffs, prior to August 13, 1883, were the attorneys of Cecil, Ward & Co., and as such had commenced a suit against one Ducker. On that day the firm just named failed, heavily indebted to the bank, but having large claims against one Stedman, one Saunders and others, the failure of the firm being caused by Stedman. On the next day, namely, August 14, 1883, the plaintiff Root went to the Wall Street Bank and saw the cashier, John B. Dickenson, with whom he had a conversation about the assets of Cecil, Ward & Co., and* the result seems to have been that Mr. Dickenson, who appears to have had entire charge of the relations of the bank with the broken firm, effected an arrangement by which Cecil and Ward turned over to the bank all their assets, including the claims against Ducker and the Stedmans; when, according to the testimony on behalf of the plaintiffs, the latter were by Mr. Dickenson directed to collect or prosecute the claims for the bank, for which services the bank would pay them. The plaintiffs, upon this retainer, rendered services and made disbursements, acting in many matters under the direction of Messrs. Shearman and Stirling, the general counsel of the bank, who, it seems, were to some extent authorized to control the movements of the plaintiffs, and who ultimately took upon themselves the management of these claims as of the other affairs of the bank. It is not understood that there is any dispute as to the retainer in the manner stated, the contention being that the cashier had no authority to bind the bank unsupported by the concurrence of the directors, either by resolution or knowledge of and acquiescence in the acts of the plaintiffs in behalf of the bank.

As will have been observed from the statement of facts just made, the cashier retained the plaintiffs without authority by any resolution of the board of directors and without the knowledge of any of the officers of the bank. Was it within the scope of the general authority of the cashier to employ an attorney for the purpose of collecting outstanding claims due the bank? If it was, then the liability of the bank was established beyond peradventure, inasmuch as the evidence warrants the finding as to the retainer, and there is no reason, therefore, for interfering in the conclusion expressed in that regard.

The power and authority of a cashier have been stated, discussed or defined in many cases. “He is,” said Justice Swayne, “the executive officer through whom the financial operations of the bank are conducted. He receives and pays out its moneys, collects and pays its debts, and receives and transfers its financial securities.” (Merchants Bank v. State Bank, 10 Wall, 604, 650; see, also, to the same effect, Bridenbecker v. Lowell, 32 Barb., 9, 17; Wallace v. First Parish in Townsend, 109 Mass., 263.) It has also been quaintly observed that, contrasted with the directors, he was the hands and they the mind of the corporation. And, again, the directors have been likened to the judge and the cashier to the clerk of the court, the former adjudicating and directing, and the latter executing the mandate. (Chemical Bank v. Kohner, 8 Daly, 530.) And it has also been said not only that much of his authority must be implied from the nature of his business, its necessities, its customs and usages (Farmers and Mechanics' Bank v. B. and D. Bank, 26 How. Pr., 5, 6, 7), but that for many purposes the officers and agents of the corporation, of which he is one, may employ persons to perform services for it; and such employment being within the scope of their duty, binds the corporation. (Hooker v. Eagle Bank, 30 N. Y , 85.) And it has been expressly declared that a managing officer or cashier has authority, without a formal vote of the board of directors, to employ counsel. (Taylor on Priv. Corp. Having Capital Stock, § 202; Wallace v. First Parish in Townsend, supra.) To the same effect, see American Insurance Company v. Oakley (9 Paige, 496); Peterson v. The Mayor (17 N. Y., 449); Mumford v. Exchange Bank (5 Denio, 355, 359); Bristol Bank v. Keavy (128 Mass, 398); Frost v. Domestic Sewing Machine Company (133 id., 563); Western Bank r. Gilstrop (45 Mo., 419); Southgate v. Atlantic and Pacific Railroad (61 id., 89, 94).

In Wallace v. First Parish in Townsend (supra) it was said of the treasurer of the parish that it was his duty to collect the notes and other securities belonging to the parish, and that he had the incidental power to commence a suit on them, and for this purpose to employ counsel. And in Bristol Bank v. Keavy (supra) it was held that it would be a great obstacle to the management of savings banks and other corporations if no suit for the collection of a debt could be instituted except by a vote of the directors or trustees; and, indeed, in all' the cases cited the power was recognized and commended or approved, as it should be.

It would be a very easy task to array a variety of reasons why such a power should not only be regarded as incidental, but indispensible for the protection of the property of corporations. Its abuse, if any should exist, can be speedily remedied by the removal of indiscreet officers. The reported cases falling into line on this subject could be multiplied if necessary.

There are a. series of decisions, it is true, which would seem to militate against the existence of the power mentioned, but they do so, if at all, only inferentially. Por example, a cashier has no power to assign or transfer non-negotiable paper without authority of the directors, duly given (Barrick v. Austin, 21 Barb., 241); or to make an agreement that an indorser of a promissory note shall not be liable (Bank of U. S. v. Dunn, 6 Peters, 51) ; Bank of Metropolis v. Jones, 8 id., 12; Bank of Whitehall v. Tisdale, 18 Hun, 151; affirmed 84 N. Y., 655); or, by reason of his official position, to bind the bank as an accommodation indorser ( West St. L. Savings Bank v. Shawnee Co. Bank, 95 U. S., 557); or to settle an account, taking private notes and drafts and giving a receipt in full (Sandy River Bank v. Merchants' Bank, 1 Biss., 146); or to bind the bank by a bond of indemnity to the sheriff to save him harmless in executing process in favor of the bank (Watson v. Bennett, 12 Barb., 196); or to bind the bank as a gratuitous bailee. All these prohibitions, however, clearly do' not relate to powers incidental to the authority to collect the debts of the bank. They relate to the disposition of its property absolutely or by compromise, or to contracts absolute and independent in themselves and totally distinct from that which is designed to insure such collection, and undoubtedly not within the usual duties of the cashier, discharged without special resolution of the directors. The power and duty to collect necessarily include authority to set the legal machinery in motion to accomplish that result, and debts, it may well be conjectured, must be lost if, in some emergency requiring the utmost dispatch, the cashier could not act until the board of directors crept together to debate and to decide upon what was to be done.

The first question is thus successfully answered for the plaintiffs, and renders the discussion of a collateral proposition unnecessary, namely: "Whether, if the cashier exceed his authority, the bank was not liable on an implied contract, about which much may be said in favor of the plaintiffs.

The remaining question is whether the plaintiffs were entitled, on the proofs given, to the amount awarded by the referee. From an examination of the evidence bearing on this subject, the conclusion has been reached that the whole amount of the claim should not have been allowed. The statements of the plaintiffs are not in entire harmony, and their. difference leads to uncertainty. The services rendered as to the Ducker claim were in part performed before the retainer by the bank, and there should be no doubt that the sum earned in that way was deducted from the claim. It was variously estimated at from fifty to one hundred and twenty-five dollars. It is true the plaintiff’s insist that Mr. Sanxay, who was examined on behalf of the defendants, is a hired expert; but if so, that does not justify the inference of partiality. He seems to have testified cautiously and with the intention of giving to the plaintiffs all they deserved. The amount they claim rests, it must be said, upon their evidence, and although a lawyer may be the best judge of the value of his own services, he may nevertheless under or overestimate it, and his judgment cannot in all cases be regarded as conclusive. Here the impression left on the mind, in consideration of all the proof on the subject, is that the sums stated by Mr. Sanxay, in all amounting to $960, should have been adopted by the refereé, in addition to the disbursements proved to have been made, namely, $61.41, making in all $1,021.41.

The judgment should be modified, therefore, by reducing the finding to that amount and interest thereon, and as so modified the judgment should be affirmed, without costs to either party.

Daniels, J.:

On the theory maintained as to the effect of the evidence, there should be a new trial. But it was in conflict on the subject of value, and the referee does not seem to have erred in following that given for the plaintiffs, and that entitles them to an affirmance.

Davis, P. J.:

Where a bank has its duly authorized attorney and counsel appointed by the board of directors to take charge of its law busi ness and affairs, the cashier has no general authority which empowers him to retain other attorneys or counsel for the bank at his discretion or pleasure. The action of the board of directors in appointing the attorney and counsel of the bank takes away from the cashier all implied authority to do the same thing with respect of any portion of its business.

Where a cashier, under such circumstances, has assumed to employ another attorney, it must be shown that his act has been recognized or approved by the board in some form that amounts to a ratification of the act. I dissent, therefore, from the opinion of the court and its conclusion, but as my brother Daniels is for affirmance and my brother Brady for affirmance with a modification, I concur in the modification proposed by my brother Brady, which will result, therefore, in an affirmance of the judgment as modified.

Judgment modified as directed in opinion, and affirmed as modified, without costs.


text:
    In the Matter of the Petition of CHARLES LEWIS and Others for leave to be made Parties Plaintiff in the Action of ISAAC BIERMAN and Others v. LEWIS C. HAKE and Others.

      Action to compel an accounting by a general assignee — right of other creditors to come in after judgment and prone their claims — they cannot be compelled to contribute their share of the costs and expenses — costs and expenses of plaintiff, how paid.

    After an action, brought by a judgment creditor to compel a general assignee to account, had been sent to a referee to take and state the accounts of the assignee and ascertain the amounts due and owing to the creditors of the debtor, other creditors applied for an order allowing them to intervene and be made parties plaintiff.

      Held, that the application was properly denied, as it was not necessary that the applicants should he brought into the action as additional plaintiffs, as the action, though brought by one creditor, was in reality for the benefit of all the other creditors as well as for himself, the judgment in such actions being uniformly required to provide for bringing in all the other creditors and affording them an opportunity to present and prove their demands and participate in the distribution of the estate under the final judgment.
    A provision in a judgment entered in such an action, imposing as a condition upon which creditors were to be allowed to come in and prove their claims, that they should contribute their proportion of the costs and expenses of the action to be settled by the referee, is unauthorized and will not be enforced.

      It seems, that in such a case a proper allowance for the costs and disbursements of the plaintiffs will be made in the final judgment to be paid out of the fund.
    Appeal from an order denying the application of the above-named petitioners to be allowed to intervene and be made parties plaintiff in an action mentioned in the title between Isaac Bierman et al., plaintiffs, and Lewis C. Hake et al., defendants.
    On the 3 5tli of November, 1883, Lewis C. Hake and Joseph A. Hake made a general assignment for the benefit of creditors to William H. Zeltner. In tbe month of February, 1885, the above-mentioned Isaac Bierman et al., creditors of these assignors, brought an action in this court against the surviving assignor and the assignee Zeltner for' an accounting. The assignee only answered. On the 13th of October, 1885, an order was made referring it to Marcus Stine to take and state the account of tbe assignee and, also, the amount due and owing to each of the other creditors of the assignors, “ who shall come in under this order, seek the benefit of this action and contribute to the costs and expenses thereof, such contribution to be settled by the said referee. * * * Such persons, not parties to this action, who shall come in before the said referee to prove their debts shall, before they are admitted as such creditors, contribute their proportion of the costs and expenses of this action to be settled by the said referee.” In the latter part of May, 1886, the petitioners asked leave to be made parties plaintiff and to intervene.

      Nathan Leiois, for the petitioners, appellants.

      Blumenstiel c& Hirsch, for the respondents.
   Daniels, J.:

While it is true that the applicants, as creditors, are interested in the proceedings taken by the plaintiffs in the action to settle the affairs of the assignee for the benefit of creditors, it was still not necessary that they should be brought into the action as additional plaintiffs under the authority given for that purpose by section 452 of the Code of Civil Procedure. The action has proceeded to judgment, and an accounting has been directed and liberty secured to the other creditors to present and prove their accounts. To open the case and add the petitioners as plaintiffs in the action would be to complicate and prolong the litigation without securing any adequate benefit. The rights of all the parties can be as well considered and determined without bringing in additional plaintiffs in the action, as they could be if all the creditors had joined in the action.

In this class of cases the action when brought by one creditor is in reality for the benefit of all as well as himself, and the judgment for the accounting is uniformly required to provide for bringing in all the other creditors and affording them an opportunity to present and prove their demands and participate in the distribution of the estate under the final judgment, and by that judgment all their rights and interests will be declared and protected and a proper allowance made for the costs and disbursements of the plaintiffs in the action. The practice upon this subject was clearly explained in Kerr v. Blodgett (48 N. Y., 62, 67), and by following it every possible chance of injustice to either of the creditors will be excluded.

It is true that the judgment in this action, by its language, imposed conditions upon the creditors which the practice required to be followed does not sanction. But as they were not parties in fact to the judgment at the time when it was directed, they cannot be bound by these directions. The plaintiffs had no authority for imposing upon other creditors the payment of any part of the costs or disbursements in the action, as a condition to their right to appear and present and prove their claims. The action could not be carried to a.successful determination without affording the other creditors full liberty to present and prove their claims, without subjecting them to the payment of ,any costs or disbursements whatever. It was the purpose of the litigation to bring in all these parties and to afford them an opportunity to be heard in support of their claims, before a final judgment can regularly be reached, and that the law, notwithstanding the form in which the judgment has been entered, must secure to each of the creditors. If either should be excluded from the right to present and prove his demand without first paying a portion of the plaintiff’s costs, no final judgment in the action could be recovered until the erroneous direction excluding the party for that reason should be corrected. As the case has been presented, this right of the creditors to prove their claims, without being restricted as to the terms on which they may come into the case, should be as it has been declared by the court. It will expedite the litigation and prevent embarrassment in finally closing up the estate, and, in the end, whatever costs the plaintiff may be entitled to will be provided for out of the fund benefited and distributed by the proceeding.

The order as it was made was accordingly right, and it should be affirmed, but without costs.

Davis, B. J., and Bradv, J., concurred.

Order affirmed, without costs.


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    In the Matter of the Petition of JACOB LORILLARD, Respondent, v. HORACE BARNARD, an Attorney-at-Law, Appellant.

      láen of an attorney upon moneys collected under a judgment— when he may retain therefrom the amount due to him for services rendered in other proceedings.

    Upon an appeal from an order directing a reference to take proof and report how much of a sum of $9,818.35 an attorney was entitled to retain as compensation for his services in an action, it appeared that the action in which the money was collected was prosecuted under an agreement entered into between himself and the- plaintiff, by which the latter agreed, in lieu of paying fees, that the attorney should prosecute that and other suits for one-fourth of the net amounts which should be recovered on the judgments. In addition to the one-fourth which he was by the agreement entitled to retain, the attorney claimed to retain the residue upon the ground that he had been employed in other legal proceedings, and had rendered services and made disbursements in them for the plaintiff, and also that the plaintiff had violated his agreement with the attorney concerning legal proceedings in other actions covered by the agreement, and thereby rendered himself liable for the damages which the attorney had sustained.
    Held, that the attorney had no right to reserve or retain the said moneys to secure the payment of any damages arising out of- the failure of the plaintiff to perform his contract, but that he was entitled to retain the amount due to him for the services performed and the disbursements made in the legal proceedings for which he had not already been compensated.

      Williams v. Ingersoll (89 N. Y., 508) distinguished.
    Appeal from an order directing a reference to take proof and report how much of a sum of $9,818.35 an attorney was entitled to retain as compensation- for his services in an action in the City Court of Brooklyn.

      Horace Bwrnard, appellant, in person.

      Asa Bird Gardmer, for the respondent.
   Daniels, J.:

The action wherein the money was collected was prosecuted by the petitioner, as plaintiff, against William T. Clyde and another, as surviving partners. The judgment was recovered for the sum of $30,165.54, and it has all been collected by the attorney except the sum of $2,415.55. The object of the petition and the proceeding, instituted by it was to obtain an order requiring the attorney to pay over so much of the amount received by him as the petitioner was entitled to receive. The action in which the money was collected was prosecuted by the attorney under an agreement between himself and the petitioner, by which the latter agreed, in lieu of paying fees, that the attorney should prosecute this and other suits for one-fourth the net amounts which should be recovered by the judgments. The attorney accordingly was entitled to retain this one-fourth under the authority of this agreement. As to that no controversy seems to exist between these parties. But as to the residue of the money collected upon the judgment, the attorney has set forth, by way of justification for his refusal to pay it over, the fact that he had been employed in still other legal proceedings, and had rendered services and made disbursements in them for the petitioner, and that the petitioner also had violated his agreement with the attorney concerning certain legal proceedings in actions within this agreement, thereby rendering himself liable to make compensation to the attorney for the loss or damages he had so sustained. As to this latter branch of the positions taken by the attorney it is not necessary that any particular time shall be devoted to its examination, for the law has not undertaken to reserve or secure to the attorney a lien upon his client’s papers or money for damages arising out of the non-performance of a contract when no such right shall, by their agreement, be reserved in favor of the attorney. The appropriate mode for recovering such damages is by way of an action, as in other cases where parties fail to perform or observe their agreements.

Bnt as to the services performed and disbursements made in other legal proceedings, for which the attorney has not already been compensated, the case stands upon different grounds. For it has been the object of the law to maintain in the attorney’s favor a lien, or right of detention, of his client’s papers and moneys, until he shall be paid what the latter has become legally bound to pay him for his services and disbursements. This lien, or right of detention, has been urged in behalf of the petitioner, to be restricted to the services performed and disbursements made in the action, in which the judgment itself has been recovered. And Williams v. Ingersoll (89 N. Y., 508) has been relied upon as conclusively establishing this proposition; but the decision does not proceed to this extent. It was considered and held there that the lien of the attorney upon the judgment itself is confined to the services and disbursements in the action, and to a sufficient amount secured by it to satisfy this lien. But the point was not then before the court whether the attorney, after he had collected the judgment and had the money in his possession, would, or would not, be entitled to retain it until his entire account for services and disbursements in other legal proceedings should be settled by the party otherwise entitled to receive the money. That is a very different question from the one which was considered and decided in that case, for it depends upon the obligation of the attorney to surrender what he has actually become possessed of, belonging to his client, without his other legal claims being liquidated or settled. As to the papers which may pass into his possession, this general lien or right of detention has been uniformly maintained by the authorities. To a great extent it has been made dependent on the fact of possession, and the possession of the client’s funds would seem to be within the control of the same principle. This subject was examined in St. John v. Diefendorf (12 Wend., 261), where it was stated, in the course of the opinion, that the attorney would have this right of detention, of whatever belonged to his client, after it had lawfully passed into the possession of the attorney. This principle was made the subject of further consideration in section 629 of Wharton on Agency, etc., where the distinction is taken between the right of the attorney to charge a judgment by way of lien, and of retaining that of which-he may have become possessed by the permission and authority of the client. In the former case it is declared .that the lien will not extend beyond compensating the attorney for his services and disbursements in recovering the judgment, while in the latter, the money or papers in the possession of the attorney may be retained for a general balance of his account for services and disbursements. It is said there that “the distinction between the retaining lien and the charging lien in this respect is plain. In the one case the fund is in the attorney’s hands, and the law of lien property applies, and the attorney can charge for his general balance. In the other case the fund is not yet recovered, and the attorney, not having the fund in hand, ought, if he have a lien at all, to be restricted to that for statutory fees.” And the decision made in Matter of Knapp (85 N. Y., 284) proceeds upon this distinction, for there it was said, that “ An attorney has a lien for his costs and charges upon deeds or papers, or upon moneys received by him on his client’s behalf, in the course of his employment, is not doubted, nor does it stand upon questionable foundations.” (Id., 293.) And, as far as the case of Bowling Green Savings Bank v. Todd (52 N. Y., 489) extends, it sanctions this principle, which is entirely distinguishable from that which was considered and applied in the decision of Williams v. Ingersoll (supra). And these authorities maintain the rule to be, where the attorney has lawfully acquired the possession of the papers or money of his clients, under the authority of the latter, he shall not be obliged by the order of the court to surrender either until his just demands against the client for services and disbursements have been settled and paid.

The contract under which these moneys were collected and received by the attorney does not exclude, and is not in any manner inconsistent with, this right of detention or lien secured to the attorney, for it did not impose upon him the obligation, at all events, of paying over the money collected to the petitioner after deducting his own one-quarter. An obligation to pay, it is true, is to be implied from the agreement, but where this may be the relation of the parties the obligation is necessarily subject to the incidental rights of the attorney, not surrendered or abandoned by the making of the agreement. Upon the subject of the attorney’s lien on moneys passing into his possession the contract was entirely silent. Neither expressly nor by implication did it attempt to regulate this right or obligation of the attorney. That was, on the other hand, left to the legal principle applicable to the relation existing between these parties, that when the moneys of the client were collected by the attorney he should pay them over, after deducting what should appear to be justly due him for other services he had rendered his client and the disbursements made in the course of such employment. In this case, therefore, the petitioner was not entitled to the payment of the moneys collected upon this judgment until the legal claims of the attorney for his services and disbursements in other proceedings, which had not been adjusted and settled, shall be ascertained and paid.

The order of reference excluded the right of the referee to inquire into or investigate the claims made by the attorney for compensation for these services and disbursements in other proceedings. To that extent it was not entirely just to the attorney, and while the reference was proper to ascertain the amount due from the attorney to the petitioner, the order directing it should be so far enlarged as to include these other charges and demands' for which the attorney claims and has the right to retain the other three-fourths of the moneys collected by the judgment.

As so modified tbe order should be affirmed, with the usual costs and disbursements awaiting the result of the proceeding.

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

Order modified as directed in opinion and affirmed as modified, with ten dollars costs and disbursements to abide event.


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    JOHN H. STARIN, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and Others, Respondents.

      Leases of wharfs in LfewYoidc by the commissioners of the sinking fund — void if not let at public auction — 1882, chap. 410, secs. 170,180, 716 —right of a railroad company to acquire a lease of a ferry franchise not having either end at the raib'oad terminus —1884, chap. 193 — in what cases an action to restrain illegal acts will lie by a taxpayer"under chap. 531 of 1881.
    Upon the trial of this action, brought by the plaintiff as a taxpayer under chapter 631 of 1881, against the defendants, the commissioners of the sinking fund, to set aside a lease of ferry franchises and a wharf, it appeared that the wharf was situated at the foot of Whitehall street, and that one of the ferry routes extended from that street to Staten Island and the other from the same point to Bay Ridge, Long Island. The franchises, after having been advertised in the notice of sale, to be let for the term of eight years and eleven months from .lune 1,1884, were sold to the defendant, the Staten Island Rapid Transit Railroad Company. The notice of the sale fixed the rental of the wharf at the sum of $10,000, and stated that the ferry franchises were to be offered at an upset price of five per cent of their gross receipts. The sale was made as provided in the notice, against the objections that each ferry route should be separately sold, and that the rental for the wharf property should be fixed by the price for which the purchaser would be willing to take it at an auction sale.

      Held, that the authority conferred by section 180 of chapter 410 of 1882 upon the commissioners of the sinking fund to lease the wharf along with the franchise of a ferry, was qualified by the direction contained in section 710 of the same act, that “all leases, other than for districts appropriated by said department to special commercial interests, shall be made at public auction to the highest bidder:”
    That as the commissioners had disposed of the lease-hold term of the wharf at the fixed rental of $10,000, in violation of the provisions of this act, their proceedings were illegal ; and should, in so far as they had been consummated, be vacated and set aside.
    That as the plaintiff possessed the qualifications prescribed in the act of 1881, and had given the bond required by it, he was entitled to maintain this action, and that the fact that he was a bidder at the sale, and was interested in the use of the wharf and the ferry franchises previous to the time at which the sale was had, did not disqualify him from so doing.
    The defendant railroad company was incorporated, under the general laws of this State, to construct and operate a railway from a point on the shore of the lower bay of New Y ork, at or near New Dorp Lane, to or near the foot of the church road in the village of Port Richmond.
    Chapter 198 of 1884 authorizes any steam railroad company incorporated under the laws of this State, with a terminus in the harbor of New York, to purchase or lease boats propelled by steam, or otherwise, and operate the same as a ferry, or otherwise, over the waters of the harbor of New York, to any point distant, not more than ten miles from said terminus.

      Held, that while the act was sufficiently broad to entitle the company to acquire the necessary boats and franchise and to operate a ferry from the terminus of its road to the city of New Yoric, it does not appear to confer upon the company the power to lease another distinct ferry, as it proposed to do, to be operated from the city of New Y ork to Bay Ridge on Long Island.
    That as the sale was made, so far as the wharf was included in it, for a distinct price, incapable of being separated, it must, even if authorized in part, be wholly set aside.
    Appeal from a judgment, recovered at a Special Term dismissing the plaintiff’s complaint.

      James McNamee, for the appellant.

      Stewart & Boardman, and D. J. Dean, for the respondents.
   Daniels, J. :

The action was brought by the plaintiff as a taxpayer, under chapter 531 of the laws of 188!, to restrain the completion of tho execution of, and to set aside a contract for, a lease of a wharf and ferry franchise in the city of New York. The wharf and bulk* head is situated at the foot of Whitehall street, and one of the ferry routes extended from that street to Staten Island, the other from the same point to Bay Ridge, in the town of New Utrecht, on Long Island.

The franchises were advertised in the City Record to be let to the highest bidder for the term of eight years and eleven months, from June 1, 188L The rental of the wharf property .was previously fixed and mentioned in the notice at the sum of $10,000, and the ferry franchises were to be offered at an upset price of five per cent of their gross receipts. The sale took place as it was advertised, and the defendant, the Staten Island Rapid Transit Railroad Company, purchased the term and franchises, for which a lease was to be executed and delivered to it. Before the sale was made objections were presented to the right of the sinking fund commissioners to make it in this manner. It was urged that each ferry route should be separately sold, and that the rental for the wharf property should be fixed, alone, by the price for which the purchaser would be willing to take it at. an auction sale. These objections were disregarded and bids were refused at the sale proposing a higher rental for the wharf and an advance over the upset price for the ferry, franchises, it being determined at the time of the sale that the rental had been fixed for which the lease of the wharf was to be made. The plaintiff deeming this to have been an unlawful disposition of the leasehold interest in the wharf, and of the ferry franchises sold with it, as one of the taxpayers of the city brought this action to restrain and prevent the completion of the sale, by the execution and delivery of the lease, and to vacate and annul the sale itself.

He was a bidder at the sale, and was interested in the use of the wharf and the ferry franchises previous to the time of the making of the sale, and because of his interest the objections made by him to the authority of the sinking fund commissioners to make the sale, in the manner in which it took place, it has been urged should not be considered, and that this action cannot be maintained by him. But the law contains nothing disabling a taxpayer who may have been desirous of obtaining the leasehold interest, or who bid at the sale, or previously owned a leasehold term in the same property, from maintaining such an action as this. "What it requires is that the plaintiff shall be a taxpayer assessed for property to the amount, at least, of $1,000, and that the requisite bond shall be executed and delivered, as that has been directed by the law. And that the plaintiff was such a taxpayer, and this bond has been executed and filed, appears as facts in the case, and that distinguishes this case from Hull v. Ely (2 Abb. N. C., 440). Under the provisions of the statute he was a person authorized to maintain the action, if, upon the facts appearing, the disposition proposed to be made of the property and ferry franchises was illegal. The object of this statute is to secure the protection of public property, and to subordinate the acts of officials in its disposition, or appropriation, to the restraints of the law. And it requires to be liberally construed and applied to carry this object into effect (Ayers v. Lawrence, 59 N. Y., 192); and under its provisions actions in part the same as this have been sustained and approved by the courts. (Bird v. Mayor, etc., 33 Hun, 396; Warrin v. Baldwin, 35 id., 334.)

By a resolution adopted by the common council of the city of New York, and approved by the mayor on the 3d of November, 1875, a ferry was established to run from the bulkhead at the foot of Whitehall street in the city of New York to Staten Island, the franchise of which was directed to be sold at auction to the highest bidder. By another resolution adopted by the common council and approved by the mayor on the 4th of June, 1877, another ferry was established from the foot of Whitehall street to Bay Ridge, the franchise of which was also directed to be sold at auction to the highest bidder. This was also the mode provided by section 170 of chapter 410 of the laws of 1882 for the sale and disposition of city property including ferry franchises. It was thereby declared that the board of commissioners of the sinking fund should, ‘‘ except as in this act otherwise specially provided, have power to sell or lease, for the highest marketable price, or rental, at public auction, or by sealed bids, and always after public advertisement and appraisal, under the direction of such board, any city property, except wharfs, or piers, but not for a term longer than ten years, nor for a renewal for a longer term than ten years.” The same commissioners by section 180 of this act were further empowered to lease “ in the manner provided by law,” along with the franchise of a ferry within said city, “ such wharf property, including wharves, piers, bulkheads and structures thereon, and slips, docks and water fronts adjacent thereto, used, or required, for the purposes of such ferry, now owned, or possessed, or which may hereafter be owned or acquired, by said city.” This authority so far qualified the exception contained in section 170 of the same act as to empower the commissioners to lease with the ferry franchises, the wharfs, piers, bulkheads and ■ structures adjacent thereto, and required for the purposes of the ferry. But the exercise of the authority in this manner conferred upon the commissioners of the sinking fund was restrained by the provision that such wharves, piers, bulkheads or structures should be leased in the manner provided by law. That is the express language of the section itself, and it contemplates the existence of a restraint upon this power of leasing the wharves, piers, bulkheads and structures'thereon. And this restraint seems to have been intended to be no other than that contained in section 716 of the same act which provided that Said department may, in the name and for the benefit of the corporation of said city, lease any or all of such property for. a term not exceeding ten years, and covenant for a renewal, or renewals, at advanced rents of such leases for terms of ten years each; but not exceeding in the aggregate fifty years. . All leases other than for districts appropriated by said department to special commercial interests shall be made at public auction to the highest bidder.” This section is contained in that part of the act which relates to the department of docks. But by the provision contained in section 180 of the act, that the lease shall be made in the manner provided by law, it appears to have been the object and design of the legislature to apply these directions contained in section 716 to leases made by the commissioners of the sinking fund, for the use of wharves, piers, bulkheads and structures thereon, required for the purposes of a ferry. The intention of the statute appears to be that in the disposition of this property the sales or leases of it should be made through the intervention of an auction or sealed proposals after public notice, properly advertising it. It was to give the public the advantages of competition in which interested parties should be brought together and the highest possible price obtained for the property to be sold, or leased. And no reason can be perceived, why the dock commissioners should be expressly restrained in this manner, and the commissioners of the sinking fund should be at liberty to disregard this restraint. The act, on the contrary, discountenances any such distinction, for it requires the commissioners 6f the sinking fund, in leasing wharves for ferry purposes, to proceed in the manner provided by law, and that manner of proceeding by section 716 is to put the property up at auction.

This direction of the law was disregarded in the notice published for the lease of the wharf property, which was not in a district appropriated to any special commercial interest, and the auction itself also proceeded in violation of this direction. For the leasehold property was put up at a fixed price of $10,000 rental, and no change in that amount was permitted to be made, and no bid contemplating any change was received at the time when the sale took place. This was a violation of the direction given in the consolidation act for the leasing of this description of propei’ty. The law did not permit the rent to be determined by the commissioners, but that was to be done when not fixed by sealed proposals, by the persons attending at the sale, and by the highest bid offered for the lease. That it might not be a perfectly easy matter to comply with this direction of the law for the disposition of the wharf, will not justify the proceeding which .was taken, for the language of the statute is imperative that the rental to be paid shall be fixed in the manner in which the prescribed sale is required to take place. But in reality the difficulty in the way of making the sale, in compliance with the direction of the statute, is more imaginary than real, for, by putting the ferry franchise, or franchises, together with the lease of the wharf, the bidders could very intelligently bid for both by indicating the rental to be paid for the wharf and the percentage on the earnings of the ferry to be paid for its franchise. No serious obstacle would stand in the way of carrying the law into execution in this manner and complying literally with its directions. That was not done at the auction which took place, through which the railroad company claims to have acquired the right to the use of the wharf and the franchise of each of these ferries.

The railroad company was incorporated, under the general railroad laws of this State, to construct and operate a railway from a point on the shore of the lower bay of New York, at or near New Dorp lane, to or near the foot of the Church road, in the village of Port Richmond. It was no part of its organization to acquire a ferry right, or to run or operate a ferry 'from the terminus of its road to the city of New York. ‘ And whatever right or authority it has since obtained for this purpose was acquired by it under chapter 193 of the Laws of 1881. This act provides that “Any steam railroad company incorporated under the laws of this State, with a terminus in the harbor of New York, is hereby authorized and empowered to purchase or lease boats propelled by steam or otherwise, and operate the same as a ferry or otherwise, over the waters of the harbor of New York to any point distant not more than ten miles from said terminus.” And while this act is sufficiently broad to entitle the railroad company to acquire the necessary boats and franchises, and to operate a ferry from the terminus of its road to the city of New York, it does not appear to confer upon the company the power to lease another distinct ferry, as it is now proposed it shall do, to be operated from the city of New York to Ray Ridge, on Long Island. What the statute intended was that any railroad company having a road, with a terminus at the harbor of New York, should be empowered to reach the city by maintaining a ferry from that terminus to any other point not more than ten miles distant from this terminus. Rut the ferry route, extending from the foot of Whitehall street to Bay Ridge has no connection whatever with the terminus of the railroad company. It is, on the other hand, distinct and independent from the terminus of the railroad, having terminal points of its own, , in which the railroad company is in no way concerned. And if it could acquire, under the authority of this statute, the lease of such a ferry route, it may acquire with equal propriety a lease of any route extending from any part of the city of New York, either to Long Island or the Jersey shore. And to confer such power upon the railroad company very clearly seems not to have -been the design of this act. And if it was not, then the lease proposed to be made to the railroad company for the Whitehall and Bay Ridge route would be an illegal disposition of the property and franchises of the city, and liable to restraint and prevention under the act of 1881. This subject was considered in Latham v. Richards (12 Hun, 360), and an unauthorized disposition of public property was in that action restrained. And there is good reason why it should be, for if the railroad company had no. power to purchase or accept, the lease of this ferry franchise, and the right to use the wharf, so far as it should be necessary, for that purpose, it might hereafter refuse to be bound by the lease, and abandon it as unauthorized to the city. And the commissioners of the sinking fund have not been empowered to place public property under a contingency of that description. The sale was made, so far as the wharf was included in it, for a distinct price, incapable of being separated, or apportioned to the different ferry franchises. And if it was unauthorized in part because of the inability of the railroad company to acquire the Bay Ridge route, it seems to follow that it must be held to be wholly unauthorized. But whether it be so held or not, as long as the commissioners disposed of the leasehold term for the wharf in violation of the provisions of the statute, their proceedings were illegal and they should be restrained and prevented from carrying them into effect, and so far as they may have been consummated they should be vacated and annulled. The judgment, therefore, should be reversed, and, as the facts are already found by the court in its decision, a judgment in conformity with these views should be entered in the action. And as this will dispose of the allowances no specific attention is required to be devoted to them.

Brady, J., concurred.

Davis, P. J., taking no part in the decision.

Judgment reversed, and judgment ordered as directed in opinion.


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    GOTTLIEB WEBER, Appellant, v. NATHAN MANNE, as Assignee of S. SILBERSTEIN & CO., Respondent, Impleaded, etc.

      Undertaking to secure a return of chattels —form of — Code of Civil Procedure, secs. 1698 .and 1704.
    Under an attachment, issued in this action brought to recover the possession of a laTge number of articles, the sheriff took possession of a part or all of the articles. The defendant, to entitle himself to require a return of so much of the property as had been seized by the sheriff, presented an undertaking, executed by himself and two sureties, in a sum double the actual value of all the property, as it was stated in the affidavit made by the plaintiff, which recited that the plaintiff had caused a part only of the property to be replevied, and that the defendant, executing or giving the undertaking, required a return to him of the part of the chattels so replevied.

      Meld, that although this recital should not have been inserted in the undertaking the plaintiff was not prejudiced thereby, as it did not, in any way, qualify or diminish the liability of the persons executing it to respond for the value of all the chattels, the return of which might be secured by means of the undertaking.
    Appeal from an order approving the form of an undertaking given on behalf of the respondent in an action of replevin.

      Abram Klvng, for the appellant.

      Richard M. Henry, for the respondent.
   Daniels, J.:

The action was brought to recover the possession of a large number of articles, a schedule of which was annexed to the affidavit of the plaintiff. The sheriff took possession of a part or all of the articles, and this defendant required a return of so much of the property as had been replevied by the sheriff, and, to entitle himself to that return, an undertaking was presented, executed by himself and two sureties, in the sum of $2,830.64. This was double the amount of the actual value of all the property, as it was stated in the affidavit made by the plaintiff, aüd it was all, in that respect, which the defendant was obligated to do to entitle himself to the return of the property, according to Section 1698 of the Code of Civil Procedure. For by that section, even if the whole of the property mentioned in the affidavit has not been replevied, when the value of the different articles has not been stated, but a gross value placed upon them all, the entire value mentioned in the affidavit is to be deemed tbe value of the part replevied in the proceedings to procure a return thereof to the defendant. But this undertaking, without any evidence that such was the fact, recited that the plaintiff had caused a part only of the property to be replevied, and that the defendant, executing or giving the undertaking, required a return to him of the part of the chattels so replevied. And because of this recital, and the restriction of the liability of the parties executing the undertaking to the value of the chatties so replevied, it was objected to as not in compliance with what the law had required for this purpose. And this objection seems to have been well taken, for, as no separate value was given to either of the articles, the undertaking on behalf of the defendant, both by sections 1698 and 1704, was required to be for double the value, stated in the affidavit, of all the chattels. The former of these sections is clearly expressed to this effect, and there is no ¿mbiguity in the latter, for it has required, by subdivision 2 of section 1704, that the undertaking shall be to the effect that the persons executing it are bound in a specified sum, not less than twice the value of the chattel as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if that shall be adjudged, etc., and accordingly the undertaking should have been in the usual form for this amount. And that would impose no unlawful burden either upon the defendant or his sureties, for they would in no event be liable for more than the value of the chattels replevied, the possession of which should be secured by means of the undertaking. That is the effect of this section. It provides first, to entitle the defendant to a return that he shall serve upon the sheriff a notice that he requires a return of the chattels replevied; and to obtain that return, where a separate valuation has not been placed on different articles, the undertaking in double the value mentioned in the plaintiff’s affidavit has been made indispensably necessary; but at the same time the extent of the liability is limited to the value of the property obtained under it, and it is that of the chattels replevied.

But the additional statement in the undertaking that only a part of the chattels had been replevied did not qualify the liability of the persons executing it, for whatever the chattels might be that were replevied, and the return of which should be secured by means of the undertaking, the sureties will he liable for no more than their value in case the plaintiff succeeds in maintaining his right to the recovery of their possession, and they would be liable to no more than that if no statement had been made in the undertaking asserting the fact to be that only a part of the chattels had been replevied. The law has not heen framed in such a manner as to impose on the sureties any larger measure of liability than this in any event. It is for the value of the chattels replevied that they may be made liable, and for no liability beyond that. The case of Diossy v. Morgan (74 N. Y., 11), which arose and was decided under the preceding Code, is not in conflict with this construction, for all that was held there was that the persons executing the undertaking were estopped from denying that the property had heen replevied and was in the possession of the sheriff. What that property was, or its value, the sureties were not held, by this case, to be estopped from proving, as a matter of fact, on the trial of an action brought against them on their undertaking.

The recitals in the undertaking that only a part of the property had been replevied cannot, therefore, be held to prejudice the plaintiff, for whatever amount of the property was replevied by the sheriff the persons executing the undertaking would be liable, to the plaintiff, if he succeeds in maintaining his action, and that is all that the sureties in the undertaking could be made liable for if it had been made out precisely in the form in which it should have been if it had complied with these sections of the Code.

The order from which the appeal has been taken should be affirmed, but as there was this defect in the undertaking, now considered not to be material, it should be without costs.

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

Order affirmed, without costs.


author: Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOSE M. FERRER, as Ancillary Executor, etc., Appellant, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS, etc., Respondents.

      Taxation — exemption of moneys deposited by a rwrwresident for investment Tiara— 1 Revised Statutes, 389, section 5, as amended by chapter 176 of 1851, and 1 Revised Statutes, 419, section 3.
    One William Maden, -who resided in Cuba, died in August, 1884, having at that time on deposit with Moses Taylor & Co., of the city of New Y ork, the sum of $106,224, which had been placed by him in their custody for investment. The relator, who had duly qualified as his executor in Cuba, in order to get possession of the money so deposited, took out ancillary Ic'.iers in this State, and thereafter demanded the money from Taylor & Co., who refused to pay it over.
    Upon the hearing upon the return to a certiorari, brought to review the áfction of the respondents, in assessing the relator for the sum mentioned as personal property:

      lleld, that as the fund was sent here for investment by the deceased, and his will showed that it was his intention that a certain portion thereof, at least, should be invested in United States securities, it was exempt from taxation under the provisions of section 5 of 1 Revised Statutes, page 389, as amended by chapter 176 of 1851, and section 3 of 1 Revised Statutes, 419.
    Appeal from an order of the Special Term, directing judgment for tbe respondents on the hearing upon the return to a certiorari.

      A. B. Oruikshank, for the appellant.

      George S. Coleman, for the respondents.
   Beady, J.:

It appears from the record that William Maden, otherwise known as William Maden and Deacon, was, in his h'fe-time, a capitalist, who resided at Cardenas, in the Island of Cuba. He died in August, 1884, and at the time of his death there was deposited with Moses Taylor & Co., of this city, the sum of $106,224, which was by him placed in their custody for investment. He left a will appointing the relator, a resident of Cuba as it is understood, his executor, who qualified as such in Cuba, and, in order to get possession of the money deposited here and already referred to, took out ancillary letters and thereupon demanded the money from Taylor & Co., who refused to pay it over. In the meantime the respondents, in the discharge of what they conceived to be their duty, assessed the relator, as executor, for the sum mentioned as taxable personal property, and on his application duly and properly made, refused to cancel the same. This proceeding which was instituted to review the propriety of the tax imposed upon the relator is regular in all respects, and presents, therefore, the abstract question of such propriety. The provisions of the Revised Statutes (1 R. S., m. p. 389, §5, and 419, §3, Laws 1851, chap. 176) declare that the agents of moneyed corporations or capitalists shall not be liable to taxation for any moneys in their possession or under their control, transmitted to them for the purpose of investment, and also that any bond, mortgage note, contract, account or other demand belonging to any person not being a resident of the State, if sent here for collection or deposited here for the same purpose, shall be exempt from taxation.

In the case of Williams v. The Board of Supervisors (78 N. Y., 561), these statutes were under consideration, and it was said that their provisions were clearly designed to afford to the foreign capitalist who invests his funds here every conceivable protection. The court said : “ His capital cannot be taxed while awaiting investment. If the securities are taken by him out of the State, he may with impunity send them back to an agent here for the collection of principal or interest. And if, instead of being removed from the State, they are deposited here with an agent for collection, they are equally free. The capital is 'protected from taxation whether invested or uninvested, and whether the securities are taken away or remain here for collection.”

“Nothing could be more plain,” said the court, “ than the policy and purpose of these exemptions. They are clearly intended to further the trade and commerce of the State, and to encourage and even invite' the sending of foreign capital here for investment.”

This unavoidable interpretation of the statutes referred to, their language, object and design being properly understood and carried out, disposes of the propriety of the taxation here complained of. There seems to be no appropriate answer, no presentation of any fact excepting the fund in question from the application of the rule thus pronounced. It is true that the respondents seek to sustain the validity of the tax by asserting that the fund is a demand or obligation due from Moses Taylor & Go., to the estate of which the relator is the executor, and as such is intangible and does not require and is not susceptible of physical possession.

Assuming that to be so, the design of the testator in sending it here has not been changed. It was deposited for the purpose of investment and for no other purpose according to the record, there being nothing in the case to indicate that the testator had changed the purpose or object in view. So far as anything is disclosed on that subject, it appears that the relator, who was the executor of the depositor, came to this State from Cuba, for the purpose of obtaining the necessary legal status to enable him to get possession of the money, and with the intention, in order to carry out the provisions of the will of the depositor, of investing at least $70,000 in bonds of the United States. And, under such circumstances, the observation of the court in Williams v. The Board of Supervisors (supra), and already quoted, is applicable, namely, “his capital cannot be.taxed while awaiting investment.”

There can be no doubt under all the facts and circumstances which control the. question before us, that.the fund of the taxation of which complaint is made, was sent here for investment, and left for investment and was taxed while awaiting investment, and upon the erroneous theory that the .death of the depositor made a change in its status. There is nothing to indicate that; on the contrary, the evidence discloses that the intention of the testator was expressed, even in his will, of investing a certain portion at least of the fund in United States securities.

Under these circumstances we entertain no doubt that the fund was within the provisions of the statutes referred to; that the tax was illegal, and that the order appealed from should be reversed and the assessment directed to be canceled. No costs, however, will be allowed to the appellant.'

Davis P. J. and Daniels J., concurred.

Order reversed and assessment canceled, without costs.

the preparation of Part II.


text:
    MARY G. JONES, Respondent, v. MORGAN JONES and ANN JONES, his Wife, Appellants.

      What proof of the publication of a will will justify the submission of the question to the jury — no formal statement is necessa/ry.

    Mr. Finigan, having been informed by one Sheridan that Mr. John Jones wished to have him draw his will, called upon Jones and it was agreed that the will should be drawn and executed at seven o’clock in the evening of that day, at which time the witnesses were to be present. On that evening Finigan, Jones, Furlong and Sheridan met, and the will was then drawn from instructions given by Jones and in his presence, and read to him by Finigan, He said it was correct, but would rather have Sheridan read it over to him, which Sheridan then did carefully and slowly. Jones then signed the will, and Finigan said “ I will sign it as a witness, and then Mr. Sheridan.” to which he answered, “All right; ” and when Farley signed it he said, “ Put your residence there ; don’t forget that.”

      Held, in an action of ejectment involving the validity of the defendants’ title, acquired under such will, that the court erred in refusing to admit the will in evidence, upon the ground that there was not sufficient evidence of its due execution; that the question as to its due execution should have been submitted to the jury.
    Appeal from an order denying a motion for a new trial, made on the minutes, and a motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict rendered in favor of the plaintiff.

      Jacob F. Miller, for the appellants.

      John E. Parsons and D. B. Ogden, for the respondent.
   Beady, J.:

The plaintiff sought in this action to obtain possession of one-ninth of the property described in the complaint, her claim resting upon the allegation that she was one of the heirs-at-law of John Jones, who died seized of the premises.

The defendant Morgan Jones averred his ownership of the estate under and by virtue of three deeds duly executed and acknowledged by his brother, John Jones, and by which it was conveyed to-him. The plaintiff assailed the vitality of these instruments, by evidence tending to establish their invalidity, by reason of the mental incapacity of tbe grantor when they were made. The defendant Morgan Jones essayed to establish his title to the premises also by the will of his brother, which was offered in evidence, but rejected on the ground that there was “not sufficient evidence of due execution.” The jury having the issue as to mental capacity then before them, only as to the deeds, found for the plaintiff generally. The defendants moved for a new tidal on the minutes and the exceptions taken by them, which motion was denied, and the exceptions, by the order entered upon the decision of that motion, were ordered to be heard in the first instance at the General Term.

The learned justice, in declaring the result of his deliberation, said that it was a matter of great doubt whether there was sufficient evidence on the part of the plaintiff to go to the jury, but that as there were one or two pieces o.f evidence properly presentable to them the verdict might not be disturbed and he, therefore, ordered the exceptions to be heard as stated. Nothing was said upon the value of the exceptions, or any one of them, the learned justice having mainly, it would seem, considered the motion in relation to the weight of evidence. The will was an important element in the defendant’s case for the reason not only that it gave the defendant Morgan Jones the property in controversy, but in effect confirmed the previous transiere which the plaintiff sought to destroy, and if it were improperly treated as a part of the defendant’s case a new trial must follow.

A careful examination of the evidence bearing upon its execution and publication results in the conviction that the question at issue on that subject should at least have been submitted to the jury. It was drawn by Mr. Finigan, a lawyer. He was advised that John Jones wished his will drawn, and he went to see him. At that interview, which took place in the afternoon, it was agreed that the will should be'drawn and executed in the evening, and they were to meet at seven o’clock with the witnesses necessary for that purpose. Mr. Jones suggested Mr. Furlong, who was then present, as one of them. In the evening Messrs. Finigan, Furlong, Sheridan and Jones met as contemplated. The will was then drawn from the instructions given by Jones, and in his presence, and read to him by Mr. Finigan. He said it was correct, but would rather have Mr. Sheridan read it over to him, which Mr. Sheridan then did, carefully and slowly; Mr. Sheridan, it must be borne in mind, also, was the person who went to Mr. Finigan, at the request of Mr. Jones, to get him to draw the will. He then signed it, and Mr. Finigan said to him: “ I will sign it as a witness, and then Mr. Sheridan,” to which he responded : “All right; ” and when Mr. Furlong sigued it he said: “Put ;your residence down there; don’t forget that.” The meeting arranged for the evening was in reference to the presence of the necessary witnesses chiefly, it would seem; and the evidence is not disputable as showing, or at least tending to show, that they knew not only what the paper was, but that they assembled to witness its execution, and that it was declared by the testator to be all right, he suggesting as a part of the necessary formula, to Furlong, that his residence should be added. No other conclusion can be reasonably entertained from these facts and circumstances than that the testator sufficiently declared the will to be his, and requested the witnesses to attest it. Two of them; Sheridan and Finigan, by instructions from him, knew what was to be done in the evening, namely, his will drawn; and it was so drawn, in the presence of these witnesses, read twice Jo the testator, declared to be all right, and then signed by him and the witnesses. The attestation clause was full and complete.

In Woolley v. Woolley et al. (95 N. Y., 231), cited on behalf of the plaintiff, witnesses did not see the testatrix sign the paper, did not know it was a codicil and there was no acknowledgment of it as such. It was signed as a paper pnrporiing something the witnesses knew not what, and it was expressly said, as one of the reasons controlling the judgment pronounced, that there was no proof that the testatrix acknowledged her signature to the witnesses, and that there was nothing from which it could be properly inferred that she did so. Here, as will have been perceived, the will was’ signed in the presence of witnesses, who knew what it was, after it bad been read over twice to the testator, once by each of two witnesses, and declared by him to be all right.

In the Matter of the Will of Cottrell (95 N. Y., 335), many of the oases bearing upon this subject were considered, and it was said that the precise force which should be accorded a full attestation clause regularly authenticated, was not clearly defined in the cases, but that they all agreed in the conclusion that it was entitled to great weight in the determination of the question of fact involved. And further, that such a clause duly signed and corroborated by circumstances surrounding the execution, has been held sufficient to establish a will signed by the testator, even against the positive evidence of the attesting witnesses to the contrary. Indeed it had been previously held that a will duly attested upon its face, the signatures to which were genuine, might be admitted to probate, although none of the subscribing witnesses were able to swear, from recollection, that the formalities of the statute were complied with, and even although some of them should swear positively that they were not, if the other evidence warranted the inference that they were. (Orser v. Orser, 24 N. Y., 52.)

In Mitchell v. Mitchell (16 Hun, 97, and affirmed in 77 N. Y., 596), to which reference is made in Woolley v. Woolley (supra), the deceased produced a paper and said: “ This is my will, and I want you to sign it,” and the witness complied with the request; whereupon he took it, after saying, “I declare this to be my last will and testament,” delivered it to one of the witnesses for safe keeping; but there was no acknowledgement that what purported to be his signature was in fact made by him, which was held to be necessary, and was quite distinct from his declaration of the nature of the instrument. It differs, therefore, from the case in hand, for the testator signed his will in the presence of the witnesses. ( Willis v. Mott, 36 N. Y., 486.) The decision of this court in' the Matter of Beckett (35 Hun, 447) seems, however, to be controlling in favor of the defendants. It was there said that no formal declaration of the paper, executed as the last will and testament, was necessary; no form of words was essential. It was only required that the witnesses should be given to understand, by words or acts of the decedent, that the proposed paper was intended as a will. And that case, in its facts, is no stronger on the subject than this.

The doctrine of Remsen v. Brinckerhoff (26 Wend., 325, 332), approved in Gilbert v. Knox (52 N. Y., 125), was referred to, in which the chief justice said : I agree that no form of words will be necessary; that the legislature only meant there should be some communication to the witnesses indicating that the testator intended to give effect to the paper as his will.”

It is not deemed necessary to pursue this subject further. It is quite apparent,’for reasons already assigned, that the question as to due execcution, if any doubt were created, should have been submitted to the jury, and it was error, therefore, to exclude it.

For these reasons the judgment must be reversed and a new trial ordered, with costs to the defendants to abide the event.

Daniels, P. J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


author: Brady, J.:

text:
    CHARLES Z. POND, as Executor for SUSAN J. CLARK, Deceased, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and the MANHATTAN RAILWAY COMPANY, Appellants.

      Easement of light from a street — right of an abutting owner to recover damages for an interference with it — when one erecting and leasing an elevated road is liable for damages occasioned by the running of trains by the lessee of the road.

    This action was brought to recover damages for injuries occasioned to a four-story brick building belonging to the plaintiff, situated on the corner of McDougal and West Third street, in the city of New York, by the construction of an elevated road in West Third street by the defendant, the Metropolitan Elevated Railway Company, and by the operation of the same by the defendant, the Manhattan Railway Company, to whom it was leased in 1879.

      Held, that although the plaintiff did not own the fee of the street he had an easement of light therefrom, which entitled him to maintain an action to recover the damages occasioned by any interference with, or interruption of the passage of the light from the street to his property.

      Story v. New York Elevated Eaitroad Company (90 N. Y., 122) followed.
    That in determining the amount of the damages the operation of the road as an entirety must be considered, and that as the running of the trains constitutes an essential part of the operation of the road any interruption of light thereby occasioned was to be considered as arising from the structure and its uses, and as forming a part of the disturbing cause.
    That the fact that the defendant, the Metropolitan Railwaj’, did not, after May 20,1879, use the structure which it had leased to the defendant, the Manhattan Railway Company, did not prevent a judgment from being given against both defendants, as the first company, erecting the structure, by leasing it, when equipped for use, to the other defendant, continued the wrong complained of.

      Joint appeal by both defendants, from a judgment entered in favor of the plaintiff upon the findings and opinion- of Mr. Justice Barrett, after a trial had at the New York circuit without a 'jury-
    This action was brought to recover damages to the property of the plaintiff’s testatrix, alleged to have been occasioned by the acts of the defendants.
    Susan J. Clark, the plaintiff’s testatrix, owned the premises No. 136 MacDougal street, a four-story brick dwelling-house, fronting twenty feet on MacDougal, and with its whole length, fifty-eight feet, lying along West Third (more commonly called Amity) street. This street was laid out in 1823, pursuant to the general street opening act of 1813, and plaintiff’s predecessor in title, Ireland, paid an assessment for such opening. In front of these premises on West Third street the defendant, the Metropolitan Elevated Railway Company, in 1S76, built the present structure, and in 1878 commenced running trains thereon past the windows of this house, and in 1879 leased its property to the Manhattan Railway Company, which was operating it at the time this action was begun by Mrs. Clark in November, 1883. This structure stands on a level with the second story windows, and about twelve feet from them, and cuts off sunlight from the basement, parlor, and to a certain degree second-floor windows. The trains of cars, which stand about ten feet higher than the structure, cut off or interfere with all the light entering from the Amity street side, the basement, parlor and second-floor windows. They throw a flickering flashing light into these windows.
    It was shown that the structure and its operations by the defendants interfered very materially with the easement of light and injured the value of the premises. Upon the trial the plaintiff abandoned his claim for damages to the easements of air and access, and rested his claim for compensation solely upon the damages to the easement of light as caused by the structure and operations of the railway. Judge Barrett assessed the damages at $2,500, and directed judgment for that sum and costs.

      Edward S. Eapallo, for the appellants.

      Inglis Stua/rt, for the respondent.
   Brady, J.:

The Court of Appeals in Story v. New York Elevated Railroad Company (90 N. Y. 122), as it is understood, determined that an abutting owner, for an injurious interference with, or interruption of light from the street, was entitled to remuneration, it was an easement to the unobstructed enjoyment of which he was entitled. There are many eases cited in the prevailing opinion delivered in that case by Justice Danrorth, illustrative and declarative of the rule.

, The substantial objection urged with great zeal by the learned counsel for the defendants, is that the Legislature having the power, duly authorized the construction of the defendant’s road, and the abutting owner, who does not own the fee of the street, cannot claim any compensation for any inconvenience resulting from the exercise of the right conferred, if the street still remains open and practicable for the ordinary use of the public. But this proposition expressive though it may be in cases to which it is properly applicable, seemed to be formulated upon the dissenting opinion of Eael, J. in the Story case, although sustained by other citations. Whatever may have been or may be the rule as to surface roads per se, that which governs the rights of the abutting owner from structures above the surface has been defined for this case by the adjudication to which reference has been made.

The issue, therefore, which was presented herein to the learned justice presiding at the trial was, whether the defendant’s structure and its use invaded the realm of light which, in common with others belonged to the plaintiff, and diminished it. Upon that subject the evidence may be said to have ‘been in collision, if not in conflict, and, after due deliberation, to have been regarded as more favorable to the plaintiff. This applies as well to the issue mentioned as to the amount of damages which should be awarded to the plaintiff for the deprivation to which he was subjected ; and as the evidence must be said to be sufficient to sustain both conclusions arrived at, the judgment cannot, on the questions of fact, be disturbed. The rule of damages adopted, namely, the difference in value with the full and unobstructed use of the easement and'the value without it, was the proper one. (Matter of N. Y. C., etc., Co., 15 Hun, 63, 67, 69; Matter of Lackawanna and W. R. R. Co., 29 id., 1; N. Y., W. S. and B. Ry. Co. v. Sutherland, 35 id., 260.)

These cases also establish the proposition that the operation of a road as an entirety must be considered in the estimate of damage and, therefore, the running of trains constitutes an essential part of it — indeed the most important — for without them it would be useless. Whatever interruption of light, therefore, they occasioned was a part of the interference arising from the structure and its uses and legitimately a part of the disturbing cause. (See, also, Story’s case supra.) The evidence relating to them was properly received therefore.

The further proposition that judgment could not be given against both defendants for the reason that the structure was not used by the defendant, the Metropolitan Railway, after May 20, 1879, when it was leased to the defendant, the Manhattan Railway, is not regarded as sound. The first defendant named erected the structure and equipped it for use and subsequently leased it to the second defendant named, and thus continued the wrong complained of.

This case has been frequently examined, and although the extended, exhaustive and able brief, of the appellant’s counsel presents a 'fine field of refinements and invokes discussion, it is nevertheless simple, starting with the proposition that the obstruction of light may not be indulged in without affording proper indemnity. No error in its disposition has been discovered and the judgment must be affirmed with costs.

Daniels, J., concurred.

Judgment affirmed, with costs.