text:
    Andrew G. Washbon et al., Resp’ts, v. Nancy Cope, et al., App’lts.

      {Court of Appeals,

      Mled January 15, 1895.)

    1. Attorney and client—Unauthorized appearance.
    Unless under some peculiar and extraordinary circumstances, the objection that a party was not served and an appearance by an attorney in a court of record for such party was unauthorized, and that, for this reason, the judgment was without jurisdiction, cannot be taken in a collateral proceeding or action, but the party is confined to a motion in the original action in order to obtain relief.
    2. Surrogate—Powers.
    The surrogate has, as a general rule, no jurisdiction to construe the provisions of a will excepting so far as it may be necessary for him to do so, in order that he may perform some other duty which has been imposed upon him by law.
    3. Will—Construction.
    The courts refuse to cut down an estate already granted in fee or absolutely when the supposed terms of limitation are to be found in some subsequent portion of the will, and are not in themselves clear, unmistakable and certain, so that there can be no doubt of the meaning and intention of the testator.
    4. Same.'
    Where the devise or bequest over to third persons is not dependent upon the event of death simply, but upon death without issue or without children, the death referred to is death in the lifetime of the testator, unless there is language in other portions of the will tending to show a contrary intent.
    5. Same.
    But, in such case', the language must be such as at least to give fair, clear and reasonable ground for saying that its proper effect is to change the rule in question.

      Appeals from order of the general term of the supreme court in ths fourth judicial department, which reversed a judgment in favor of defendants, entered upon an order dismissing the complaint on trial at special term and granted a new trial.
    This action was brought for the purpose of compelling the defendant Nancy Cope to give security for the ultimate safety and forthcoming of certain moneys amounting to about $14,000, left to her by the fourth and seventh clauses of the will of'her father, as the plaintiffs allege for her life only, in case she should die with-rout children, and in that event the moneys were to go to the sons of the testator, share and share alike. The action was tried without a jury and the trial court found the following among other facts: The plaintiffs are grandchildren of the testator, Andrew Gr. Washbon, and children of John G. Washbon, the son of the testator. The testator died March 1, 1867, in his 79th year. He left a will executed by him on the 31st of January, 1865. At the time of his death, he left him surviving his sons, John G., Henry R. and Robert Washbon, and his daughter, Nancy Cope. The following is the will of the testator:
    “ In the name of God, amen.
    “I, Andrew Goold Washbon, of the town of Morris, county of Otsego, and state of New'York, in the seventy-seventh year of my life, and being of sound mind and memory, do make, publish and declare this my last will and testament in manner following, that is to say, after all my lawful debts are paid:
    “ Firstly. I give and bequeath to my beloved wife, Arabella Washbon, the sum of three (3) hundred dollars annuity or clear yearly rent chargeable to my estate, to be paid her by my executors annually, during .her natural life, the same to be received by her in lieu of dower, and I further direct that my said wife, Arabella, shall have the privilege of home and residence during her life in the house now occupied by me, free of charge.
    “ Secondly. I give and bequeath to my executors hereinafter named, the farm in the town of Morris aforesaid, containing about two hundred ^md fifty (250) acres, more or less, upon which my son John G. Washbon now resides, and which is now occupied and worked by Levi Reddington, together with the farming utensils and live stock thereon, belonging to me at the time of my decease, and also the sum of four thousand (4,000) dollars, and also the equal one-fourth part of the residue of my estate as hereinafter mentioned, and also any other’s share or interest which may be hereinafter devised or given to them as trustees in trust to receive the income, rents, interest and profits thereof, and to apply the same to the use of my said son John G. Washbon during his life, and at his decease to grant, convey, transfer and pay over the same to the descendants of my said son John G. Washbon who shall be living at his decease, to whom I devise and bequeath the same so that the- desendants of each deceased child, if any, of my said son John G. Washbon shall take together and per stirpes, one share as said deceased child, their parents would have taken if living, and for the benefit •of said descendants of said son John'G. Washbon.
    “ Item. I desire and request my executors and trustees to keep my said farm in good condition, repair and supply as they may be at the time of my decease.

      Thirdly. I give and devise to my youngest son, Henry E. Washbon, the farm in the town of Morris aforesaid, on which I now live, containing one hundred and eighty-eight (188) acres, more or less, with all the farming utensils and live stock thereon belonging to me at the time of my decease.
    “ Fourthly. I give and bequeath to my daughter, Nancy Cope, wife of John Cope, Jr., the sum of ten thousand (10,000) dollars.
    “ Fifthly. I give and bequeath to my son-in-law, John Cope, Jr., the sum of two thousand (2,000) dollars.
    “ Sixthly. I give and bequeath to my second son, Eobert Washbon, the sum of twelve thousand (12,000) dollars.
    “ Seventhly'. I give and bequeath and devise all rest, residue and remainder of my property, real and personal, to my three children, Eobert Washbon, Nancy Cope, wife of John Cope, Jr., and Henry E. Washbon, to be divided between them.
    “ Fighthly. I furthermore desire and direct that in the event of my daughter, Nancy Cope, wife of John Cope, Jr., shall die without children, the portion herein given to her shall be given to my sons, John GK, Eobert and Henry E, or their heirs, share and share alike.
    “ Ninthly. I furthermore desire and direct that my sister, Manda Fairchild, shall have privilege of home and residence on the farm which I have given and devised for the benefit of my son John Gr. Washbon, the same as she now occupies, with fuel and the keep of one cow, during her natural life, or so long as she wishes to occupy the same, and chargeable to the rents and profits of said farm.
    “ Tenthly. I furthermore direct and authorize my executors hereinafter named to sell all real estate which I may have except such as I have otherwise given and devised in this my last will and testament for the benefit of my heirs, at such times as said executors shall deem best.
    “ Fleveníhly. I do hereby nominate and appoint my sons Epbert Washbon and Henry E. Washbon, and my son-in-law, John Cope, Jr., to be the executors of this my last will and testament, hereby revoking all former wills by me made. * * *
    “ (Signed) A. Gr. Washbon.”
    After the death of the testator his will was duly admitted to-probate, and the executors took upon themselves the discharge of their trust. They soon paid to Nancy Cope the amount of $10,-000 spoken of in the sixth clause of his will, and also the sum of $3,500 in addition as her share of the residue of the estate provided for in the seventh clause of the will. The money was paid to her unqualifiedly and she received it as the absolute owner,, and she has claimed to be the owner from that time under and by virtue of the will above mentioned. After more than twenty years this action is commenced on the ground that as Mrs. Cope is now about 67 years of age, and has been married for more than thirty years and never has had any children, that she ought to be compelled to give security for the forthcoming of the above-mentioned sums upon her death. Mrs. Cope, on the contrary, claims that under the terms of her father’s will, as she survived her father she became entitled to the payment of the moneys mentioned therein unconditionally as her absolute property, and that in fact and in law she is the owner thereof absolutely.
    Many years after the death of the testator proceedings were taken by the plaintiffs herein for the purpose of compelling an accounting by the executors of their grandfather’s estate. The executors were duly cited and appeared in the surrogate’s court for the purpose of rendering their accounts, and the proceeding was subsequently turned into a voluntary one on the part of the executors for their final accounting. A decree was entered in that proceeding, and it is claimed that Mrs. Cope, although never served with a citation, was a, party to and is bound by that decree, because of her appearance in that proceeding by an attorney of the supreme court. That decree contained a provision in which the surrogate making it stated that “ the contingency of Nancy Cope’s dying without children, in the 8th clause of the will, relates to her death without children at any time, after as well as before the death of the testator. That it was the intention of the testator, as gathered from his will, that the bequests to Nancy Cope were to be a life use merely, in case she should die at any time without children.”
    Further facts are stated in the opinion.

      Burr Mattice, for app’lt; Israel T. Deyo, for resp’ts.

       Reversing, 50 St. Rep. 821.

   Peckham, J.

The trial court in this case held that, by the true construction of the will of Mr. Washbon, the defendant Nancy Cope having survived her father, took an absolute estate in the moneys beqeathed to her by his will., The general term, upon appeal, has reversed that finding, and has construed the will as giving but.a life estate to Mrs. Cope if she should die without children. The judgment of the special term was, therefore, reversed and a new trial granted. The defendant Mrs. Cope has appealed here. She maintains now before us that the interpretation placed by the special term upon the will of her father in this action is the correct one. The plaintiffs maintain "the contrary, and as a bar to the defendant Mrs. Cope entering upon an inquiry as to what is the true construction of the will of her father, they produce the decree of the surrogate upon the accounting of the executors of her father’s will, in which the surrogate construed the will as giving to Mrs. Cope only a life estate in case she should die without children. It becomes necessary, therefore, before we enter upon a discussion as to what is the true meaning of the will of the testator, to determine the correctness of the plaintiffs’ claim in regard to the effect of the surrogate’s decree. Mrs. Cope denies that any such effect is to be given to that decree, because of the fact that she was never served with any citation in that proceeding, and that the appearance of an attorney for her therein was wholly unauthorized and did not permit of any adjudication being made in that proceeding which would be binding upon her, and also because the surrogate had no jurisdiction to construe the will, and his construction of it was, therefore, wholly without any binding force.

We think the objection grounded upon the unauthorized appearance of her attorney and the non-service of any process upon her cannot prevail in this action. It has been settled by an unbroken line of decisions in this state, running many years back, that, unless under some peculiar and extraordinary circumstances, not existing in this case, the objection that a party was not served and an appearance by an attorney in a court of record for such party was unauthorized, and, hence, that the judgment was without jurisdiction, cannot be taken in a collateral proceeding or action, and that the party is confined to a motion in the original action in order to obtain relief. This was decided in the case of Denton v. Noyes, 6 Johns. 297, and has been followed by many cases since that time, the last of which in this court is that of Vilas v. Plattsburgh & M. R. R. Co., 123 N. Y. 440; 34 St. Rep. 67, where the whole doctrine was reviewed and affirmed as above stated. The case of Ferguson Crawford, 70 N. Y. 256, also contains a discussion of the general doctrine in the opinion by RapALLO, J. In this case we are, therefore, bound to regard the decree of the surrogate as of the same effect, so far as the rights of Mrs. Cope are concerned, as if she had been duly cited or had authorized her attorney to appear for her in that proceeding.

As a general rule, the surrogate has no jurisdiction to construe the provisions of a will excepting so far as it may be necessary for him to do so in order that he may properly perform some other duty which has been imposed upon him by law. There is no general and inherent power vested in him or in his court to construe devises or bequests as a distinct and independent branch of his or its jurisdiction. Even a court of equity vested with general jurisdiction over equitable subjects has no such inherent power as that, and its only power to construe the provisions of a will is based upon, and is incident to, its jurisdiction over trusts. Mellin v. Mellin, 139 N. Y. 210; 54 St. Rep. 670, and cases cited in the opinion of Andrews, Oh. J. The statute itself provides for the effect of a judicial settlement of the accounts of the executors. See §§ 2742 and 2743, Code Civ. Pro.

The facts in this case do not bring the determination of the surrogate upon the question of the construction of this will regarding its provisions for Mrs. Cope within either of those sections, and such determination is not conclusive or binding upon Mrs. Cope. Sometimes it may be necessary for the surrogate to construe the provisions of a will in order that upon the final accounting of the executors thereof he may decree distribution to those who, by the provisions of the will, are entitled to any portion of the proceeds remaining undistributed, or where distribution by the executors has already been made, may, upon their accounting, determine whether they have erroneously and improperly made distribution, of some of the estate, and if so the surrogate may hold them liable' in their accounts. But generally it is for the purpose of determining the correctness of the accounts of the executors or of decreeing proper distribution of the estate that this jurisdiction to construe the terms of a will becomes necessary, and may be exercised for the purpose of carrying out the jurisdiction actually conferred upon the surrogate. In this case no such contingency occured. The moneys had been paid by the executors to Mrs. Cope, and the surrogate, by his decree, did not decide that such payments were legal or illegal. He decided nothing in regard to it, and he made no decree for the future distribution of any portion of the moneys which had been paid to Mrs. Cope by the executors. There was a bare assertion that Mrs. Cope took but a life estate in case she died without children, and there was no decree made for the distribution of such funds upon the death of Mrs. Cope, nor any decision in regard to who the parties were who might, upon her death, become entitled to those moneys or any portion of them. Thus the statement of the surrogate was nothing more than his opinion as to the proper construction of the will of the testator, upon which he based no action and made no decree. He did not exercise the jurisdiction vested in him upon the accounting of the executors by providing for the distribution of these moneys, or by deciding upon the legality of their past payments, .and in this case it was only for that purpose that he might claim jurisdiction to construe the provisions of the will. As that decree is not conclusive upon Mrs. Cope so far as the construction of the will of her father is concerned, we are brought to an examination of the will in order to see what its correct construction may be.

We find in the first place by the 4th clause an absolute and unconditional bequest of $10,000 to his daughter, Nancy Cope, wife of John Cope, Jr., and by the 7th clause the testator makes residuary legatees and devisees of his three children, Bobert,Henry and Nancy, the amount to be divided between them. We then find the 8th clause, that in the event of his daughter dying without children the portion given in the will to her was to be given to his sons or their heirs, share and share alike, and the sole question in the case is what is meant by the expression “in the event my daughter, Nancy Cope, wife of John Cope, Jr., shall die without children the portion,” etc. Death at what timé ? Does it mean her death before the death of the testator, or does it mean her death at any time either before or after his death, provided she shall die without children ? We are confronted in the first place by the well-settled rule that courts refuse to cut down an estate already granted in fee or absolutely when the supposed terms of limitation are to be found in some subsequent portion of the will, and are not in themselves clear, unmistakable and certain so that there can be no doubt of the meaning and intention of the testator. See Byrnes v. Stilwell, 103 N. Y. 453; 4 St. Rep. 241; Roseboom v. Roseboom, 81 N. Y. 356.

The expression in the eighth clause, giving the most weight to it in favor of the plaintiffs, can only be said to be at least doubtful as to what period of time the death of the defendant Mrs. Cope is to be referred to, and hence if the rule above mentioned is ever to be enforced it would seem as if this were one of the cases described by the courts as being proper for its application.

There is another rule which is also well settled, that where the devise or bequest over to third persons is not dependent upon the event of death simply, but upon death without issue or without children, the death referred to is death in the lifetime of the testator. It is true that in some cases courts have stated that they would lay hold of slight circumstances to vary this construction and give effect to the language according to its natural import as referring to a death, under the circumstances mentioned, happening either before or after the death of the testator. But those circumstances must be such that a court can reasonably say there is good and fair ground upon which to base an alteration of the rule outside of and beyond the language which courts have heretofore held compelled them to enforce the rule as stated. When the language of a devise or bequest is such that the courts, without looking at any of the other provisions of a will, would say that such language meant, within the well-settled decisions, that the death spoken of was death before that of the testator, then the language in other portions of the will which is to alter that rule must be such as at least to give fair, clear and reasonable ground for saying that its proper effect is to change the rule in question.

In Quackenboss v. Kingsland, 102 N. Y. 128, the language of the will was very much like that used in the eighth clause of this-will, and it was held that the death referred to was the death of the beneficiary during the lifetime of the testator, and that as the beneficiary outlived the testator he took an absolute estate. In that case as in this, it was claimed that other language in the will showed an intent contrary to that which was attributed to the testator by the rule actually adopted, but a careful examination of the language failed to convince this court that there was enough in it to prevent the application of the general rule, and the case was decided accordingly. In Vanderzee v. Slingerland, 103 N. Y. 47, the existence of the rule was again asserted, but in that case it was held there was sufficient in the language of the will to show that by the death of the beneficiary was meant his death at any time either before or after that of the téstator. The provisions of that will, upon which the learned judge based his argument and which were sustained by the court, were quite strong and convincing of a different intent on the part of the testator from that which ■ would usually be given to the words of bequest. Cornelius, the son of the testator, was the original beneficiary, but he was charged with the payment of certain legacies within two years after the death of the testator, and the language of the gift over was “ in case my son Cornelius should die before the provisions of this will become an act, the devisees last named (the grandchildren) shall perform and fulfill all the conditions required of my son Cornelius to the legatees named in this my will.” It was seen from the language of the will that the testator had in mind two contingencies: First, that his son Cornelius might die before him without issue, or die after him, and even after the two years and before he had paid the legacies, and it was held that the burden of paying the legacies was imposed upon the ulterior devisee • in case ol the death of Cornelius either before the testator or after his death, in case the direction for their payment should then he unexecuted. And upon that assumption of the true construction of the clause it was held to be clear that the words “death without issue,” referred to a death at any time because it was inconceivable that the testator could have intended that the grandchildren should pay the legacies except,in the event of their taking under the devise. I think the learned judge made it entirely clear that that was a case where it was proper and indeed necessary 10 discard the general rule for the purpose of following out the clear intention of the testator evidenced by language pointing unmistakably to a meaning such as was given to it by the decision of this court.

In Mead v. Maben, 131 N. Y. 255; 43 St. Rep. 167, the general rule was again recognized and also its well-settled exception, that where the context of the will shows a contrary intent it should prevail, and the exception was applied to the will in that case.

There is nothing in the decision of the last-cited case which aids in the construction of the will now before us.

In Stokes v. Weston, 142 N. Y. 433; 59 St. Rep. 811, the general rule is again asserted and carried out in regard to a will, the provisions of which were at least as doubtful as the one under consideration. See, also, Matter of Tienken, 131 N. Y. 391, 403; 43 St. Rep. 184.

Enough cases have been cited to show what indeed there is no contradiction in regard to, that the exceptions to the rule must be quite clearly apparent from the language otherwise used in the will, and that unless such language is to be found which shall render the meaning of the testator q.uite clear the exception to the rule is not sustained and the rule itself must prevail. Upon looking carefully through the other provisions of this will we are unable to find any such clear indication of the meaning of the testator as would be requisite for us to find in order to overturn this general rule and set up the exception in its place. Speaking generally, the scheme of the will would seem to have been that the children of the testator should share equally in his estate. The $12,000 of personalty which is given to one of his children is made up in the case of Mrs. Cope by $10,000 to her and $2,000 to her husband. There is no proof as to the actual value of the two farms given respectively to his other two sons, but we certainly should not assume that they were greater than the portion given to his other children, in the absence of any evidence on that subject. The argument that the testator intended to keep the property which he gave to his daughter within the limits of his family and his heirs, and that consequently the death he had in view was the death of Mrs. Cope at any time without children, is one which can be adduced in most cases where language of this kind has been employed, and yet that fact has never yet been held to he sufficient to change the meaning which the law has placed upon language of this kind when used in a will. Upon the whole, we think that under the terms of this will Mrs. Cope took an absolute property in the bequests to her and that the special term was right in dismissing the plaintiffs’ complaint.

The order of the general term should, therefore, be reversed and that of the special term affirmed, with costs to the defendant Mrs. Cope in all courts. The appeal of the other defendants is dismissed upon the motion to dismiss made by the counsel for the plaintiffs herein, with costs.

All concur, except Andrews, Oh. J., not voting, and Haight, J., not sitting.

Ordered accordingly.


source: Caselaw Access Project

author: Andrews, Oh. J.

license: Public Domain

text:
    Chas. S. Higgins Company, App’lt, v. Higgins Soap Company, Resp’t.

      (Court of Appeals,

      Filed January 22, 1895.)

    1. Tradename—What may be appropriated.
    An exclusive right may be acquired in the name in which a business has been carried on, whether the name of a partnership or of an individual, and it will be protected against infringement by another who assumes it for the purp jses of deception or, it seems, even when innocently used without right to the detriment of another, and this right, which is in the nature of a trade-mark, may be sold or assigned.
    2. Same.
    The same rule applies to corporate names as to the names of firms or individuals.
    3. Same—Injunction.
    An injunction lies to restrain the simulation and use by one corporation of the name of a prior corporation, which tends to create confusion and to enable the latter corporation to obtain, by reason of similarity of names, the business of the prior one.
    4. Same.
    The sole test of liability is whether the acts done, either in organizing the later corporation or in the prosecution of its business subsequently, invaded any right of the prior corporation or exceeded the boundaries of fail-competition.
    5. Same.
    The later corporation derives no additional immunity from the fact that the individual name, used in its corporate name, was that of one or more of its corporators, or that such individual, or any one of that name, might engage in the same business under the family name, or that he and the other corporators of the same name had consented to its use.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at special term.

      H. Arlington, for app’lt; Jesse Johnson, for resp’t.

       Reversing. 54 St. Rep. 89.

   Andrews, Oh. J.

The plaintiff seeks in this action to restrain the use by the' defendant in this state of its corporate name, “ Higgins Soap Company,” in the business of manufacturing and selling soap, on the ground that such use is an unlawful invasion of the rights of the “ Chas. S. Higgins Company,” the plaintiff corporation. The corporate names of the respective corporations are not identical, but it is claimed in behalf of the plaintiff that there is a similarity between them which, in connection with ether facts, is liable to and lias produced confusion and will enable the defendant to appropriate the trade of the plaintiff. The facts found show that in 1890, prior to the organization of the corporation defendant, under the laws of New Jersey, which took place in 1892, the plaintiff, a domestic corporation, organized by Charles S. Higgins and others, purchased from Charles S. Higgins and his partner, for the sum of $810,000 in stock and bonds, the soap business originally established in Brooklyn by the father of Charles S. Higgins in 1846, to which business Charles S. Higgins succeeded on his father’s death in 1860, together with the good will, labels, trade marks and other property employed in the business. The business was very valuable, and the plaintiff and its predecessor expended, subsequent to 1879, in advertising, the sum of $800,000, and the product was extensively sold in New York and other states and was well known to the trade as “Higgins Soap,” and the plaintiff corporation was sometimes known as the “Higgins Soap Company.” The plaintiff and its predecessors manufactured a great variety of soaps, which were put up under different names, the leading article being known as “ Chas. S. Higgins German Laundry Soap,” but as we infer from the findings, all the soap so manufactured passed under the general name of “ Higgins Soap.” On the organization of the plaintiff corporation and the purchase of the business, it continued to carry it on in Brooklyn, where it had been originally established, and where it has ever since been carried on. Charles S. Higgins was a director of the plaintiff and its first president, and so continued for a year after its incorporation, when he was displaced from his position as president and ceased to be a director of the company. The ground of his discharge does not appear. Soon afterwards, in the summer of 1892, Charles S. Higgins, with his wife, his son and two other persons, organized the defendant corporation under the name of the “ Higgins Soap Company,” to carry on the soap business, and commenced the manufacture of soap, having its factory, principal office and place of business outside of New Jersey, in the city of Brooklyn. Charles S. Higgins became the president of the defendant corporation, and among other products it manufactured and put up a soap in bars, on the wrappers of which appear the words “ Higgins Soap Company, Original Laundry Soap, Charles S. Higgins, Prest,” and the bars were impressed with substantially the same words.

It was shown on the trial that letters intended for the plaintiff, containing orders for goods, or relating tb other business matters, had been'sent addressed to the “Higgins Soap Company,” “ Chas. S. Higgins Soap Co.,” and “ Chas. Higgins Co.,” but in general the plaintiff’s place of business was added to the address and they were received by the plaintiff. There were produced twenty-eight letters and envelopes of this kind, written within four months after the organization of the defendant and the commencement of this action, and it was stated that these did not comprise all the letters of this discription.

The main ground upon which the plaintiff has been defeated ■in the courts below is that Charles S. Higgins or the members of his family, either separately or jointly, had the right to establish the soap business and to use the name of Higgins in conducting it, and to designate the product as “ Higgins Soap,” and that no right of the plaintiff was invaded by giving to the corporation formed by them the name of “Higgins Soap Company."

The case of Meneely v. Meneely, 62 N. Y. 427, following other cases, is an authority upon the proposition that any person may use in his business his family name, provided he used it honestly and without artifice or deception, although the business he carries on is the same as the business of another person of the same name previously established, which has become known under that name to the public, and although it may appear that the repetition of that name in connection with the new business of the same kind, may produce confusion and subject the other party to pecuniary injury. The right of a person to use his family name in his business is regarded as a natural right of which he cannot be deprived, by reason simply of priority of use by another of the same name. In the bill of sale from Charles S. Higgins to the plaintiff the former consented that so long as he should be allowed a salary of fifteen thousand dollars per year for his services, he would give to the company the full benefit of his receipts, processes, etc., and that “ so long as he may be employed at the salary aforesaid, he, said Higgins, would refrain from making or selling soap in the city of Brooklyn except for said company,” thereby, by implication, reserving the right to engage in the business if the plaintiff should terminate his employment. But the question as to the right of the defendant to assume the name of the “ Higgins Soap Company,” or to do business in that name, is not affected by any contract entered into between Charles S. Higgins and the plaintiff. The defendant is a distinct person in the law from Charles S. Higgins, one of its corporators and officers. It had entered into no contract with the plaintiff, nor does it derive any of its rights from Charles S. Higgins. It stands in respect to the question involved in this litigation in the same situation as if Charles S. Higgins had never been a corporator or stockholder. It cannot appropriate the name, or the trade marks, or the business of the plaintiff by any simulation or deceit, because the law prohibits such appropriation by any person, natural or artificial; but the fact that Charles S. Higgins was active in organizing the defendant, or that he may have been actuated in doing so by feelings hostile to the plaintiff or by a desire to injure its business, is, as we conceive, irrelevant to the case. The sole test of liability is whether the acts done, either in organizing the defendant or in the prosecution of its business subsequently, invaded any right of the prior corporation or exceeded the boundaries of fair competition. On the other hand we think it is equally clear that the defendant derives no additional immunity from the fact that the name of “ Higgins,” in its corporate name, was that of one or more of its corporators, or that Charles S. Higgins, or any one of that name, might engage in the soap business under the family name, or that Charles S. Higgins and the other corporators of the same name had consented to its use. The right of a man to use his own name in his own business the law protects, even when such use is injurious to another who has established a prior business of the same kind and gained a reputation which goes with the name. But in such cases the courts require that the name shall be honestly used, and they permit no artifice or deceit, designed or calculated to mislead the public and palm off the business as that of the person who first established it and gave it its reputation. Croft v. Day, 7 Beav. 84; Halloway v. Halloway, 13 id. 209; Cement Co. v. Le Page, 147 Mass. 206. It is well settled that an exclusive right may be acquired in the name in which a business has been carried on, whether the name of a partnership or of an individual, and it will be protected against infringement by another who assumes it for the purposes of deception, or even when innocently used without right to the detriment of another, and this right, which is in the nature, of a right to a trade mark, may be sold or assigned. Levy v. Walker, 10 Ch. Div. 436; Hoxie v. Chaney, 143 Mass. 592; Bassett v. Percival, 5 Allen, 345; Cement Co. v. Le Page, supra; Millington v. Fox, 3 Myl. & Cr. 338. In respect to corporate names the same rule applies as to the names" of firms or individuals, and an injunction lies to restrain the simulation and use by one corporation of the name of a prior corporation which tends to create confusion and to enable the later corporation to obtain, by reason of the similarity of names, the business of the prior one. The courts interfere in these cases, not on the ground that the state may affix such corporate names as it may elect to the entities it creates, but to prevent fraud, actual or constructive. The names of corporations organized under general laws, and in most other cases, are chosen by the promoters, and it would be an easy way to escape from the obligations which are enforced as between individuals, if a corporation were granted immunity by reason of their corporate character. The principle upon which courts proceed in restraining the simulatipn of names in the nature of trade marks and have come to designate the business of a particular person or company, is stated in Lee v. Haley, L. R (5 Ch. App.) 155, an action’ to restrain the use by the defendant of the name of The Guinea Coal Co., in his business. “ I quite agree (said Gifford, L. J.), that they (plaintiffs) have no property in the name (Guinea Coal’Co.), but the principle upon which the cases on the subject proceed is, not that there is property in the word, but that it is a fraud on a person who has established a trade and carries it on under á given name, that some other person should assume the same name, or the same name with a slight alteration in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name.” The cases are not infrequent in which the use of corporate names has been restrained on the principle of'the trade mark cases. Holmes, Booth & Haydens Mfg. Co. v. Holmes, Booth & Atwood Mfg. Co., 37 Conn. 278; Massam v. Thorley Cattle Food Co., L. R. (14 Ch. Div.) 748; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94; Newby v. Oregon Cen tral Rway Co., 1 Deady, 609; Rogers Mfg. Co. v. Rogers & Spurr Mfg. Co., 11 Fed. Rep. 495; Roman Cement Co. v. The Le Page Co., 51 id. 942.

Whether the court will interfere in a particular case must depend upon circumstances; the identity or similarity of the names; the identity of the business of the respective corporations ; how far the name is a true description of the kind and quality of the articles manufactured or'the business carried on; the extent of the confusion which may be created or apprehended, and other circumstances which might justly influence the judgment of the-judge in granting or withholding the remedy. Whether upon equitable principles the remedy should have been awarded in this. case upon the facts proved and found is the question in this case. If the right of the plaintiff to relief depended exclusively upon the comparison of the corporate names of the parties, and the inferences to be drawn from such comparison alone and without. reference to any extrinsic facts, it might well be doubted whether the names are so similar that the court could find that confusion and injury would be likely to arise. But the case does not rest-alone upon the -inferences from such comparison. It would - naturally be inferred from the names that both parties were corporations. The name of “ Higgins ’’ appears in each. The name of the plaintiff does not itself indicate the business of the plaintiff corporation, while the name of the defendant describes its business. But while the plaintiff’s name does not describe its business, its product has come to be known to the trade as “ Higgins-Soap,” and to the public the name of the product identified the-plaintiff as the manufacturer of this product, and the company came to be known and called, to some extent, the Higgins Soap. Company.” The use of the name “ Higgins ” in connection with the business was valuable because of its use for a great number of years by the father of Charles S. Higgins and subsequently by the-son, under which a large business lmd been built up, and by reason of the large sums which had been expended in advertising the-product. -The name of the plaintiff in connection with these facts-indicated to dealers in soap that the article known as “ Higgins Soap ” was manufactured by the plaintiff. The manufacture had been established for fifty years, and carried on in the same place. Among the labels which were transferred to the plaintiff was one-containing the words “Higgins Soap,” and the word “ Higgins” was placed upon many of the labels. It cannot be doubted upon the findings that the reputation of “ Higgins Soap,” when the defendant corporation was organized, applied to, and designated to-the trade, the soap manufactured by the plaintiff and its predecessors. The promoters of the defendant, knowing the history of the business established by Higgins, Sr., in 1846, its transfer to-the plaintiff, that the product was known to the trade as “ Higgins Soap,” that the business had become very valuable, and that large sums had been expended in advertising it, proceeded to-organize the defendant corporation under the name of the “ Higgins Soap Company,” and to manufacture soap in the same city where the plaintiff’s business was carried on. The inference seems-irresistible that the defendant assumed its corporate name so that it should carry the impression that it was the manufacturer of “Higgins Soap,” so well known to the public. But if the name was assumed in good faith, and without design to mislead the public and acquire the plaintiff’s trade, the defendant, knowing the facts, must be held to the same responsibility as if it acted under the.honest impression that no right of the plaintiff was invaded. The names are not identical, but, as said by Bradley, J., in Celluloid Co. v. Cellonite Co., supra, “ Similarity, not identity, is the usual recourse where one party seeks to benefit himself by the good name of another.” In that case the learned and experienced judge who sat therein expressed the opinion that the use of the corporate name of the defendant should be restrained, although there was a much greater dissimilarity between the names of the parties here. As between these parties the case is,, we think, the same as if the word “ soap ” was written into the plaintiff’s name and its corporate designation was “Chas. S. Higgins Soap Company.” The evidence shows that confusion has arisen, and it is a reasonable presumption that if the defendant is permitted to carry on the business of soap making under its present name the public will be misled and the plaintiff’s trade diverted, the extent of such diversion increasing with the increase of the defendant’s business.

We think the plaintiff, upon the facts found and proved, was entitled to relief by injunction. .

The judgment should be reversed and a new trial granted.

All concur, except Haight, J., not sitting.

Judgment reversed.


author: O’Brien, J.

text:
    In the Matter of the Petition of Marcus T. Hun et al., as Executors, etc.

      (Court of Appeals,

      Filed January 22, 1895.)

    Executors—Local assessment.
    The obligation to pay a local assessment for street improvements, imposed upon the property and duly confirmed prior to the owner’s death, is cast upon the devisees who take such real estate, -unless the deceased signed the petition which conferred jurisdiction.
    Appeal from order of the general term of the supreme court in the third judicial department, which affirmed an order of special term granting the petition of the executors of the will of Jane 0. Van Schaick, deceased, giving instructions as to the payment of certain assessments upon lands in the city of Albany.

      John J. Linson, for app’lt; John Alex. Beall, for resp’ts, Broad-head et al.; Russell M. Johnston, for petitioners, resp’ts'; Frederic DeP. Foster, for resp’ts, Van Schaick et al.

   O’Brien, J.

In this case the executors asked the instructions of the court with respect to their duties and obligations to pay certain assessments, made in the lifetime of the testatrix, upon certain o£ the real estate devised by the will. The courts below have held that the assessments ought not to be paid by the executors, but by the devisees who took the land under the will. The devisees claim that it should be paid by the executors, and this contention presents the only question involved in the appeal.

Jane 0. Van Schaick died May 20, 1893, leaving a will in which the petitioners were named as executors. By the terms of the will she devised certain real estate in the city of Albany to the appellants. The assessments in question had been imposed upon the property and duly confiimed prior to her death, under the provisions of the city charter (Laws of 1883, chapter 298), and have not been paid. The assessments having been imposed for the purpose of paving and regulating streets on which the property was situated, it was necessary, under the provisions of the charter (§ 29), that they should be based upon a petition of a certain portion of the owners of the property to be charged requesting that the improvement be made. When confirmed the assessments became a lien or charge upon the property which could be collected by proceedings for a sale of the same. But no action at law could have been maintained for its collection, nor did it become a debt or personal claim against the owners unless she had signed the petition which conferred the jurisdiction to proceed, and it appeared that she was not one of the petitioners (§ 37). It is the duty of the executors to pay the debts of the deceased and all taxes assessed upon the property which remain unpaid at the time of the death (Code, § 2719), and, unless the assessments in question were a debt or a tax within the meaning ■of the statute, the order appealed from is correct.

The assessments were not a debt, since the testatrix had incurred no express or implied obligation to pay the same in her lifetime, and no action could have been maintained against her by the city, or any other party, for their collection as a personal claim. The burden could have been enforced only through the .statutory proceedings prescribed by the charter against the property upon which it was a specific lien.

It is, no doubt, competent for the legislature to enact that such assessments shall not. only be a charge upon the property and collected out of it, but a personal charge as well, and collected from the person as a debt by action or otherwise; but, as we have seen, the latter remedy was confined by the provisions of the charter to such property owners as, by signing the petition, asked the municipal authorities to undertake the improvement.

The argument in support of the appeal is mainly directed to ■sustain the proposition that the burden resting upon the property at the time of the death of the owner was a tax within the meaning of the statute, and, hence, payable by the executors from the assets in their hands. Smith v. Cornell, 111 N. Y. 550; 20 St. Rep. 116. It is perfectly true that the assessments were imposed upon the real estate by an exercise of the sovereign power of taxation, delegated by‘the state to the governing body of the city. But that does not necessarily make it a tax within the meaning of the statute. The ordinary meaning of that term is the contribution which the citizen is required to pay for his share of the general expense of government, and it may be imposed upon persons or property or both.

Local assessments for improvements in cities or villages are contributions which property owner's are required to pay, not as general burdens for the support of government, but as an equivalent or compensation for the enhanced value which the property has derived from the improvement. The improvement is supposed to have .conferred an additional value upon the property in the locality, and, being a special benefit to particular property beyond what is conferred by general taxation, it is deemed to be equitable and just that the property so benefited should contribute to the expense. Sharp v. Speir, 4 Hill, 77; Sharp v. Johnson, id. 92 In re Ford, 6 Lans. 92; Matter of the Mayor of Brooklyn, 11 Johns. 77; Roosevelt v. Mayor, 84 N. Y. 108; Dillon on Munic. Corp. § 761; Cooley on Taxation, 675.

In the case of taxes imposed for the general purposes of government, there' is a personal obligation upon the citizen to pay, which may be enforced by distress and sale of his goods and by other remedies in the courts, while local assessments, imposed under municipal authority, upon particular property benefited by the improvement, as distinguished from a general tax, are not, as we have seen, a general or personal charge, in the absence of some statute making them such, but are only in the nature of a lien upon the specific property assessed, and the proceedings for their collection are in rem. Cooley on Taxation, 675; Tiedeman on Mun. Corp. § 282; Wolf v. Philadelphia, 105 Pa. St. 25; Litchfield v. Vernon, 41 N. Y. 134; Pierce v. Boston, 3 Met. 520.

The statute requiring the executor to pay taxes imposed upon the property of the testator, prior to his death, refers to the former and not to the latter class of burdens.

The lien of the assessments in this case bears a very close analogy to that of a mortgage upon land that has descended to the heir or passed to a devisee. In such cases the obligation to pay is cast upon the heir or devisee who takés the land. 1 R. S. 749, § 4; Cumberland v. Codrington, 3 Johns. Ch. 229; 3 Redfield on Wills, 414, § 26; 2 Williams on Ex. 1697; Halsey v. Reed, 9 Paige, 454; House v. House, 10 id. 158, 164.

The devisees in this case, therefore, took the real estate burdened with the obligation to pay the assessments, and hence the order of the court below was right and should be affirmed, with costs.

All concur. Order affirmed.


author: Finch, J.

text:
    Daniel H. Deyoe, App’lt, v. Herbert J. Woodworth et al., Respt’s

      (Court of Appeals,

      Filed January 15, 1895.)

    1. Sheriff—Deputy—Fees.
    Under § 154 of the Code of Criminal Procedure, the fees of a’ deputy sheriff, as a peace officer of the county, belong and are payable to him alone, and the sheriff has no right to, or interest in, them.

      2. Contract—Validity—Appointment.
    An agreement by an applicant for the appointment as a peace officer to pay to the sheriff a portion of the fees received by him as such peace officer, is a misdemeanor and void.
    3. Same—Action on bond.
    An action is not maintainable on the deputy’s bond to recover the stipulated proportion of such fees.
    Appeal from an order of the general term of the supreme court in the third judicial department, entered upon an order, which affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial at special term.

      Edgar T. Brackett, for app’lt; T. F. Hamilton, for resp’ts.

      Affirming, 53 St. Rep. 613.

   Finch, J.

The Penal Code provides that a person who gives, or offers to give, any gratuity or reward in consideration of an appointment, to a public office with right to the receipt of its emoluments shall be guilty of a misdemeanor (§ 52); and that a. person who asks or receives any gratuity or reward or any promise thereof as a condition of appointment to a public office or a subordinate position therein shall also be guilty of a misdemeanor. § 53. The substance of these provisions came from the Revised Statutes, and their prohibition has long been the law of the state. They proceed upon the ground that the public service will rapidly degenerate and become corrupt if appointments to office are dictated by money offered or paid instead of by that merit and capacity which should alone be regarded.

The question on this appeal is whether the contract sought to be enforced comes within the scope of those penal provisions, and is, therefore, void. The plaintiff was sheriff of his county and the defendant his deputy. The terms and conditions of the deputation are recited in the bond which the sheriff took and the deputy executed. By its terms the latter covenanted to keep an accurate account of all fees received by him, and to pay over quarterly to the sheriff one-third of all such fees, both civil and criminal, except for per diem attendance at court. The deputy collected and received a large amount of fees payable to him m criminal cases, and for services as a peace officer rendered in the pursuit and arrest of offenders, no part of which has been paid over to the sheriff, and the latter sues upon the bond to recover one-third of these fees. The courts below have held that the contract is void as against public policy, and have refused to enforce it.

The general question came up in the case of Becker v. Ten Eyck, 6 Paige, 68, in its application to an under-sheriff who kept the jail and claimed the resulting fees and perquisites, the sheriff replying that under an agreement with his deputy the latter waste receive but one-half part thereof. The chancellor pronounced that agreement valid, and enforced it according to its terms, putting it, however, upon the distinct ground that the jail fees by law wholly belonged to the sheriff, and he could agree to allow some part of them to he received by his deputy. It was added, however, that the doctrine did not apply to cases in which the deputy is by law entitled to certain fees or perquisites in virtue of his character as deputy merely, and that in such cases an agreement by the deputy to pay over to the sheriff appointing him any portion of the fees or perquisites which legally belong to the deputy as such, is a purchase of the deputation and a direct violation of the statute. The court cited as an illustration of the latter class of cases the decision in Tappan v. Brown, 9 Wend. 175, where a deputy flour inspector, entitled under the statute to fees as such, and in his own right, agreed as the condition of his appointment to allow the inspector to receive a portion of such fees, and which was held to be in substance a purchase of the deputation.. The distinction drawn is manifest. In the first case the fees in question belonged by law wholly to the sheriff; the bills were made in his name and payable wholly to him; all the risk and responsibility was his; nothing was paid him, or agreed to be paid him, for the appointment, but, on the contrary, he employed an agent to do a specified part of his duties, and compensated him by paying a sháre of his own money due to himself as sheriff; while in the second case the deputy inspector, entitled to fees as such by force of the statute, which lawfully were his, and in which his chief had no legal interest, promised, out of his own money, to pay a part thereof to his principal in consideration of an appointment.

The present case is of that character. The defendant when appointed deputy sheriff became at once by that appointment a peace officer of the county. Code Or. Pro. § 154. Warrants for criminal arrests could be issued directly to him. His fees as a peace officer by the law belonged to and were payable to him alone, and the sheriff could have no right to or interest in any such fees unless by force of the deputy’s consent and agreement. In dealing with them the-latter would be dealing with his own money, and an agreement to share a portion of that with the sheriff would be in substance a promise to pay out of his own money a stipulated part as consideration for his appointment. In this case the bills of the deputy were made out in his own name against the towns for fees in criminal cases payable to him as a peace officer, which in no manner belonged to the sheriff by law, and upon which the latter had no legal claim. I think the agreement was void, and that the sheriff cannot recover.

The evils of a contrary doctrine are quite apparent. The law gives to a peace officer fees which it deems adequate, and no more than adequate to secure proper performance of the public duty. The officer becomes a guardian of the public peace, upon whose activity and vigilance very much of the safety of the citizens and the good order of the community depend. If the sheriff may select him, not for his integrity and ability, but for his money, he is exposed to the temptation of choosing for a peace officer the man who will pay over the largest share of his fees, and who is likely to be the worst instead of the best of the applicants. And the latter, compelled in that manner to pay for his appointment, and to serve for inadequate compensation, will often either neglect his duties, or be tempted to make up for his loss by levying contributions upon dives and brothels, upon thieves and swindlers, as the price of protection. The rule of the statute is sound and right, and the courts should enforce it rigorously and without hesitation. In the present case there was no actual wrong intended, but the contract made ought not to be enforced.

The learned counsel for the sheriff seeks to meet the argument by asserting that all fees of the deputy, even in criminal cases, except the per diem allowance, belong to the sheriff. If that be so, it can only be upon the ground that, in all cases, criminal as well as civil, the deputy represents the sheriff and acts in his name, and can do no otherwise, and is merely the hand or arm of the sheriff, "who by that instrumentality does the act. The liability of the sheriff would follow. But there is no such liability for the acts of the deputy in his character as peace officer. Those acts are his own. The authority given him is not derived from the power in criminal cases conferred upon the sheriff, but is given directly to the deputy in his character of peace officer. If in that character he makes a wrongful arrest he only is liable and the sheriff is not responsible, for the deputy is acting not as the representative of the sheriff or under his control, but as an independent peace officer whose authority comes from, and whose duty is due to, the public authority alone. The bond in this case discloses a consciousness of that fact, for it contains a special and vicious covenant that all business coming to the hands of the deputy “which can be done in virtue of his office as deputy sheriff shall be done by him in that capacity and not in any other capacity.” The provision .was an effort to bring the independent duty of a peace officer within the range of the representative duty of the deputy, and might become, if effective at all, very dangerous to the sheriff himself. The services in controversy were not rendered as agent for or substitute of the sheriff and in performance of his duty, but as an independent peace officer, and the dependant was entitled as such in his own right to whatever fees were earned.

The judgment should be affirmed, with costs.

All concur, except Haight, J., not sitting.

Judgment affirmed.


text:
    Adrian Iselin, App’lt, v. John H. Starin, Resp't.

      (Court of Appeals,

      Filed January 15, 1895.)

    1. Appeal—Powee op general tebm.
    The general term, upon reversing a judgment in favor of the plaintiff entered on a decision of the court on trial of issues of fact, cannot render final judgment for the defendant, unless it is clear that, upon a new trial, plaintiff cannot possibly recover.
    2. Same.
    The reversal of the judgment of the special term was held to be just- ■ ifiable.

      Appeal from judgment of the general term .of the supreme court in the second judicial department, entered upon an order, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term and granted a new-trial. ,
    This action was brought to obtain an injunction restraining the defendant from using a roadway leading from the Pelham road, in the town of New Rochelle, Westchester county, to a dock on Neptune House island, and a ferry connecting the mainland with Glen island, or to restrict and confine defendant’s use, thereof to the manner in which defendant’s grantors had used them.
    A stone causeway and road was built over the water separating Neptune House island from the mainland. In 1833 the island was conveyed by William Turpin to Catharine Wyman, wlu> owned the adjacent mainland. Through her will and a deed by her executors it passed to Jacob Rhinelander in 1836, the deed conveying also said road and causeway. In 1837 the island passed, under the will of Rhinelander, to various devisees, who, in 1850, conveyed the island with the road and causeway to Philip Underhill, and conveyed the mainland to other parties. Plaintiff claimed title under various mesne conveyances, each one of which assumed to convey the island, the road and causeway.
    In 1845 the then owners of Neptune island filed their petition which the commissioners of the land office, praying for a grant of land under water, for the purpose of enabling them to extend a steamboat dock then on the island, and asking to establish a dock thereon, with leave to collect wharfage, etc. They therein state that the dock was built “for the convenience of navigation and for the accommodation of steamboats and other craft passing into the bay.” That Rhinelander believed when he took title that title had been obtained to the land under water where the dock stood,‘but that it was subsequently discovered that such was a mistake. It also states that this dock or landing is “a great public convenience, and necessary for the purposes of commerce, and will greatly increase those objects by extending the dock a little farther into the bay, as designated” on a map filed. This map shows the road in question. The petition also states that the contemplated extension of the dock “will be of great public convenience, in a commercial point of view,” and the object of the acquirement of the land was to increase that public convenience by extending it to deeper water, so that larger vessels may moor thereat; also, “that to render a landing place convenient at the place now spoken of, and that the public and others may pass from the mainland either on foot or in carriages * * * to the contemplated dock,” it will be necessary to build an abutment or bridge from the mainland. A patent was granted on this petition. The patent recites that it is for the purpose of promoting the commerce of the state, and the grant was made subject to reservations and conditions expressed, one of which was that if the patentees should not, “within three years from its date, actually appropriate and apply the above-described premises to the purposes of a dock or docks thereon,” the grant shall be void.

      Martin J. Keogh and John F. Coffin, for app’lt; William W. Goodrich and Charles H. Roosevelt, for resp’t.

       Modifying and affirming 54 St. Rep. 357.

   Finch, J.

Whatever else may be true of this case, we are satisfied that the general term erred in rendering final judgment for the defendant instead of awarding a new trial. The disputed question was whether the road across the causeway and over Neptune House island to the ferry landing used to reach Gflen island was the private property of the plaintiff, which he might control as he pleased, or whether it belonged to the public, or, at least, was subject to an easement of passage vested in the owners ■of Críen island as being the dominant tenement. This inquiry involved the investigation of much contradictory testimony. The two titles were separate and distinct, not springing from any common ownership; the evidence ranged over a period of fifty years; and the facts disclosed on each side, or the inferences proper to be ■drawn from them, were disputed at-every step of the way. The •special term found in favor of the plaintiff. The findings describe the two separate lines of title to the respective islands and then declare as facts that the owners of Neptune island built the causeway from the mainland, kept it in repair, put up and maintained signs declaring the road to be private and no thoroughfare and forbidding trespassing, erected a gate at intervals to prevent any claim of public user, and further find that the road was continually used by the permission and for the convenience of its owners merely with a single exception, which was that the proprietors •of Grlen island at first occupied it only for a summer residence, and were allowed to pass and re-pass from the ferry solely by a mere revocable permission, occasionally on that account contributing to the repair of the road. If we assume as true all the facts found the legal conclusion reached justly follows. But the general term reversed. There is no express statement that it was upon the facts, and the Code requires us to presume that it was upon the law, unless the contrary clearly appears in the body of the judgment. Code, § 1338. I think it does appear in the judgment itself that the reversal was founded in part- upon questions ■of fact. It decides that from 1853 the owners of. Grlen island had a right of way over the road, and that their user was under a claim ■of right and color of title; that the land grant proceedings of the owners of Neptune island opened the roadway to general public use; and that it has become a public highway. The decision involved mixed questions of law and fact, title on the one hand and user on the other, opening an inquiry upon which the two courts differed. Dedication and prescription invariably depend upon facts, and it would seem to be the truth involved in the specific findings of the judgment that the facts were to some extent reviewed.

That conclusion might open the whole case to our examination, both on the facts and on the law, but such action on our part i|' needless, except in one direction, in view of what has occurred." Assuming that the general term were right in reversing the judgment, and some exceptions to the refusal of the trial court to find •certain specified facts would seem to justify that action, it remains true that it was error to render final judgment for the defendant because it was not clear that upon a new trial the plaintiff could not possibly recover. Ehrichs v. De Mill, 75 N. Y. 370; Thomas v.N.Y. Life Ins. Co., 99 id. 250.

The only ground upon which such an impossibility can be asserted is the land grant proceeding, which is matter of record. Every other fact in the case is open and at large, and may be disputed by further proof. I do not regard the petition for the land grant as necessarily conclusive. It contains no direct admission that the road is a public highway, or has been dedicated to the public use. But, indirectly and inferentially, it is claimed to make such an admission. The petition recites that the old dock had •always been used as a landing by the public; that it is a great public convenience, and necessary for the purposes of commerce; and that it is needed in order that the public and others may pass from the mainland to the contemplated dock. These statements bear very strongly upon the intent of the petitioners and are difficult to answer, but they are to be considered in connection with the surrounding facts, and, so considered, are not necessarily conclusive.- They do not touch the question of acceptance by the public authorities before a revocation. They are evidence bearing on the intent of the owners—strong evidence, I concede—but not beyond the possibility of answer or explanation.

While, therefore, a final judgment was erroneous, we have still before us the inquiry whether a reversal of the judgment of the ■special term was justifiable at all. One of the claims made on behalf of the defendant was that in 1853 the owner of Grlen island entered upon the place on Neptune island, where the Starin boat landing now is, and constructed the same, which is a substantial inclosure ; and he and his grantees have continued in the occupation of the premises from that time until the commencement of this action.” The court was asked to find that fact and refused, and was requested to find a similar occupation, beginning in 1857, which also was refused. To these refusals exceptions were taken. There is not the least doubt about these facts. The occupation referred to was not at all disputed, but was continuous from 1853 to the present time. It seems not to have been by any license or permission, but under a claim of right. This refusal was an error if the fact sought was material. It seems to me that it was very material. If there was, by the owners of Grlen island, a continuous uninterrupted occupation of the landing place and of the ferry for over forty years, not by permission given, but under a claim of right, it is one of the most important facts in the case, for that adverse occupation of the ferry landing can with difficulty be severed from the right of way to the mainland. Without that right of way the ferry landing was useless for any purpose, except by some uncertain permission, and the refusal of the special term to find the main fact leaves it doubtful what the conclusion as to the right of way would have been if the facts as to the landing had been admitted and due weight given to them. We are not satisfiecl with the conclusions of the special term as to the right of way claimed to have been vested in the owners of Gflen island, and so are of the opinion that a reversal was justified. We refrain purposely from a discussion of the facts in detail in order that the new trial to be awarded may not be unnecessarily prejudiced.

The judgment of the general term should be modified so as to reverse that of the special term and order a new trial, and as modified should be affirmed, with costs to abide the event. '

All concur, except Haight, J., not sitting.

Judgment accordingly.


text:
    The People ex rel. Ferdinand W. Chase, App’lt, v. Edward Wemple, as late Comptroller, etc., et al., Resp’ts. Same, App’lt, v. Frank Campbell, as Comptroller, etc., Resp’t.

      (Court of Appeals,

      Filed January 22, 1895.)

    1. Taxes—Redemption.
    An occupation, continuous and permanent and for the purpose of a home, is such an occupancy as to require notice to the occupant before the tax title can exclude a redemption.
    2. Same—Power oe comptroller.
    The comptroller has no right to review his own order of redemption and annul or vacate it.
    Appeal from orders of the general term of the supreme court in the third judicial department, entered upon orders, which affirmed in each of the above cases a determination of the comptroller and quashed a writ of certiorari.

      Frank E. Smith, for app’lt; 6r. H. Beckwith, for resp’ts.

       Affirming 62 St. Rep. 380.

      Affirming 62 St. Rep. 384.

   Finch, J.

Two writs of certiorari were issuedupon the petition of the relator, one to review the action of the comptroller in accepting a redemption of lot 181 in the Old Military Tract, Franklin county, and the other to review his refusal to vacate that redemption as being beyond his official power.

The redemption itself, upon the papers before Comptroller Campbell, was lawful and proper. They showed that Charlotte GK Hall was the owner of lot 181; thátit had been sold for the-taxes of 1871,1877 and 1881, and bid in by the state and then conveyed to the relator; that the lot was occupied when the time to redeem had expired and no notice bad been given to the occupant, and that notice of the application had been given to the relator who held the tax title. Upon these facts, no reason appearing to the contrary, Comptroller Campbell acted and permitted the redemption. The criticism now made is that the papers disclose no sufficient proof of occupation. They showed that one Kellogg, in 1878, erected on the lot a log house and cleared and fenced about it one acre of the land; that he had ever since lived in the house and occupied the land as his home and cultivated the ground annually, and in addition raised upon other parts of the lot hops and grain and potatoes and cut from it hay. His occupation, continuous and uermanent, and for the purpose of a home, was very different from that which we held insufficient in People ex rel Marsh v. Campbell, 143 N. Y. 335; 62 St. Rep. 332, where a log house was built as a hunting camp on an island, and used only at intervals and as a convenience when engaged in the pursuit of game. The occupancy proved was of such a character as to require notice to the occupant before the tax title could exclude a redemption, and the action of the comptroller was lawful and proper.

But the real difficulty about it appears in the papers on the second writ and rested upon facts unknown to Comptroller Campbell. The application which he found on his files and granted was made to his predecessor, Wemple; was resisted by the relator; and its consideration agreed to be postponed until an ejectment suit brought by Miss Hall against the relator and involving the question of the actual occupancy of lot 181 should be determined. In that action the relator succeeded upon the ground that an accurate survey threw Kellogg’s house off of the lot in question and upon a lot adjoining, and it was while that judgment was in force that Comptroller Campbell, in ignorance of the arrangement with his predecessor, granted the order of redemption. These facts were brought to his attention, and he was asked to vacate his order, but declined to do so solely on the ground of want of power.

I think he decided correctly in that respect. His action so far as it was of a judicial character was bounded and controlled by the strict and limited jurisdiction conferred by the statute. That gave him no right to review his own orders and annual or vacate them except in the single case of the cancellation of a tax sale. He is authorized to vacate such an order on any one of three specified grounds. Chap. 120, Laws of 1873; chap. 711, Laws of 1893, § 21. But no such authority is given as to an order of redemption. The two things are very different. One is in the interest of the state, the other is against the interest of the owner, and the latter authority would keep the owner’s title under a continual cloud; for if, notwithstanding his redemption, it is subject to be annulled and vacated by the order of the comptroller very little of protection or security has been gained.

But it is said that since that officer acts judicially in granting the redemption he has an inherent power to vacate his own orders. I do not understand that he has any power except that which the statute gives him. It is the general rule that officers of special and limited jurisdiction cannot sit in review of their own orders or vacate or annul them. A justice of the peace cannot set aside or alter a judgment after he has entered it. Stephens v. Santee, 49 N. Y. 39. The nearest approach to an exception is in the case of an audit by a board of supervisors to which the learned counsel for the appellant calls our attention. People ex rel Hotchkiss v. Supervisors, 65 N. Y. 225. That case explicitly concedes the general rule, and then goes upon the ground that the boards of supervisors ape a local legislature and exercise quasi judicial powers only in a qualified sense. I know of no other exception, and do not think we can graft upon the special and limited powers of the comptroller when acting judicially the general powers which belong to courts of original jurisdiction.

I think, therefore, both orders were right and should be affirmed, with costs.

All concur. Orders affirmed.


author: Gaynor, J.

text:
    Thomes Canary et al., Pl’ffs, v. Lillian Russell et al., Def’ts.

      (,Supreme Oourt, New York Special Term,

      Mled November, 1894.)
    1. Attorney and client—Lien.
    An attorney has a lien on the sum agreed to be paid on a settlement between the parties.
    2. Same.
    Such lien may be determined by a motion in an action.
    3 Same.
    In such case, the client is not entitled to a jury trial.
    Motion to determine the extent of lien and to impress the-fund, created in the action, with the amount of the lien when so determined.

      Ira Leo Bamberger and Herman F. Koeplce, for motion ; Howe & Hummel, opposed.
   Gaynor, J.

The lien of attorneys upon judgments recovered by them, and the proceeds thereof, did not have its origin in any statute. It grew out of the relation of attorney and client, and the injustice of allowing a client to take the proceeds of his attorney’s work and skill without paying him therefor. As was said in one case, the lien was invented to protect attorneys “ from the knavery of clients.” The method of enforcing the lien was by proceeding in the action itself. The money was required to be paid into court, and was held until the amount due to the attorney was ascertained and paid thereout. Goodrich v. McDonald, 112 N. Y. 157; 20 St. Rep. 509. It is true that when the said lien of attorneys had its origin, and for a long time thereafter, the compensation to attorneys was regulated by statute, and the only fees and charges which they could enforce were those prescribed by statute, so that the lien was for such fees and charges only. By the first Practice Code of this state the statutes (2 Rev. St. pp. 623-631) which constituted the fee bill were repealed, and it was also indicated that “ all rules and provisions of law restricting or controlling the right of a party to agree with an attorney, solicitor or counsel for his compensation are repealed ; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties.”' It was also provided, however, that “ there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity, for his expenses in the action; which allowances are is this act called ‘costs.’ ” Code Proc. § 303. It will be observed that nothing was here said concerning any lien of attorneys. It has, however, been uniformly held that such lien continued. Whatever controversy there has been on the subject has been in respect of the extent of the lien and the method of its enforcement. It would be waste of time to discuss the cases which have arisen concerning the extent of the lien,—whether it covered taxable costs only, or also included the compensation agreed upon,—for in 1889 our present Practice Code'was so amended that for all compensation arising out of agreement the attorney “ has a lien upon his client’s cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosoever hands they may come ; and cannot be affected by any settlement between the parties before or after judgment.” Code Civ. Pro. § 66. These words are comprehensive enough "to cover the cause of action and all incidents in the progress thereof, including its settlement, and the amount agreed to be paid thereupon, which is the case now in hand. A settlement has been agreed upon, the defendant to pay a sum of money therefor. Her present managers áre ready to pay the money, and appear in this proceeding only to submit to any order the court may make. It is objected that the court may not, in this application in the action itself, thus stop the money in transitu, determine the amount due to the attorney for the plaintiffs on quantum meruit, and pay him out of the fund, but that he must be left to bring an action for his services, in which the defendants therein (the plaintiffs herein) will be entitled to a jury trial. If an action were brought by the attorney to enforce his lien, —for, as we have seen, he has a lien by express statute,—the defendants therein would not be entitled to a jury trial; so that objection need not be considered. The only question is whether the attorney’s lien may be enforced in the action itself. As we ‘have seen, that was the method of enforcing it when fee bills existed, and measured the compensation of attorneys. It would not be ¿suggested that that has not also been the method in respect of taxable costs. It seems to me to follow that it is also a proper method in respect to compensation agreed upon, for there are not two liens, one for taxable costs and one for compensation, to be enforced separately, but on the contrary, there is only one indivisible lien. The lien which has long existed in favor of attorneys was by the said Code amendment extended unmistakably, and so as to do away with doubt or controversy, to any compensation due to the attorney by agreement, express or implied. It is the same lien in character and in equitable conscience which existed under the fee bill, only extended to meet the changed relations of attorney and client, in that they are permitted to agree upon whatever compensation to the attorney they please. The motion is therefore granted, the court to take testimony at some convenient time, or a reference may be taken if the parties agree to it. The money may be paid into the Kings County Trust Company to the credit of the action to await further order.


author: Per Curiam.

text:
    Daniel Moynahan, Resp’t, v. James W. Birkett, Impleded, etc., App’lt.

      {Supreme Court, General Term, Second Department,

      Wiled October 26, 1894.)

    Counties—Letting contracts—Bidding.
    Under § 3, chap. 230 of 1884, the rate of the extra, as well as of the main, work is the subject of competitive bids.
    Appeal from a-judgment in favor of plaintiff.

      James & Thomas H. Troy, for app’lt; Sanders Shanks, for resp’t.
   Per Curiam.

Order affirmed, with $10 costs, on the opinion of special term.

All concur.

The opinion of Mr. Justice Bartlett at special term is as follows:

On February 1, 1893, the board of supervisors of Kings county entered into a contract with James W. Birkett, whereby Mr. Birkett agreed to furnish certain materials and do certain work at the county farm, at King’s Park, Long Island, at prices which were specified in the body of the contract. The law providing for the establishment of the county farm requires the board of supervisors to advertise for proposals for the erection of the buildings and for the other improvements there, and to award the contract to the lowest responsible bidder or bidders. Laws 1884, c. 230, § 3. This provision was obeyed in reference to Mr. Birkett’s contract, so far as the work was concerned which was mentioned in the contract itself, as distinguished from the specifications. The contract, however, refers to two sets of specifications. One set is known as “ General Specifications, B,” and is expressly made a part of the agreement. Clause 37 of specifications B relates to extra work. It declares, in the first place, that proposals and contracts must be understood to include and cover in full all the several parts and appurtenances of such structure so as to make a complete and finished work on the location established for the same, and for its complete use and operation, precluding all claims for extra work; but it goes on to provide that additional payments may become due and payable for extra work done in obtaining stable foundation, or for materials required to form necessary artificial foundations, or on account of incidental or supplemental modification of the plans, locations and grades ordered by the proper authority. For such extra work,” says this clause, “the contractor will be paid the following prices: For earth excavation, 25 cents per cubic yard. For excavation of foundations, including all necessary draining and bailing, 45 cents per cubic yard. For spruce or hemlock sheathing and shoring which may be ordered left in the ground, thirty-five dollars per thousand feet, board measure. For each cubic yard of rubble masonry, eight dollars. For each cubic yard of concrete, five dollars. For each cubic yard of brick masonry, twelve dollars.” The effect of this provision is to do away with all competition whatever between bidders, so far as extra work is concerned. The board of supervisors practically say to contractors who contemplate bidding in response to their invitation for proposals: “-We will award the contract to the lowest responsible bidder for the work to be mentioned in the body of the contract, but, if any extra work proves necessary, we will pay for it at the rates fi.xed in clause 37 of specifications B.” In other words, they construe the statute as requiring a letting of • the work to the lowest bidder only with reference to the main portion of a contract, and not at all" with reference to the extra work. I think this is an erroneous construction. In order to carry out .the true purpose and intent of the statute, it is the duty of the board to endeavor to get all the work under a contract— whether it be the principal part of the undertaking, or additional labor which may be requisite—done at the lowest price at which a responsible person will agree to do it. If extra work is contemplated as likely to be needed, then the competing contractors should be invited to bid for that, as well as for the main work. The figures placed in clause 37 of specifications B as the prices to be paid for extra work should have been arrived at as the result of competitive bidding, like the figures in the body of the contract, instead of being fixed in advance by the public authorities.

The present action is a taxpayer’s suit brought to prevent the payment to Mr. Birkett of three items which he claims under the contract in question. These items are $17,100 for 38,000 cubic yards of sewer trenching; $32,725 for 935,000 feet of sheathing, and $25,401.42 for 12,829 square yards of granite pavement. Mr. Birkett asserts that sewer trenching is the same thing as the excavation of foundations mentioned in clause 37 of specifications B, and that the sheathing is covered by the same clause. Assuming that he is right, the objection still remains that the board of supervisors undertook to make this part of the contract without reference to the statutory requirement, that the work should go to the lowest responsible bidder. Their action in so doing was in disregard of the law, as it seems to me, and hence he cannot be entitled to payment for the additional work mentioned in these two items at the rates fixed in clause 37. In reference to the item of granite pavement, the case is different. Gutters were mentioned in the main body of the contract, and Mr. Birkett’s affidavit shows that the granite pavement was merely additional guttering, which proved necessary, and for which he charges at the same rate as he bid. The specifications declared that the schedule of quantities upon which the bids were based were approximate—as near as could be determined in advance. The agreement of the contractor was to do the whole work of regulating, grading, curbing, guttering, and macadamizing the roads at the county farm. As in the case of Sullivan v. President, etc., Vil. of Sing Sing, 122 N. Y. 389; 33 St. Rep. 722, the quantities mentioned in the contract were only the estimates of the municipal authorities, and, if more ■material of the same sort was needed in any instance, the contractor was bound to furnish it. This obligation on his part-implies the corresponding obligation on the part of the authorities to pay him for the material so furnished. My conclusion is that the clause in the contract fixing the prices for extra work without having invited bids on that subject is illegal, and that the payment of Mr. Birkett’s claims for sewer trenching and sheathing at the rates specified in that clause must be enjoined, but that, no sufficient cause has been shown for interfering with the payment of the claim for granite pavement. The plaintiff, upon giving an undertaking in the usual form, in the sum of $1,000, may have an injunction, during the pendency of the action, restraining the county treasurer from paying the claims of the defendant. Birkett for the two items of extra work described in the. pleading as sewer trenching and sheathing. The costs of this motion will, abide the event of the action.