text:
    ANNIE E. ERWIN, Administratrix, etc., Respondent, v. THE NEVERSINK STEAMBOAT COMPANY, Appellant.

      Duty of vessel when her signals are not answered — A vessel is not bound to home loohouts to watch for vessels approaching from the rear — When a verdict in an action for negligent hilling will not be set aside as excessive.

    Where two steam vessels are sailing inj the same direction, and the second one, which is going at more than double the speed of the first, has given the requisite signals to indicate her intention to pass the first, but has received no response thereto, it is the duty of those in charge of the second vessel to immediately repeat her signals and to provide against the possibility of a collision by slackening her speed and if necessary changing her course in some degree; and they are guilty of negligence if instead of so doing they assume that the silence of the first vessel is an acquiescence in the intention of the second, as indicated by the signals, and proceed accordingly.
    Neither the statutes of the State, nor the rules of navigation nor the decisions of the courts require a vessel to keep a lookout, stationed for the purpose of discovering and avoiding vessels approaching from the rear and sailing in the same direction.
    This action was brought to recover damages for the negligent killing of the plaintiff’s intestate. The plaintiff, his mother, was aged, blind and helpless and largely dependent upon her son’s earnings for her support. The son, an engineer, was industrious and faithful in his professional duties and in providing and caring for the plaintiff. The case has been tried three times. The first verdict was for $1,500, the second for $100 (set aside on the ground of the inadequacy of the damages) and the third for $5,000.

      Held, that the last verdict would not be set aside as excessive.
    Appeal from a judgment in favor of tbe plaintiff entered on tbe verdict of a jury, and from an order denying a motion for new trial made on tbe minutes of tbe justice before whom tbe action was tried.
    Tbe action was commenced in 1875 and bas been tried three times. Upon tbe first trial tbe jury rendered a verdict for $1,500. Upon a new trial, ordered because of tbe admission of improper evidence, a verdict was rendered for $100, wbicb was set aside on the ground of inadequacy of damages. Upon the last trial a verdict was rendered for $5,000.

      I). McMahon, for tbe appellant.

      John M. Bowers, for tbe respondent.
   Davis, P. J.:

This action was brought to recover damages for an injury which caused the death of William E. Albertson, the plaintiff’s intestate. Albertson was the engineer of the steam propeller Hope, and was killed by a collision near Hell Grate, between the Hope and the defendant’s steamer Americus, by which the former was immediately overturned and sunk, and Albertson was drowned. Both vessels were running in the same direction towards the sound, the Hope being in advance, and in the slack-water near the shore, and the Americus rapidly coming up, to pass her, in the channel. The Americus was much the faster boat. The tide was ebbing at a rate between three and five miles an hour; the Americus was running from fifteen to eighteen miles an hour, and the Hope at about five miles an hour. At the point where the Hope struck the tide, she was suddenly diverted and thrown towards and partially across the channel, and at about the same moment was struck by the Americus with such force that she careened and sunk at once. Albertson was engaged at his duties in the engine room, and, being unable to escape, was drowned. The questions of fact in the case were presented to the jury by the learned judge in a charge of admirable fairness and clearness.

The only exception to the charge arose upon the requests of the defendant’s counsel for a further charge on the subject of contributory negligence. The court declined to alter the charge as given, and the defendant’s counsel excepted.

On that subject the court had charged as follows: “ It is also necessary that you should be satisfied that the occurrence which led to the death of Albertson was not produced by the negligence or misconduct of the deceased. If it was, then the plaintiff cannot recover. It has been claimed by the learned counsel for the plaintiff, that the deceased was not chargeable with any negligence of the pilot of the Hope, if any such negligence occasioned the disaster, and I am asked to charge you that, although the pilot of the Hope may have been guilty of negligence in the management of the vessel on the occasion in question, his negligence will not prevent a recovery in this action against the defendant, if you find that the defendant was guilty of negligence. Now, gentlemen, I am of the opinion that the weight of authority in the State is otherwise, and that under tlie evidence, the deceased and the pilot being engaged in a common employment in the management of the Hope, if she was negligently managed and handled on the occasion in question by the pilot, and such negligence led or contributed to the disaster and the death of the engineer, that then no recovery can be had.”

The pilot of the Hope had the management and control of its navigation, and if under the evidence there were any negligence, it grew out of his conduct, and therefore the charge covered the whole ground, and was as favorable to the defendant as the law required. It was not the duty of the learned judge to repeat the charge and put it in another form of language as requested by the counsel, and it was no error to decline to do so. The exception was, therefore, not well taken.

We have examined with care each of the numerous exceptions taken in the course of the trial, and so far as they present any important question for consideration, we think they were correctly disposed of by the learned judge. It is not necessary to consider them seriatim. Some of them, which related to questions which might possibly be said to have been objectionable, called out immaterial answers, which cannot justly be said to have injuriously affected the defendant. Others of them, if the rulings were erroneous, were cured by the testimony called for by the questions being subsequently admitted without objection. We are unable to discovér sufficient ground in those exceptions to justify us in interfering with the verdict.

The Hope being in advance, and going in the same general direction as the Americus, was by the established rules of navigation entitled to the right of way. The Americus was proceeding at more than double the speed of the Hope, and had, of course, the right to pass her-; but in approaching to do so, she was bound to give certain prescribed signals indicating her intention to pass, and in what manner. The testimony as to whether she gave the requisite signals was in conflict, but we think the preponderating evidence established that she did give two signals with her steam whistle, indicating her intention to pass on the left, or channel side of the Hope. The Hope did not give, as the regulations required, an answering signal, by which the Americus would be informed that her own signal had been heard, and was understood. The pilot of the Hope testifies that he did not know the Americus was approaching him, and heard no signal from her. His action accorded with his testimony, and the jury had the right to accept as true, that if the signals were given they were not heard and for that reason were not answered by the Hope. But as we understand the rules of navigation put in evidence by the respective parties, and, as we suppose, a reasonable degree of care required at the hands of the Americus, it was her duty when she knew that the Hope made no response to her signals, not to have assumed that the silence of the Hope was an acquiescence in her intentions as indicated by the signals, but to have repeated them immediately, and to have adopted precautions against the possibility of collision by slackening her speed, and if necessary, changing her course in some degree, so that in passing she would not be brought -within the distance of the Hope, forbidden by the rules of navigation and the statutes of this State.

She failed to do either of these things. She neither slackened her speed, nor changed her course; nor did any act until the collision appeared to be imminent and unavoidable; and then according to the evidence her engine was stopped, but too late to be of any service in arresting the disaster. The evidence tends strongly to show, and it is undoubtedly true that the collision would not have occurred if the Hope had not, on striking the tide, been suddenly thrown out partially or wholly across the line in which the Americus was running; and it is also probable that if the pilot of the Hope had known of the approach of the Americus or had heard her signals, he might with a great degree of care have prevented his vessel from being so far thrown out of its course by the tide and the collision would have been avoided. But it was the duty of the officers of the Americus to have known that the,Hope at that point was likely to be thrown into danger, and in view of that fact, to have taken the necessary precautions to avoid a collision. The testimony certainly justified the jury in finding that the Americus was traveling recklessly, at a speed of eighteen miles an hour in immediate proximity to the Hope, and where a collision was imminent, without repeating her signals, and without taking any step that would be likely to avoid a possible collision or to prevent the serious consequences which followed.

It is insisted that the Hope was guilty of negligence in not having a lookout so situated as to discover the approach of the Americus and thus enable her to avoid the collision.

The law does not, as we understand it, require a lookout under such circumstances and for such a purpose. The Hope was of course bound to exercise a reasonable degree of care under the circumstances of the case, but neither the statutes of the States, nor the rules of navigation, nor the decisions of the courts have held that the degree of care requires a lookout stationed for the purpose of discovering and avoiding approaching vessels sailing in the same direction. The absence of that peculiar kind of protection is not, in itself, fatal to a recovery. The leading vessel under such circumstances is entitled to rely with confidence that approaching vessels intending to pass her will not fail to obey the requirements of the statutes and of the rules of navigation; and it can hardly be said that it is itself bound to the exercise of any higher degree of care than they impose. We think that the collision was found by the jury upon evidence justifying such finding, to have been caused by the neglect of the Americus to repeat her unanswered signals, and to take the precautions in respect of approaching and passing the Hope, which reasonable care and diligence imposed upon her, and for this reason we are of opinion that the verdict cannot be disturbed either upon any question of law or evidence.

This conclusion disposes hoth of the appeal from the judgment and from the order, so far as the latter depends upon questions as to the weight of evidence.

'The other ground of the motion was that the damages were excessive. The case had beén carried as the papers show to a third trial; and upon the last trial the damages given were much heavier than upon either of the'Others. That, in itself, is no reason for interfering with their amount. The plaintiff was the mother and next of kin of the deceased. The evidence shows that she was largely dependent upon his earnings for her support. She was aged, blind and helpless. The statute allows the jury in such cases, in the exercise of their discretion, to give an amount not exceeding $5,00.0. They had the right to take into consideration the condition of the mother, the care and attendance necessary for her comfort and happiness, and the probabilities that she would have continued dependent upon the deceased for them, as well as for her maintenance. If the jury considered that $5,000 would be no more than sufficient to cover her probable pecuniary losses, and replace and secure to her the pecuniary benefits she would be likely to have received from a son shown to have been industrious and faithful in his professional duties as well as in his attention to and provision for her wants, we do not think it is within the province of the court to disturb their conclusion.

We are, therefore, of opinion that both the orders appealed from and the judgment must be affirmed.

Beady and Barrett, JJ., concurred.

Judgment and order affirmed.


source: Caselaw Access Project

author: Davis, B. J.:

license: Public Domain

text:
    ANNIE E. ERWIN, Administratrix, etc., Respondent, v. THE NEVERSINK STEAMBOAT COMPANY, Appellant.

      Int&rest a'Mowed on a verdict for negligent hilling — at what rate it is to be computed —' 1879, chapter 538, construction of — 1870, chapter 78.
    On March. 5, 1880, the plaintiff recovered a judgment for $5,000 against the defendant for the negligent killing of her intestate on May 12, 1873.

      Held, that under chapter 78 of 1870 she was entitled to recover interest upon that amount from the time of the death to the time of the rendering of the verdict.
    That the liability of the defendant, for the damages occasioned by the negligent killing of the intestate, was an “ obligation” within the meaning of that term as used in the exception, contained in the act reducing the rate of interest on money to six per cent (chap. 538 of 1879), which provided that nothing therein contained should “be so construed as to in anyway affect any contract or obligation made before the passage of this act.”
    That the interest should be computed at the rate of seven per cent up to the time of the rendering of the verdict.
    Appeal from au order made at Special Term, determining the rate of interest to be allowed on the verdict recovered in this case.

      Dermis McMahon, for the appellant.

      John M. Bowers, for the respondent.
   Davis, B. J.:

This action was brought by the respondent as administrator of' William E. Albertson, to recover damages for the death of Albert-son, her late husband, by means of the negligence of the appellant. The life of Albertson was lost on the 12th of May, 1873, by a collision between a steamboat of the appellant and another boat. On the 5th of March, 1880, the respondent recovered a verdict of $5,000 against the appellant.

By chapter 78 of the Laws of 1870 (vol 1, p. 215) it is, amongst other things, provided that the amount of damages recovered in any action for causing death by wrongful act, neglect or default, “ shall draw interest from the time of the death of such deceased person, which interest shall be added to the verdict, and inserted in the entry of judgment in such action.”

The rate of interest at the time of the death in this case was seven, per cent, but on the 20th of June,' 1879 (chap. 538 of the Laws of 1879), the Legislature amended the statute fixing the rate of interest so as to read as follows: “ The rate of interest upon the loan or forbearance of any money, goods or things in action, shall be six dollars upon one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter period. But nothing herein contained shall be so construed as to in any way affect any contract or obligation made before the passage of this act.”

Under the act of 1847 (chap. 450), entitled “An act requiring compensation for causing death by wrongful act, neglect or default,” as amended by chapter 78 of the Laws of 1870 (sv/pra), the liability for damages for the wrongful act which caused such ■death arises immediately upon the.death of the injured person, and the latter statute provides that such damages shall draw interest from the same point of time. The fact that such damages are disputed by the party liable therefor, or that their amount is unliquidated, where controversy arises, until established by verdict, does not impair the liability that the law creates; and the right to interest is placed precisely upon the same footing.

It is of no consequence, therefore, so far as the question of interest is concerned, that the action to recover the damages is necessarily in tort for a wrongful act. The legislature has seen fit to attach to the damages sustained by such an injury the right to interest, and the same obligation to pay both necessarily exists in such cases.

The exception to the statute reducing the rate of interest to six per cent, that nothing therein contained shall be so construed as in any way to affect any contract or obligation made before the passage of the act, was intended, and ought to be construed as declaring, that the diminished rate of interest should not affect any existing liability carrying interest at a previously existing rate. The word “obligation” as used in that statute, is broad enough to cover all cases in which, either by contract or by operation of law, interest was attached to an existing liability. The general sense of the word “ obligation ” is “ a duty,” and Lord Coke defines it to be “ a tie which binds us to pay or do something agreeably to the laws and customs of the country.” (Inst., 3,14.) In a narrower sense it means a bond or deed under seal. But it is obviously used in the statute regulating interest, in its broadest sense, with intent to cover every liability to which interest attaches.

The verdict of the jury in this case established that the plaintiff sustained on the 12th of May, 1873, by the death of the intestate, damages to the amoimt of $5,000, and the act of 1870 declares that those damages shall bear interest from that date. The interest then established by statute was at and after the rate of seven per cent. The reduction to six per cent would have controlled the rate subsequent to the time of the taking effect of the act of 1870, but for the exception already quoted, which declares that the latter act shall not be so construed as to affect an existing liability for interest.

The result is that the plaintiff was entitled to compute the interest at seven per cent from the time of the injury to the time of entering the judgment. The error of the learned court, therefore, was only prejudicial to the plaintiff, but as no appeal has been taken on her part, the appellant has no right to complain.

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

Brady and Barrett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Davis, P. J.: Barrett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES GILMORE v. JOHN CALLAHAN, Justice, etc.

      Justice of District Court in New York — jurisdiction of, over summa/ry proceedings— when it will not he presumed.

    A justice of a District Court in the city of New York has no jurisdiction in summary proceedings, to dispossess a tenant under the landlord and tenant act, unless the premises are situated within his district.
    When the return to a c&rtioraui, issued to review summary proceedings, does not show whether or not the premises were situated within the district of the justice before whom the proceedings were had, the affidavit of the landlord being silent on that point, and the relator did not appear, but suffered judgment to be taken against him by default, this court at General Term will not take judicial notice of the fact that the premises, described in the affidavit only by street and street number, were not situated within his district and reverse the proceedings for lack of jurisdiction.

      (¿mere, as to the rule where the entire street is embraced within the statutory boundaries of a district.
    Cebtiobabi to review summary proceedings under the landlord and tenant act, had before a justice of a District Court in New York.

      M. J. Kelly, for the relator.

      P cúmel Seymour, for the respondents, the Justice and Miller & Peckham, landlords.
   Davis, P. J.:

The only question in this case is one of jurisdiction. It was lately held by this court in the People ex rel. Hambrecht v. Campbell (22 Hun, 574) that a justice of a District Court of this city has no jurisdiction in summary proceedings to dispossess tenants under the landlord and tenant act unless the premises are situated within his district. The only question left in this case is whether the court can take judicial cognizance that the premises from which the relator was removed (No. 689 First avenue, in the city of New York) are not in the first judicial district of said city.'

The several wards of the city are civil divisions of which courts are to take judicial notice as of the several towns of the State. (People v. Breese, 7 Cow., 429; Chapman v. Wilber, 6 Hill, 475 ; Bronson v. Gleason, 7 Barb., 472.) The judicial districts are also civil divisions created by statute, the boundaries of which are within the supposed judicial knowledge of the courts. The first judicial district comprises the First, Second, Third and Fifth wards of the city of New York (Laws of 1857, chap. 344), and those wards comprise the territory south of a line drawn from the Hudson river, through Canal street, Broadway, Parkrow, Spruce, Gold and Perry streets and Peck slip to the East river. (Davies’ Laws of New York, 261.)

There is nothing in the return of the justice, to which alone we are to look for the facts, to show that the First avenue is not within the first judicial district. It is, of course, within the personal knowledge of the several justices of this court that it is not so situated. But streets and avenues are not civil divisions created by statute, and their locality, termini, and the numbers of the houses situated thereon are not matters of judicial notice. It was the business of the relator to have shown distinctly the fact, that the premises from which he was removed are not within the justice’s jurisdiction. In the absence of that fact, in proceedings like this, the maxim of the law which presumes all official acts to be rightfully done until the contrary appears must intervene to uphold judicial proceedings even in inferior courts.

No one, as it seems from the return of the justice, appeared upon the return day of the summons to make any objection to the jurisdiction of the magistrate; and the fact that the territorial limits of his district did not include the First avenue, or any portion of it, is not brought to our notice in any judicial form whatever. Ye are of opinion, therefore, that the proceedings of the justice must be affirmed and the writ dismissed, with costs.

Barrett, J.:

I concur in the affirmance of this judgment, for the reason that the relator took no objection in the court below to the landlord’s affidavit; nor, in fact, does he except to it even now.

His objection to the jurisdiction proceeds solely upon the fact (which, however, he alleges without proof), that the premises are not situated within the justice’s judicial district. Upon that question I entirely agree with my brother, the presiding justice, that we cannot take judicial notice of street and number. An exception may perhaps be made as to a particular street which is wholly embraced within the boundaries of wards created and defined by statute; for of the latter we can take judicial notice. (Armstrong v. Cummings, 20 Hun, 313; The People ex rel. Duchardt v. Kelly, id., 549.)

If the tenant here had appeared and objected to the affidavit, I should have voted for reversal, for, in my judgment, every jurisdictional fact must be stated in the affidavit. Consequently the affidavit should have shown upon its face that the premises were within the first judicial district. And I cannot agree that the ordinary presumption in favor of the regularity of official acts applies to such statutory proceedings as these (where the jurisdiction is special and limited), at least to the extent indicated by the presiding justice. The effect of the rule suggested on that head would be to reverse the order of things, and to require the tenant to furnish the justice with proof of his want of jurisdiction.

Brady, J., concurred.

Proceedings affirmed; writ dismissed with costs.


author: Davis, P. J.:

text:
    FREDERICK SCHAEFFER and MAXIMILIAN SCHAEFFER, Appelants, v. WARREN SOULE, Respondent.

      Proceedings for a discharge imderr the two-thirds act — when the true cause of the debt is sufficiently set foi'th.

    In this action, brought by the plaintiff upon several promissory notes, given for money loaned and beer sold to the defendant, the defendant Soule was arrested in pursuance of an order granted on the ground that the plaintiffs were induced to loan the money and sell the beer by means of false and fraudulent representations made by him; and a motion subsequently made by him to have the order vacated was denied. After the judgment was recovered herein, Soule procured a discharge from his debts from the Court of Common Pleas under the two-thirds act. In the schedule accompaying the petition he stated the cause and consideration of tie debt to tbe plaintiff as follows, viz., “notes and open account for money loaned and interest tbereon.”

      Held,, that tbe true cause and consideration of tbe indebtedness was sufficiently set forth to confer jurisdiction over tbe proceedings upon tbe Court of Common Pleas, and that upon producing bis discharge be was entitled to an order perpetually staying all proceedings under tbe judgment herein, and ordering tbe same to be marked “ satisfied by tbe defendant’s discharge in insolvency proceedings.”
    Appeal from an order made at Special Term perpetually staying all proceedings under tbe judgment in this action, and ordering tbe judgment to be marked satisfied by tbe defendant’s discharge in insolvency proceedings.

      Ed/ma/rd Fitch, for tbe appellants.

      F. O. Reed, for tbe respondent.
   Davis, P. J.:

Tbe action in wbicb tbe judgment was recovered was brought upon several promissory notes. Tbe notes were given for money loaned and an open account for beer sold and delivered. Upon affidavits an order of arrest of tbe defendant Warren Soule was obtained, on tbe ground that tbe moneys loaned and tbe sale of tbe beer were induced and obtained by fraudulent representations. On a motion founded upon additional affidavits, tbe court refused to discharge tbe order of arrest. After tbe judgment was recovered tbe respondent Soule made application to tbe Court of Common Pleas, under tbe two-tbirds act, for bis discharge. In the schedule of bis debts accompanying bis petition, tbe debt of tbe plaintiff and tbe amount thereof were entered, and tbe cause and consideration thereof were stated as follows: “ Notes and open account for money loaned and interest tbereon.” Such proceedings were had in tbe Court of Common Pleas upon tbe petition and application that afterwards a discharge was granted to tbe respondent Soule. Upon such discharge be afterwards moved, at a Special Term of this court, for a perpetual stay of all proceedings under and by virtue of the judgment, and for an entry upon tbe docket that tbe judgment was satisfied by the' defendant’s discharge in insolvency proceedings.

The only point made is whether the respondent, in the schedule of his debts, had set forth the true cause and consideration of the indebtedness as required by the statute.

In disposing of the case below, the court (Daniels, J.), said as follows: “The true cause and consideration of the defendant’s indebtedness are set forth in the papers accompanying his petition and application. The fraud of which he had been guilty formed no part of the consideration of such debt. That was only important as the foundation of the plaintiff’s right to arrest him. It formed no part of the contract or obligation on which the action was brought and for which the judgment was recovered. Both were for the indebtedness itself, and for nothing more than that, and by the express terms of the statute, after the discharge was granted to the debtor, his person was no longer liable to arrest in this action. (3 R. S. [6th ed.], 19, § 38.) It accordingly follows that the plaintiff’s proceedings must be stayed, for in no other manner can complete effect be given to this provision of . the law.”

We are of opinion that this is a correct view of the case. The cüuse and consideration of the indebtedness was the money loaned and the beer sold and delivered. The alleged fraud and the order of arrest thereon were purely collateral matters. It is not necessary to set them forth in order to give the court in which the petition was presented jurisdiction to hear and dispose of the matter. This question now arises collaterally, and notin a direct proceeding to review the discharge. In The People v. Stryker (24 Barb., 649) it was held that even if it be apparent from the papers that the true cause and consideration of the alleged indebtedness of the debtor to his principal creditor are not set forth in the schedule annexed to the petition; yet that is matter proper for the consideration and'determination of the judge who heard the petition, where the creditors had the notice required by the statute to show cause why an assignment of the insolvent’s estate should not be made, and he be discharged from his debts, and that if they neglected to appear and raise objections they should be concluded. ’Whether that view be sound or not in a case of certiorari to review the order of discharge, it has nevertheless been decided to be conclusive where the question, as it does here, arises collaterally. (Pratt v. Chase, 19 Abb. Pr., 150; Deyo v. Van Valkenburgh, 5 Hill, 242; American Flask Co. v. Son, 3 Abb. [N. S.], 233.)

It was held in Deyo v. Van Valkenburgh (supra), that discharges of this character operate upon judgments recovered in actions of tort, upon which, of course, the defendant can be arrested.

It is insisted by the appellant’s counsel that the discharge in this case is invalid within the rules laid down by the Court of Appeals in the Matter of Brady (69 N. Y., 215), in which the judgment of this court was affirmed. That case holds that a discharge under part 2, chapter 5, title. 1, article 6 of the Revised Statutes, of an imprisoned debtor, should not be granted where it appears that the affidavit annexed to his petition is untrue, because of a previous disposition of his property made with intent to defraud the creditors who opposed his discharge. That case presents a very different question from that before us now.

For the reasons assigned by Mr. J ustice Daniels, we think the order should be affirmed, with ten dollars costs and disbursements.

Beady and Baeeett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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

text:
    JOSEPH HARTMAN, Respondent, v. THE MAYOR, ALDERMEN, and COMMONALTY OF THE CITY OF NEW YORK, Appellants.

      Attendant in District Court in New Yrn'k — admissibility of evidence showing that the aMthority of the appointing officer has been revoked — Vm'iance between pleading and proof— Bffeet of Bom'd of Apportionment making no appropriation.

    The plaintiff recovered a judgment for an amount alleged to he due to him for his salary as attendant for the Fourth District Court of the city of New York, from January 1, 1877 to June 1, 1877. He offered evidence tending to show that he had been appointed to the office of janitor by the justice of the said court, on the 15th day of March, 1870, who acted in accordanee with a resolution of the common council, approved by the mayor on that day. Upon the trial the defendant offered to prove that on December 28, 1876, the resolution conferring such authority upon the justice was repealed.

      Held, that the court erred in excluding the evidence.

      Qumre, as to the plaintiffs right to recover, without an amendment of the complaint, for services alleged to have been rendered as attendant upon proof of his appointment as janitor.

      Semble, that where the hoard of apportionment of the city of New York makes no appropriation for the pay of such an officer, that he cannot recover for services thereafter rendered.
    Appeal from a judgment in favor of tbe plaintiff, entered on tbe verdict directed by tbe court. Tbe plaintiff brought tbis action to recover for services rendered as an attendant in tbe Fourth District Civil Court of tbe city of New York, from January 1, 1877 to June 1, 1877. He offered in evidence tbe following appointment:
    Crrv oe New Yoke, Foukth Disteiot Couet House, i 163 East HoustoN Steeet, March 15, 1870. \

    Joseph HáRtmaN, Esq.:
    Sir.— Yon are hereby appointed janitor of tbe District Court for tbe fourth judicial district, in accordance with resolution of tbe common council passed March 15, 1870.
    ANTHONY HARTMAN,

      Justice.

    And also a resolution of tbe common council of tbe city of New York which was as follows:

      Resolved, That tbe justices’assigned to each of tbe Police Courts in tbis city, and tbe justices of tbe several District Civil Courts be and they are hereby authorized and empowered to appoint a janitor for each of said Police and Civil Courts, at an annual salary cf $1,500 each, payable monthly.
    Adopted by board of aldermen March 14, 1870, and by tbe board of assistant aldermen March 14, 1870.
    Approved by tbe mayor, March 15, 1870.

      David J. Deem, for tbe appellants.

      ElUot Scmdford, for tbe respondent.
   Davis, P. J.:

There are numerous reasons why tbis judgment should be reversed and a new trial ordered.

The plaintiff sought to recover for services as an attendant of the Fourth District Civil Court of the city of New York, alleging that he had been employed by the defendants and appointed by the justice of said court as an attendant or officer of said court, at an annual salary of $1,500; and that he had not been paid for his services from January 1, 1877 to June 1, 1877, although he had performed his duties. These allegations were distinctly denied by the answer. The plaintiff proved that he was appointed the janitor of that court on the 15th of March, 1870, by Anthony Hartman, justice of the District Court of the fourth judicial district, in accordance with a resolution of the common council passed on that day. This evidence was objected to on the ground, amongst others, that the action was brought to recover the salary of an attendant, and not that of a janitor. It appeared that the office or position of janitor, and attendant were entirely distinct, and that,the salaries of attendants were $1,200 and the salary of the janitor $1,500. The plaintiff did not ask leave to amend his complaint in any respect, but was allowed, against the objection of the defendants, to prove his appointment and service as a janitor and recover the salary for such service. Notwithstanding the averments of his complaint upon which issue had been taken, the court might properly have allowed an amendment upon such terms as might be deemed proper, on application by the plaintiff, if satisfied* that the defendants had not been misled by the allegations of the complaint. But the defendants would be entitled to be heard upon the question of amendment and its termsj and it was not proper, therefore, to overrule the objection and allow a case to be proved different from that alleged. The judgment-roll in this action, made upon the pleadings and verdict, does not show upon its face a defense to a future action to recover for salary as janitor. We might, perhaps, make the proper amendment now, but as there must be a new trial for other reasons we think it unnecessary to do more than suggest this error.

It appeared that the plaintiff was appointed by resolution of the common council conferring the power to make such appointment on the justice of the District Court. The justice derived power from no other source. The defendants offered to show that that resolution giving the authority was repealed December 28, 1876. The evidence was excluded. This riding was erroneous. The time for which the plaintiff has been allowed to recover was subsequent to January, 1811. The rescission of the resolution under which the appointment was made terminated the authority of the justice to continue the services of the plaintiff. The resolution should have been received; and if it established what is claimed by the defendants, the further continuance of the plaintiff in the position of janitor would have been without authority of law and without power.

Again the defendants offered to show that the justice of the Fourth Civil District Court submitted. to the board of apportionment his estimate, ashing for the salaries of two attendants at $1,200, and one janitor at $1,500 ; that the board of apportionment struck out the item for janitor’s salary, and that the apportionment finally determined upon by the board provided only for two salaries of $1,200 each for two attendants.

Section 112 of the charter (chapter 335 of the Laws of 1873) provides that an estimate of the expenses to be incurred for the ensuing year, for salaries of a judge, his clerks and attendants, or officers, shall be made by the justice and transmitted to the board of apportionment; that such estimates shall be considered by the board of apportionment, together with any objections thereto or suggestions made by the board of aldermen, and finally adopted; and when adopted and signed, the several sums shall be and become appropriated to the several purposes and departments therein named. The statute further provides that no department or officer shall incur any expense for any purpose in excess of the sum appropriated for that purpose.

Since the legislature had referred to the board of apportionment the question of making appropriations for the salaries of attendants and officers, it is difficult to see why the restrictive provision of the statute does not apply in cases like the present, where the board has distinctly refused to make an appropriation for a janitor. It is not necessary to determine that question; but it seems quite clear to us that the court below should have received all the evidence bearing on the subject, instead of rejecting it, -so that the court could have had the transactions of that board fully before it.

It is not necessary to go through all the several questions raised on the trial. Every particle of evidence offered on the part of the defense was excluded, and in doing this the errors committed were such as clearly demand a reversal of the judgment and a new trial.

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

Brady, J.:

I concur in the result.

Barrett, J.:

I am in favor of a new trial upon the ground that the testimony which was excluded tended to make out a valid defense; but I am not prepared to say that the repeal of the resolution conferring upon the justice the power to make such appointments amounted, vpso facto, to a removal of the plaintiffs. Upon this and the other questions discussed, I prefer to reserve my judgment until the evidence is fully before us.

Judgment reversed; new trial ordered; costs to abide the event.


author: Per Curiam : Van Brunt, J.:

text:
    THOMAS H. RODMAN and others, Respondents, v. JEREMIAH DEVLIN and HENRY F. SPAULDING, Executors, etc., of DANIEL DEVLIN, Appellants, and JAMES M. WILLIAMS, Respondent.

      Agreement — when fie only remedy of a pa/i'ty thereto is in equity — when his claim is only barred by the ten years' statute of limitation — When an action is not barred by a judgment entered in a former action.

    On February 23, 1865, tbe plaintiffs’ assignor Schell and others signed an agreement, by -which they agreed to pay the amounts set opposite to their names, for the purchase of certain real estate, to Daniel Devlin, the payments to be made to said Devlin, the defendants’ testator, in whose name the title of the property was to be taken, the property to be put into an association for its development, upon such terms as the subscribers might thereafter elect. On February 12, 1875, this action was brought to compel the said Devlin’s executors to account for the moneys received and expended by him under the agreement.

      Held, that the plaintiffs had no right to bring an action at law upon the agreement, and that as their only remedy was in equity the ten and not the six years’ statute of limitation was applicable to the claim.

      In 1867 Getty, one of the subscribers, brought an action against Devlin, to which all the other subscribers were made parties, in which he asked for a general accounting, and that the share of each party, including that of Schell, the assignor of the plaintiffs in -the present action, should be ascertained and determined. In that action Schell interposed no answer. Subsequently an order was made therein allowing the complaint to be amended, and limiting the benefit of the action to the plaintiff and those defendants who had atswered therein.

      Held, that the judgment entered therein did not bar Schell or his assignees from maintaining this action.
    Appeal from an interlocutory judgment of the Special Term, in favor of the plaintiffs, directing an accounting, etc.
    The action was begun by Richard Schell as plaintiff for an accounting. Daniel Devlin, now deceased, the appellants’ testator, with one Arkenbnrgh and Bryan, had signed an agreement for the purchase by them and other persons, whose subscriptions were solicited and obtained to it, of certain oil lands and leases of lands in Ohio. Among the subscribers were Richard Schell and Duffy and "Williams, of whom James M. Williams is survivor, to the amount of $5,000 each, which was paid to Daniel Devlin, the treasurer of the parties. It was claimed, and found by the court, that, before the date of this agreement, the three individuals above named had purchased and were owners of these lands and leases, and that they had paid for them a much smaller sum than that at which the subscribers had agreed to purchase them, and that these facts had not been disclosed to the other subscribers, and that the three had divided among themselves the difference between the original cost of the lands and leases and the amount which the subscribers paid for them under the agreement.
    The agreement is dated the 23d day of February, 1865, and- on the 15th day of March, 1865, Duffy and Williams, and on the 16th day of March, 1865, Schell, paid their respective subscriptions.
    The action was begun on the 12th day of February, 1875, and the defendant Williams served his answer subsequent to the 1st of October, 1875. Both the plaintiffs and the defendant Williams claim judgment against the executors for an accounting, etc.
    In the year 1867, Robert P. Getty and others commenced an action, in which all the subscribers to the agreement were made parties, either as plaintiffs or defendants, Schell and Duffy and Williams being included among the latter. Schell served no answer. Thereafter an order was made therein, amending the complaint and limiting the benefit of the action to the plaintiff and those defendants who had answered. (See Getty v. Devlin's Executors, 70 N. Y., 504.)
    The defenses were: 1st. The statute (six years) of limitation. 2d. The action and judgment in the aforementioned suit of Gett/y v. Devlin's Executors.

      Jolrn E. Devlin, for the appellants.

      Francis FT. Bangs and Francis Lynde Stetson, for the plaintiffs, respondents.

      F. F. Mcvrbwy, for the respondent Williams.
   Per Curiam :

The following opinion was delivered in this case by the learned judge who presided at the trial:

Van Brunt, J.:

Before considering the points raised by the counsel for the defendants, it is proper that we should see just what has been proven in this action.

The plaintiff proved the signing of the agreement in the complaint mentioned, which is as follows:

We, the undersigned, do hereby subscribe and agree to pay forthwith, the amounts set opposite our names for the purchase of property in Washington, Monroe and Athens counties, Ohio, as per memorandum annexed, being leasehold interest on 745 acres and 207 acres in fee, at the sum of one hundred and twenty-five thousand dollars ($125,000), payments to be made to Daniel Devlin, Esq., at Broadway Bank, trustee for the purchasers, in whose name the title to property shall be taken, said property to be put into an association for development, upon such terms as these subscribers may elect after this subscription is completed. New York, 23d February, 1865.”

He then proved the payment of his subscription to Daniel Devlin, and he now asks in this action for an account of the expenditure of this money, and that is all.

- The defenses are that the plaintiff has no cause of action; that the judgment in the case of Getty v. Devlin is a bar to this action.

As to the first defense, it is sufficient to say that a cestui que trust has the right to file a bill to call his trustee to an account, when no accounting has taken place between the parties after the purposes of the trust have been fulfilled.

The claim that the statute of limitation has barred the plaintiff’s claim is founded upon the assumption that the plaintiff had also a remedy at law as well as in equity.

I am entirely unable to see what cause of action at law the evidence in this case establishes. No fraud has been proven or attempted to be proven which would give the plaintiff a right of action at law. He has simply proven the deposit of the money in the hands of a trustee, and he now asks the trustee to account, and for this purpose he has made parties to this action every person who can have any interest in the accounting.

It seems to me that this is purely an equitable action, and that the plaintiff had no remedy at law.

The judgment in the Getty suit would probably have been a bar were it not for the form of the order entered in that action February 28, 1873, allowing an amended complaint to be. served. It was not at all necessary for the defendant Schell to answer in that action in order to protect his rights.

The plaintiffs asked for him all the relief he could get by answering, and all. that it was necessary for him to do was to see that his rights were protected upon the accounting; but before any accounting was ordered or decree entered, by the order allowing an amended complaint, all the relief in the action was limited to those who had answered, and the action was thereafter prosecuted only for the benefit of the parties who had complained or answered, and by this order the defendant Schell was deprived of all participation in the benefits of that action, and which he was entitled to by virtue of the complaint served upon him. I fail to see how any judgment in the Getty suit could be a bar to this action,”

We have gone over the points furnished us by the learned counsel and have examined the authorities cited. The result of this examination, and of a careful consideration of the case, is the opinion that the judgment of the Special Term, for the reasons there assigned, is correct and should be affirmed. We might dwell more fully and elaborately upon the positions taken, but without adding anything to their strength. We are quite satisfied to affirm the judgment upon this opinion of Mr. Justice Yan Brunt.

Present — Davis, P. J., Brady and Barrett, JJ.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant, v. CORNELIUS FURGUESON, Respondent, Impleaded with JAMES JOURDAN, and others.

      Chapter 604 of 1875 — not unconstitutional as regulating commerce.

    Chapter 604 of 1875 prohibiting the deposit of carrion, offal or dead animals in the rivers and bays therein mentioned, or its transportation through the same, except subject to the restrictions therein prescribed, is in the nature of a police regulation, and is not unconstitutional as encroaching upon the powers of Congress to regulate commerce.
    Appeal by the plaintiff from a judgment rendered at Special Term in favor of the defendants.
    The action was brought to restrain the defendant Furgueson, a shore inspector appointed under chapter 604 of 1875, and the police commissioner of Brooklyn, from interfering with or arresting the persons employed by the board of police of New York in removing ashes and street refuse upon scows and casting the same into the sea outside of the harbor of New York.

      William G. Whitney, for the appellant.

      Wi/nehester Britton, for the respondent.
   Per Curiam :

The act of 1875, chapter 604, was passed to prevent the deposit of carrion, offal or dead animals in the North and East rivers, or in the Bay of New York, or Raritan bay, within the jurisdiction of the State of New York.

It is declared by the first section that it shall not be lawful for any person or persons to throw or cast any dead animals, carrion, offal, or other putrid or offensive matter in the waters of the North and East rivers adjoining the counties of New York, Kings, Port Richmond, or in the Bay of New York, or in Raritan bay, within the jurisdiction of this State, or in the waters of Jamaica bay.

By the second section it is declared that it shall not be lawful for any person to sail, navigate, or move, or aid, or direct, or assist in sailing, navigating, or moving, or to be employed upon or to accompany any boat or vessel, containing any such animal or material as aforesaid, through or upon the waters of that part of New York bay known as the narrows, and lying between Forts Wadsworth and Hamilton, or any part of said bay south of said narrows, with the intent or for the purpose of throwing or casting such animal or material, or any portion thereof, into the ocean or sea, or into any portion of the waters mentioned in the act, without a permit in writing first obtained therefor, from the inspector to be appointed under the act, who shall have the power of granting such permits from time to time as he shall deem proper, and which shall not be inconsistent with the first section of the act; and having such regard to the course and condition of the then existing winds and tides as, in his judgment, shall best tend to prevent the subsequent return or deposit of any such contents of said boat or vessel within the waters of this State, if cast upon the waters beyond the jurisdiction thereof.

The object of the act was, by a proper system of espionage, to prevent the casting of offal into the bays named, or into the ocean, except at such time and in such manner as would prevent its return into the waters of the bays and rivers named, or to the shores of either. This object is connected with the purity of the waters and the sanitary condition of the shores which, by the return and accumulation of offal or garbage, would be affected to • some extent. The act is therefore, one in the nature of a police regulation not designed to interfere with commerce in any respect, but with the transportation of offal with the intent of depositing it in the places named in the act. Its provisions do not absolutely prohibit the transportation of offal or garbage, but conditionally only; the right to do it depending upon the permit to be obtained from the inspector: It, indeed, contemplates the removal of offal and garbage and its deposit in the waters designated in the act; but at such a time and under such circumstances as the inspector may regard as best calculated to prevent the evil which the act was designed to correct. The object of the act was not to interfere with, or regulate, or control commerce in any general sense, or to control it in any particular sense, but to- prohibit the use of the navigable waters named for purposes which might result in an epidemic or in affecting the healthiness of the bays or rivers mentioned in the act.

It would seem that this statement of the characteristics of the act would be sufficient in itself to demonstrate, that it in no way encroaches upon the power of Congress to regulate commerce or navigation, and is, therefore, not unconstitutional.

The views expressed by the learned judge presiding at the Special Term we think were correct, and that the disposition made of the case by him is unassailable. The judgment should, therefore, be affirmed with costs.

Present — Davis, P. J., Beady and Barbett, JJ.

Judgment affirmed with costs.


text:
    In the Matter of THE PEOPLE by their Attorney-General, v. THE SECURITY LIFE INSURANCE AND ANNUITY COMPANY.

      AUowa/nces — when not granted to unsuccessful claimants upon the funds in the haoids of a receiv&i'.

    Where counsel have appeared and presented claims, in behalf of their clients, against funds in the hands of a receiver of an insolvent life insurance company, and the claims have been rejected, and the orders rejectingthem have been reviewed and affirmed, upon appeals taken therefrom to the General Term and Court of Appeals, and neither of the courts have ordered that costs of the proceedings or of the appeals should be paid to such claimants, the Special Term should not grant an application made to it by the counsel for the unsuccessful claimants for an order granting them allowances in the nature of costs.

      Appeal from an order made at Special Term, granting allowances out of the funds in the hands of the receiver to counsel who have appeared and urged various claims against the same.

      Hamilton dole, for the receiver.

      William Barnes, Robert Sewell and It. J. Moses, Jr., for the respondents.
   Davis, P. J.:

The appeal in this case is brought by the receiver from an order of the Special Term, confirming the report of a referee awarding allowances to the several respondents, amounting in the aggregate to the sum of $9,550.

The services for which the allowances have been made, were in all eases voluntary efforts, and applications on the part of claimants against the fund in the receiver’s hands which have in each instance been unsuccessful and disallowed by the order or judgment of the court. So far as we are able to ascertain from the papers before us it would seem that the course and action of the receiver, or his proposed course and action in respect of such claims have been sustained by all of the several tribunals to which the questions have been presented.

The several questions raised by these claims have been carried for the most part to the court of last resort, in each instance with results unfavorable to the several claims; and in no case has either of the courts ordered or adjudicated that costs of the proceedings or of the appeals should be paid to such claimants. In the case in which substantially all the claims were finally presented and argued, the court distinctly refused to award costs to any of the parties except the receiver, and one Gilliland, who was successful upon his particular appeal. As to them, the court ordered that costs of the appeal be allowed to the receiver and to Gilliland to be paid out of the assets, but none to the other parties. (People v. Security Life, 78 N. Y., 114-130.)

On another of the appeals, upon a motion made to correct a remittitur as to costs, the Court of Appeals took occasion to say:

“ In the allowance and adjustment of claims upon the making of dividends as well as in the settlement of the accounts of the receiver all the creditors are entitled to a hearing, and occasion may exist for permitting creditors to come to the aid of the receiver in the defense of individual claims made by action or by petition, and we must assume that the occasion existed here for such intervention. But it does not follow that such intervening creditors are entitled as of right to costs, in proceedings to which they became parties, either out of the fund or against the adverse party. The receiver, in case he succeeds, is entitled to costs and should have them, to the end that the fund may not be unnecessarily and improperly burdened with the costs of litigation. Creditors appearing voluntarily, if entitled to costs, might not only ruin everyone attempting to assert a claim against the company but exhaust the fund which belongs to creditors and which should be preserved. Ve are of the opinion that creditors so coming in of their own motion, except in special cases (and possibly there may be cases in which the court may exercise a discretion as to costs), must intervene at their own expense so far as the particular litigation is concerned.”
“ In this case we ought not to grant but one bill of costs, and that belongs to the receiver in relief of the fund in his hands; and as he is the only real contestant and litigant, the only party whose presence is enforced and is necessary, he has a claim paramount to that of volunteers. The remittitur is right as it is and entitled the receiver to the costs of the appeal. The motion should be denied.” (People ex rel. v. Security Life, 71 N. Y., 222, 227.)

"We are not able to find that at any stage of any of the proceedings of these defeated claimants the court has thought proper to make any allowance of costs to either of them. On the contrary the intimations in the decision above cited are emphatic and strong, that the claimants were not entitled to and ought not to have the costs of their fruitless proceedings.

After the rights of all parties have been finally determined by the decisions of the courts, and after the fund in the hands of the receiver has been brought to a condition of readiness for distribution, reduced as it has been by the heavy expenses of litigations, in part at least caused by the presentation of claims not sustained, a petition is presented to the court below for allowances for the services and expenses of counsel in [the presentation and advocacy of the defeated claims in the various tribunals of the State. It was the duty of the receiver to oppose and resist tbe application. While it is well established that courts in contests over trust and other funds of this character may under proper circumstances, award costs to the several contestants, yet that ought always to be done, if at all, in disposing of the litigation by the final judgment of the court to which it is presented. Undoubtedly the court at Special Term or at General Term, or on the final appeal to the Court of Appeals, might have exercised the discretionary power with which it is vested, and have ordered the expenses of the several parties to the litigation to have been wholly or partially paid out of the fund. But it has never been customary, nor ought it to be allowed, that where neither of these several courts has given any direction to that end, but have all treated the claim as one in hostility to the rights of the receiver or trustee, and especially where they have directly or by necessary inference denied costs, that defeated parties should be permitted by petition to apply, as in this case, to the court at Special Term for an order for allowances in the nature of costs. All questions of costs and allowances in such cases ought, as a general rale, to be regarded as adjudicated adversely to the claimants, by the determinations or judgments already made. There are sound reasons why such subsequent applications to the Special Term ought not to be allowed. To establish such a course of procedure, would be to invite volunteer claimants to present and contest their claims, greatly to the embarrassment and delay of the distribution of the assets in the hands of the receive!’, thereby charging them with the costs and expenses to which the receiver is subjected in resisting their claims, and preventing for greater or less periods the payment of the funds to creditors or parties entitled to receive them. The opportunity afforded by such a practice, ultimately to obtain allowances out of funds which can never be too closely guarded for the protection of the real beneficiaries, would lead to onerous and unjust litigations and delays.

We tbinlr it ought to be the established rule that no such costs or allowances can be given, except where the court, in the process of the litigation over the claim presented, distinctly adjudicates that the claimant is in equity entitled to them. For this reason alone we thinlr the court below should have denied the motion. No doubt tbe services rendered by the respective counsel were of a character entitling them to compensation at the hands of their clients. But the ultimate results have shown that they were of no value to the fund in the hands of the receiver, either for its protection or increase, and in such a case it would not be the duty of the court to allow them to operate to the injury of the fund by its decrease.

There is no precedent to justify that course, and none should be made. One of the counsel for the respondents has appended to his points copies of some forty orders made at Special Terms in cases of insolvent insurance and other companies, treating them as precedents to justify the order in this case. But we cannot so regard them. None of them seems to have received the sanction of a General Term, and some of them, notably in the life insurance cases, seem in the absence of explanation, to have been extraordinary uses of discretion. In the absence of the facts upon which they may have been based, we are not at liberty to go further than to decline to follow them as precedents.

The receiver in this case is entitled to credit for having brought the order for review to an appellate court; and it is hoped that his course will be a precedent by which the receivers of similar institutions may be lead to protect the funds in their hands against all unwarrantable allowances.

We think also that if the court below possessed discretion to make the order, it was improvidently exercised, and that it is our duty for that reason, and without considering the question of power, to reverse the orders and deny the prayer of the petition.

Beady and Baeeett, JJ., concurred.

Order reversed and petition denied.


author: Barrett, J.:

text:
    In the Matter of THE PEOPLE by their Attorney-General, v. THE SECURITY LIFE INSURANCE AND ANNUITY COMPANY.

      Valuation of a policy in am, insobent life insurance company — the subsequent death of the holder mil not cmfhorize a revaluation of it.

    When, after a policy in an insolvent insurance company has been valued and placed upon the receiver’s dividend list, the holder thereof dies, the court will not, upon the application of his executor, direct that the policy be revalued as a death claim and order the receiver to pay dividends thereon upon the basis of the latter valuation.
    Appeal from an order made at Special Term, denying an application to revalue a policy.

      Raphael J. Moses, Jr., for tbe appellant.

      Hamdlton Cole, for tbe respondent.
   Barrett, J.:

Prior to tbe 2d of July, 1879, William Bischoff, a policyholder in tbe Security Life Insurance and Annuity Company, presented bis claim against tbe receiver of that company. Tbe policy was then valued at $239.12, and placed upon tbe dividend list at that amount. In making tbe valuation, tbe receiver’s assistant used tbe American experience table of mortality and interest at tbe rate of four and one-balf per cent per annum, assuming Mr. Bischoff to be alive. Since then Mr. Bischoff died, and his executor now moves to change tbe valuation of tbe policy from $239.12 to $1,158.09, and for an order directing tbe receiver to pay tbe dividend on tbe basis of tbe latter valuation. It is conceded that if tbe policy were valued as a death claim its value would be $1,158.09.

But tbe receiver objects to our disturbing tbe existing status, urging that, as there are numerous policies, a change of valuation would make tbe claims against tbe receiver a constantly shifting quantity. We agree with him that claims which have been duly estimated and valued upon tbe principle laid down in the referee’s report, and then placed at such fixed and settled valuation, upon tbe dividend list, should not be reopened by after-occurring events. If we were to allow such a practice to prevail it would inevitably lead to great confusion, uncertainty and embarrassment. Dividends are largely based upon the amount of liquidated or adjusted claims. Every application resulting in an increase of such claims might require a. minute calculation as to how far the dividend declared would be effected by the change. Then as to this particular application, there is no good reason why the adjustment made during Mr. Bischoff's life should be interfered with. The amount then fixed was the value of the policy at that time. That was an adjustment upon correct principles of the claim against the receiver. It should not be altered because of the coincidence of the policyholder’s death within the period of the probable duration of his life, as ascertained by the mortality table. As well might the receiver — had Mr. Bischoff lived beyond that period — claim a reduction. If the adjustment is thus to fluctuate in accordance with the subsequent facts, of what use a valuation at all under the table ?

We think the court below exercised its discretion judiciously in declining to reopen the proceedings, and the order appealed from should be affirmed, with ten dollars costs and the disbursements of the appeal.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE H. SISCO, Appellant, v. THE BOARD OF COMMISSIONERS OF PILOTS, Respondent.
    Pilots— the regulation of, is left hy congress to the different States — Chapter 467 of 1853, as emended hy chapter 196 of'1854 — pow&>' of hom'd of pilots weated hy — the hom'd map prohibit the use of steam vessels for the purpose of pilotage.

    Under the act of congress of August 7, 1789, providing that all pilots in the hays and harbors of the United States shall continue to he regulated in conformity with the laws of the several States then existing, or which such States might thereafter enact, the legislature of this State has the power to create a hoard of pilots and refer to it the determination of the qualifications of pilots and of the suitability and qualifications of the vessels to he employed hy them.
    Under section 9 of chapter 467 of 1853, as amended hy section 1 of chapter 196 of 1854, the Board of Commissioners of Pilots thereby created have power to ’ prescribe the kind of boats to be used by pilots, and may exclude steam vessels from being used for that purpose and suspend or revoke the license of any pilot using a steamboat in the pilotage service.
    Appeal from a judgment entered upon a trial bad at Special Term dismissing a writ of prohibition. .
    By an act of tbe congress of tbe United States, approved August I, 1189, it was provided “that all pilots in tbe bays, inlets, rivers, harbors and ports of tbe United States shall continue to be regulated in conformity with tbe existing laws of tbe States, respectively^ wherein such pilots may be, or with such laws as tbe States may, respectively, hereafter enact for that purpose until further legislative provision shall be made by congress.”
    In June, 1853, tbe State of New York enacted a law (chap. 461 of 1853) entitled “An act to provide for tbe licensing and government of and regulating pilotage in tbe port of New York,” which last-mentioned act, as amended by tbe several acts amendatory thereof, and particularly chapter 196 of 1854, was, at tbe time of tbe issuing of tbe writ of prohibition in this proceeding, and is now in full force, and tbe defendants herein are tbe Board of Commissioners of Pilots provided for in tbe said act. Tbe only sections of this act which relate to tbe question raised upon this proceeding are as follows:
    “ Seo. 9. Tbe commissioners, or a majority of them, shall, with all convenient speed, proceed to license for sucb term as they may think proper so many pilots as they may deem necessary for the port of New York.” * * * *

      “ No license shall be granted to any person holding any license or authority from or under the authority or laws of any other State; and the said commissioners, or a majority of them, shall have the power and authority to revoke and annul the license of any person so licensed by them to act as a pilot who shall not be attached to a boat approved of by said board, or who shall be guilty of any intoxication or other misconduct while on duty.”
    “ Seo. 12. The said commissioners shall have the power to regulate the stationing of pilot boats for the purpose of receiving pilots from outward-bound vessels, and may alter or amend any p.YiRting regulations for pilots, and make and duly promulgate and enforce new rules or regulations not inconsistent with the laws of this State or of the United States, which shall be binding and effectual upon all pilots licensed by them and upon all parties employing such pilots. * * * They may declare and impose and collect fines and penalties * * * to prevent any of the pilots licensed by them from combining injuriously with each other or with other persons, * , * * and the said commissioners may establish and enforce all other needful rules and regulations for the conduct and government of the pilots licensed by them and the parties employing them.” * * *
    Under the powers conferred by the act the commissioners duly made and promulgated from time to time certain by-laws, among which are the following:
    “ 32d. No boat shall withdraw from service (except for ordinary repairs) without a written application to the board explaining the object of the withdrawal, the same to be subject to the decision of the board.”

      “ 39th. From and after the adoption of this by-law the number of boats employed in thejiilotage service of the port of New York, by the way of Sandy Hook, shall not be increased without the consent of the board, nor shall any boats not now so employed be employed in said service without such consent.”
    In the year 1879 the relator was a duly licensed Sandy Hook pilot, and attached to pilot boat No. 10.

      On the 20th of May, 1879, the relator applied to the defendants for permission to build a steam pilot boat, to which the defendants replied that his application was denied, there being no vacancy in the number of boats as fixed by law.
    On the 12th of August, 1879, one Ralph Noble, also attached to pilot boat No. 10, asked permission on behalf of himself and the boat’s- company to transfer the No. 10 to some other boat.
    The commissioners thereupon gave permission to replace pilot boat No. 10 by some other boat, retaining the same number.
    The defendants having learned of the purpose of the relator and his associates to introduce a steam pilot boat, sent, the following communication to the relator and his associates:
    Office of the Board of CommissioNErs of Pilots,
    No. 40 Burling Slip,
    New Tore, ¡September 2, 1879.
    R. Noble and others, pilots attached to the pilot boat “ Widgeon ” ;
    GeNtlemeN.— A report that you are about to place a steam vessel in the pilot service of this port, and an application from certain of the New York pilots for action by this board adverse to the admission of a steamer into said service having been received this day, I am directed by the board to call upon you to state your intention in this respect, and to show cause, if any exist, why such adverse action should not be taken.
    Yours respectfully,
    D. A. NASH,

      Secretary.

    To this the relator and his associates sent the following reply on September 9, 1879:

      To the Boa/rd of Commissioners of Pilots of the Port of New York :

    Gentlemen.— In reply to the order to show cause, etc., of the second inst., on the part of myself and company of pilot boat Widgeon, No. 10, I would respectfully state that it is our intention and desire to build or purchase a steamboat to replace the pilot boat Widgeon, No. 10, for our own convenience and for the benefit of the commerce of the port of New York. Our reasons for desiring to replace our present sailboat by a steamboat are:

      1st. At times we bare found it impossible to reach vessels by sail. This can be obviated by the use of a steamboat.
    2d. It is frequently difficult in winter to return to port with a sailboat, in consequence of ice and adverse winds. This difficulty will be overcome by the use of steam.
    3d. In winter it is frequently impossible to leave port with a sailboat, in consequence of ice and adverse winds. With steam no such difficulty would be experienced.
    ' 4th. In calm weather it is often very difficult to get in or out of port, or to reach and serve incoming vessels 'with a sailboat. With steam this would never occur.
    5th. The use of steam is permitted, and has proven highly advantageous to New Orleans and elsewhere. Why should it not be permitted in New York?
    6th. We are now frequently compelled to hire tugs to bring us in and out of port. If we are allowed to pay for the use of steam power, why should we be prohibited from owning it ?
    7th. The “Widgeon” is unseaworthy, and has so been pronounced by competent inspectors. If we can replace her by an able steamboat at a price which in our judgment would prove profitable, why should we be prohibited from so doing ?
    Respectfully,
    RALPH NOBLE.

      For self and compamy of pilot boat No. 10.
    Dated New YobK, September 8, 1879.
    The relator and his associates, about November 1, 1879, having had no further communication with the respondents, secured the steamboat “ Hercules,” transferred the number 10 to her, and were preparing to get her ready for sea.
    On November 7, 1879, the respondents passed the following resolution:
    42d. Until it shall be established, in the opinion and judgment of this board, that the introduction of steam into the pilotage service will add to its general efficiency, and can be made with a proper regard to the interests already existing, which have been created under the present law, and until this board shall, by general regulation duly made and promulgated in the exercise of the discretion and power vested in it, authorize tbe use of steam vessels in tbe pilotage service, no vessel propelled in whole or part by steam shall be substituted for any boat withdrawn from service, nor shall any vessel propelled in whole or in part by steam be used or employed as a pilot boat by any of the pilots; and any pilot violating this rule shall be punishable by suspension for such period as the board shall determine, or by a revocation of his license.
    The relator and his associates never applied to the defendants for their approval of the steamboat IJei’cules as a pilot boat, but without such approval commenced the pilotage service. Complaint having been made of a violation of by-laws Nos. 39, 41 and 42, the relator was notified by the respondents to attend before them on the twenty-fifth day of November, when a hearing and determination would be had by the board of the matters complained of.
    The relator thereupon obtained the writ of prohibition now before the court, upon an appeal from the order dismissing it.
    The following opinion was delivered by the court at Special Term:
    “YaN BeuNT, J.: .
    “ There are only two questions to be discussed in the disposition of this case: First. Had the respondents the power to pass the by-laws in question ? Second. Had the board the right to proceed against the relator because of the use of a steamboat, the same not having been approved by the board as a pilot boat ? It is not at all necessary here to discuss the nature and office of a writ of prohibition. If the Board of Commissioners of Pilots had jurisdiction to act, then this writ- must be dismissed. It is only when action without jurisdiction is about to be taken that writs of prohibition can issue.
    “It is claimed by the relator that the commissioners had no power to pass by-law 42, upon the ground that congress nowhere empowered the States to prevent the introduction of steam into the pilot service.
    “ It is not so much what congress has empowered the States to do, as the fact that congress has not legislated at all upon the subject, that gives the State, as part of the police regulation of its ports, the right to establish pilotage service. It is true that by the act of 1789, congress bas treated of the pilotage service, but this legislation was nothing but a notice to the States that, for the present at least, all questions of pilotage should be left to the States until congress should choose to legislate upon the subject itself. The same condition of things exists as to the quarantine establishments. As long as congress does not take the subject into its hands, the State can protect itself by suitable legislation. The State, therefore, has absolute control of the subject. They may maintain a compulsory pilotage service, or they may abolish it altogether. It has been frequently held that the States may compel incoming vessels to pay pilotage, and regulate the fees for pilotage. Whenever the States in the judgment of congress abuse the power which has been not confided to but permitted to remain with them, it can legislate upon the subject and take full control of all matters relating to it; and until congress does this, the power of the States is unlimited, except by its own Constitution and laws. It is urged that if congress did intend to intrust this enormous power to the State legislatures, there was not thereby conferred upon them any right to delegate it to a local irresponsible board. In the disposition of the question at bar, it is not at all necessary to discuss whether the act in question is a local one or not, or whether the legislature has delegated any legislative power to the defendants or not. These questions are interesting ones, and when the necessity arises they may perhaps be discussed with interest and profit, but such a digression would be out of place here. That legislatures have the power to appoint boards, who shall determine the fitness of persons •for a particular vocation, and the fitness of things for the uses to which they may be intended, cannot now be questioned. The admission to the ■ bar is regulated in this way. The qualifications of engineers to follow their calling is ascertained in this way. The right to the use of steam boilers is also similarly regulated, and I might instance numbers of like cases.
    “The legislature, then, had the right to refer to a board the determination of the qualifications of pilots, and they had also the right to refer to a board the determination of the suitability of the vessels used by pilots in the exercise of their vocation. These things have been expressly done by section 9 of the State act. It reads: ‘ The commissioners, or a majority of them shall, with all convenient speed, proceed to license, for such term as they may think proper, so many pilots as they may deem necessary for the port of New York; and such commissioners may specify in such licenses different degrees of qualifications appropriate to different parts or branches of duty, according to the competency of the applicants.’ This constitutes the board an examining board and a licensing board, giving them a discretion as to number. Then follows a clause excluding pilots holding license from any other State. The section then proceeds: ‘ And the said commissioners, or a majority of them, shall have power either to revoke and annul the license of any person so licensed by them to act as a pilot who shall not be attached to a boat approved by said board.’ This clause clearly gives the commissioners the power to determine the qualifications of boats for the duty as well as those of the men themselves. If the legislature could confide the one question to a board, they could also entrust the other. The cases are too numerous in which such power has been exercised, some few of which have been noted above, that it cannot now be questioned. The result of this provision of the statute is, that a pilot cannot introduce into the pilotage service a boat which' is not approved of by the board. It may be urged that it was not the custom of the commissioners to examine and approve of the boats admitted to the fleet. This is undoubtedly true, but the non-user of the power of approval did not repeal the provision of the statute or take away from the board a power expressly conferred upon it. They may not have deemed it necessary to inflict the penalty provided by the statute before; but when, in their judgment, the interests of the service committed to their care require it, they can use the power conferred upon them. The matter is left by the statute wholly in their discretion. No boat could, therefore, become a pilot boat without the consent of the commissioners, expressed or implied. There can be no implied consent made out in the case at bar, as the commissioners had in no way recognized the Hercules as a pilot boat. The permission given to the company of pilot boat No. 10 to replace that by another boat, was clearly not a waiver of the right of the commissioners to disapprove of the boat sought to be introduced. As to by-law No. 12, it is of no consequence in this case whether it be considered a by-law or not. It was a notice to the pilots that the board would not allow any steamboat to be introduced into the fleet; and, as we have seen, the board had the power to exact their approval as a condition precedent to the admission of any boat into the fleet, no by-law was necessary to enable them to execute the penalty prescribed by the law. The Hercules, never having been either approved of or recognized in any way by the commissioners, never was a pilot boat; • and boarding vessels by the relators from her was a breach of by-law No. 41, if any other pilot boat was in sight. The complaints in this case made to the commissioners allege a breach of this by-law, giving the full particulars. The board of commissioners had the right to try the question (there being no question raised as to their power to pass by-law No. 41, it is unnecessary for me to consider the proposition) as to whether or not the relator had been guilty of a violation of this by-law, and this court cannot take that office out of their hands. In discussing these questions, I have not adverted to section 12 of the law, not because I do not think that the power to pass by-law No. 42 is not thereby conferred, but because it seemed to me that there could be no question but that under section 10, the board has the power to exclude steam vessels from the fleet of pilot boats, and this seems to be the question raised by the proceeding. There must be judgment for the respondents, dismissing the writ.”

      Thomas Bracken, for the the appellant.
    Congress did not intend to authorize the State legislature to delegate the power conferred upon it to a local irresponsible board. (Thorne v. Creamer, 15 Barb., 112; Bradley v. Baxter, id., 122; Barto v. Hirnrod, 8 N. Y., 483; Healey v. Dudley, 5 Lans., 115 ; Clark v. City of Rochester, 28 N. Y., 605; Bank of Rome v. Village of Rome, 18 id., 38; Stari/n v. Town of Genoa, 23 id., 456; Coe v. Schultz, 47 Barb., 64.) The legislature cannot delegate legislation to the people. (Rice v. Foster, 4 Harr., 479; Geébirck v. State, 5 Iowa, 491; Santo v. State, 2 id., 165; State v. Beneke, 9 id., 203; State v. Copeland, 3 R. I., 33 ; People v. Collins, 3 Mich., 343.) Vide as to what is a local law. (Healey v. Dudley, 5 Lans., 115.) If the legislature had the power to delegate the right to legislate, or in other words to create a legislative body, no unlimited, arbitrary or absolute power would thereby be conferred upon the commissioners.
      (Commonwealth v. Si. Patrick's Society, 2 Binn., 441; The People ex rel. Thatcher v. New York Commercial Association, 18 Abb. Pr., 271; The People ex rel. Crap v. The Medical Society of Erie, 24 Barb., 570 ; Gosling v. Yeley, 12 Q. B., 347; The People ex rel. Schmidt v. S. F. F. Society, 24 How. Pr., 216; People ex rel. etc., v. N. Y. Cotton Exchange, 8 Hun, 216; Angelí on Corporations, §§ 268, 347, 349; 2 Kent’s Com., 297-9; Grant on Corporations, 263, 264.)

      William Allen Butler, for the respondent.
   Per Curiam :

We think this ease was correctly decided by the Special Term, and that the judgment should be affirmed substantially upon the opinion of Van Brunt, J.

We may add that we concur in the views expressed by Mr. Butler in the careful and judicious opinion furnished by him to the board prior to the commencement of the present proceedings.

Present — Davis, P. J., Brady and Barrett, JJ",

Judgment affirmed, with costs.


author: Beady, J.:

text:
    MARY ELLEN RANDALL, as Administratrix, and DANIEL H. GILMAN, as Administrator, etc., of ISRAEL RANDALL, deceased, Respondents, v. JOSHUA C. SANDERS, Appellant.

      Deed — when it will not he treated as a mortgage — possession of meant lots follows

    William Y. Brady and wife, by a deed dated December 5th, acknowledged December 8th and recorded December 13, 1837, conveyed to one Randolph, the plaintiffs’ intestate, certain vacant lots in the city of New York. Randolph, by an agreement dated December 6th and recorded October 9, 1838, for and in consideration of one dollar, agreed to give Brady the right of preemption of the said lands, and that, if Brady, his executors, administrators or assigns should, within three years, pay to him the consideration named in the deed, with interest thereon at seven per cent, and all taxes and assessments paid by him, he would reconvey the premises to Brady, his heirs or assigns, free and.clear from all incumbrances. On September 8, 1838, Brady assigned his interest in the contract to one Leonard, who was thereafter declared a bank-rapt, and upon a sale of his estate, by his assignee, his interest in the premises was on November 27, 1872, purchased by the defendant.
    In an action by Randolph to recover damages for a trespass upon the said lands committed by the defendant:

      Held, that the deed to Randolph was not to be treated as a mortgage but as an absolute conveyance, and that the title to the lots was thereby vested in him. That the lots being vacant and unoccupied, the possession followed the title, and that Randolph was entitled to maintain an action for trespass.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes by the justice before whom the action was tried.
    The action was brought to recover damages for a trespass committed by the defendant, upon certain vacant lots in the city of New York, which had been conveyed to the plaintiff’s inféstate by one William Y. Brady, in 1837. By an agreement bearing date one day after that of the deed, Randolph agreed to give to said Brady the right of pre-emption of the lands herein described upon the terms hereinafter mentioned, and did therein covenant as follows: “ I covenant and agree to and with said Brady as follows: That if he, his executors, administrators, heirs or assigns, shall and do at any time before the expiration of three years from the first day of May next, pay to me, my heirs, executors, administrators or assigns, a sum of money to be ascertained as follows and composed of these items, to wit: ” (The consideration named in the deed and entered therein, and all moneys paid for taxes or assessments.) “ Then in that case, I, my heirs, or assigns, shall and will without delay convey to said Brady, his heirs or assigns, by good and sufficient deed, and free of all incumbrances made or suffered by me, my heirs or assigns, except said two existing mortgages, all and singular,” the said premises.

      Townsend <& Malum, for the appellant.

      Gilmem Mcvrston, of New Hampshire, for the respondents.
   Beady, J.:

This action was brought' to recover damages for a tort committed in the lifetime of the deceased consisting of an unlawful entry and trespass on certain premises owned by tbe intestate, who was known as Israel Randolph.

Several exceptions to the' admission and rejection of evidence were taken upon the trial, but they were not argued on the appeal and were abandoned.

It appears from the evidence that a deed was executed by William Y. Brady and wife to Israel Randolph, dated December fifth, acknowledged December eighth, and recorded December twelfth, 1837, for the consideration of $6,876, covering the locus wi quo. It also appeared that on the sixth day of the same month Israel Randolph, in consideration of one dollar paid by Brady, the grantor, agreed to give Brady the right of pre-emption in the lands described in the deed mentioned, and by which agreement it was provided that if Brady or his executors, administrators or assigns should, at any time prior to the expiration of three years from the first of May then following, pay the sum of money to be ascertained as provided by the agreement, then that he would duly reconvey to said Brady, his heirs or assigns by a good and sufficient deed free of all incumbrances the locus in quo. It further appears that Brady assigned this contract to Willard Leonard, by assignment bearing date September 8,1838, and recorded October ninth of the same year. It further appears that Willard Leonard was afterwards declared a bankrupt, and that upon a sale of the bankrupt’s estate the assignee in bankruptcy conveyed to the defendant all the title and interest which the bankrupt had in the lands described in the said contract of pre-emption. The premises, the locus i/n quo, were vacant lots and had not been reduced to actual possession by Mr. Randolph during his lifetime.

The chief question in the case, notwithstanding that a great many others have been presented as appurtenant to it, is whether the deed of Brady to Randolph was a mortgage or in the nature of a mortgage given for the security of a debt.

The deed upon its face is absolute, and we fail to discover in the proof any evidence showing that it was designed to be a mortgage. The pre-emption instrument is not at all inconsistent with the vesting of title. It secured to the grantor the right to repossess himself of the property upon certain conditions, all of which were entirely consistent with the vesting of the title in the grantee.

The case is somewhat like the case of Macaulay v. Porter (71 N. Y., 173), and therefore unlike the case of Horn v. Keteltas (46 id., 605), in which it was held that the deed was delivered to and accepted by the defendant as security for the repayment of a loan which was made. The case of Baker v. Thrasher (4 Denio, 493), is one more like the case at bar. There it appeared that an absolute deed was accompanied by a covenant reciting that the deed had been given for the purpose of paying a debt to another person, and providing that, if the grantee should find a purchaser within a year the grantee would convey to such purchaser for the amount of the debt and interest, but if the sale was not made within a year the grantee would pay for the land such additional sum as should be ascertained as therein provided; it was held that this did not make the deed a mortgage. There was no condition under which the title could ever be revested in the grantor, the title being intended to remain in the grantee’or the person to whom he should convey in pursuance of the covenant.

It was not questioned in the case at bar that the evidence did not establish the fact that the deed executed by Brady was intended as a mortgage. The pre-emption paper is in no way inconsistent with any such result. It may be inferred from the testimony that Brady, at the time of its execution, was embarrassed, which fact, doubtless, led to the sale of the property and he found a purchaser who was willing to reconvey the title and give him the benefit and advantage of any advance that might be made in the value of the property during the period for which the right to purchase extended.

Entertaining these views of the two instruments (and it must not be overlooked that the deed was executed before the pre-emption paper, and recorded before the latter was recorded) it follows that the title having vested absolutely in Randolph he was entitled to the possession of the land; and the title, the land being vacant, drew the possession after it upon well settled principles of law.

The defendant’s purchase upon the sale of the bankrupt’s effects gave him no other right than that which the bankrupt himself possessed, and he could not, therefore, enter upon the land and reclaim the title without having complied with the terms of the pre-emption agreement.

Randolph having the estate by virtue of the deed from Brady to Mm, and the premises being vacant, could maintain an action of trespass. Possession of land is a prerequisite to the maintenance of such an action, but where lands are unoccupied possession follows the title. (Rich v. Baker, 3 Denio, 79; Cowenhoven v. Brooklyn, 38 Barb., 9; Wood v. Lafayette, 68 N. Y., 181.)

We think these views dispose of the case and that the judgment should be affirmed.

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

Judgment affirmed.


text:
    In the Matter of the Election of Trustees of THE NEW YORK EXPRESS COMPANY.

      Chapter 254 of 1880 — operates retrospectively.

    Chapter 254 of 1880 exempting corporations organized under the general manufacturing act from the operation of sections 5, 6 and 8 of 1 Revised Statutes, 603, providing for the determination, on a summary application, of the claims of persons to have been elected officers of a corporation, operates retrospect ively, and prevents the further prosecution of proceedings theretofore commenced and then pending under and in pursuance of the said sections of the Revised Statutes.
    Appeal from an order made at Special Term dismissing these proceedings.
    This application was made under 1 Revised Statutes, 603, section 5, for an order declaring that Edward Kearney, John H. Mooney and Joseph J. O’Donohue were not elected trustees at the election held March 15, 1880, and that Erastus Brooks, James Wilton Brooks and Samuel Marsh were so elected at that time.
    The application was made to the court for this order on March 18th, and on March 29th the papers on both sides were read to the court, when Mr. Justice Daniels, of his own motion, made an order referring the issues herein to Rufus F. Andrews, to take proofs and report.
    While this proceeding and reference were pending, and on May 11, 1880, the legislature passed an act (Laws 1880, chap. 254) providing that corporations organized under tbe general manufacturing act (of which this is one) should be “ exempted” from sections 5, 6 and 8 of that part of the Revised Statutes already referred to.
    On July fifteenth, the respondents moved at a Special Term held by Mr. Justice DoNohue, to dismiss the proceedings and vacate all orders entered herein; and on August tenth, Mr. Justice DoNohue granted such an order, from which the applicants now appeal to the General Term.

      Thos. G. Shearman, for the appellants.

      John U. Strahan and Albert Cardoso, for the respondents.
   Beady, J.:

The New York Express Company is a corporation formed under the act passed in February, 1848, and the acts amendatory thereof and supplemental thereto. An election for trustees of this company was held on the 15th of March, 1880, and the appellants, Messrs. James Wilton Brooks, Samuel- Marsh and Erastus Brooks, claimed that they had been duly elected and should have been so declared instead of three others; and they presented an application to this court under the provisions of the Revised Statutes (see 1 R. S., 603, § 5), which provides for a summary application, and imposes the duty of establishing the election complained of, or ordering a new election, and of making such order and giving such relief in the premises as right and justice may require. While the proceedings, which were sent to a referee to take proof, were pending, the legislature passed an act (chap. 254, Laws 1880) which exempted corporations organized under the Laws of 1848 from the provisions of the statute referred to, and it was declared that the act should take effect immediately.

The question presented, therefore, is whether the statute mentioned has a retroactive effect, or is to be construed as simply affecting proceedings thereafter commenced. The act of 1880 related to a statutory proceeding summary in its character, and did not destroy any right, on the part of the appellants, to institute a proceeding for the purpose of determining whether or not they were legally elected trustees. It affected only their right to employ the summary proceedings wbicb bave been already mentioned. It only related to tbe form of the proceeding. It did not deprive the appellants of their other remedy.

The right to a particular remedy is not a vested one. (Butler v. Palmer, 1 Hill, 330; see People v. Roper, 35 N. Y., 638 ; Cooleys’ Constitutional Limitations, 361, et seq.) The class of cases which the appellant’s counsel has cited are illustrative of the proposition that the legislature cannot destroy a vested right of action, a proposition which it would be unseemly to deny. But the principle does not apply where the act complained of merely alters or modifies the remedy. In this case, for example, when the act of the legislature was passed, relating as it did to a statutory jurisdiction, and taking effect immediately, there was no power left in the court to make the order which the statute contemplates, because there were no saving clauses in the exempting act. But this did not prevent the appellants from resorting to another remedy. The legislature provided a summary mode of relief and repealed the law by which it was granted. There was no power remaining in the court to do anything under the original statute in this proceeding, therefore, because as to this proceeding the original statute was absolutely destroyed.

For these reasons it is thought that the order appealed from must be affirmed.

Barrett, J., concurred.

Present — Brady and Barrett, JJ.

Order affirmed.