author: PATTERSON, J.

text:
    People ex rel. Patrick M. Haverty, App’lt, v. Edward P. Barker et al., as Commissioners, etc., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 14, 1896.)

    1. Assessor—Removal.
    Removal from office of a member of the board of assessors, on the charge that be is physically incapable of performing the duties of his position, is not warranted upon the fact that he is in feeble .health to some extent and slightly debilitated, where it is not shown that his physical incapacity in any way interferes with the performance of his duty.
    2. Same—Certiorari—Return.
    The recital, in the return of commissioners by a writ of certiorari in such case, that their findings were based, not only on the testimony, but on the appearance of the member when before them, cannot prevent a reversal of their action for insufficiency of evidence, when no description of his appearance when before them is given.
    8. Same—Evidence.
    In such a case, a witness cannot, instead of detailing facts, testify that he has concluded that the condition of the officer interfered with the discharge of his duties.
    Certiorari to review the action of the commissioners of taxes assessments of the city of New York, in discharging relator from the office of assessor.

      Gf- D„ Lamb, for relator; Theodore Connoly, for resp’ts.
   PATTERSON, J.

On the 1st day of August, 1895, and for ten years prior thereto, the relator held the office of assessor under the jurisdiction of the commissioners of taxes and assessments of the city of New York. On the day named he received a notification from such commissioners of their intention to remove him from office, upon the charge that he was physically incapable of performing the duties of his position. He is a discharged Union soldier, and in this proceeding claims the privileges to which he is entitled by the provisions of the statutes of this state concerning veteran soldiers and sailors holding civil office. It is proper to premise that, so far as his statutory privileges and immunities are concerned, there has been no actual or threatened violation of them by the form of the proceedings before the tax commissioners now under review. He was duly and regularly notified of the charge. A day was appointed for a hearing. He was represented by counsel, and every opportunity given him to have the charge fully investigated. So that there.is nothing to be imputed to the commissioners in the way of a violation of the requirements of the laws respecting the conduct of the inquiry before them, as to its form. But it is apparent from the papers brought up on the return of this certiorari that the discharge of the relator was improper upon the evidence before the commissioners. Without deciding now what would be competent evidence in a case of this kind, and confining ourselves to a review of their proceedings as they appear now before us, it is incumbent upon this court to inquire whether, in making the determination at which they arrived, any rule of law affecting the rights of the relator was violated to his prejudice, and whether there was any competent proof of all the facts necessary to be proven to justify the determination at which they arrived. Code Civ. Proc. § 2140. In examining the record for the purposes mentioned, it is quite plain that not only was testimony absolutely inadmissible permitted to be given, and which necessarily must have prejudiced the relator’s case, but, upon all the facts as they are made to appear, there was not sufficient evidence to justify the dismissal from office of the relator. On the contrary, the inferences from what meager testimony there is, rather tend to establish competency than incompetency. The specific charge made against the relator is set forth in a letter dated August 21, 1895, and sent to him by the commissioners of taxes and assessments through their secretary, and is in the following words, viz.:

“ That, owing to your physical ailments, you are incapacitated from discharging your official duties, as contemplated by the provisions of law applicable to your position as one of the board of assessors.”

This specific charge refers directly to the official duties prescribed or contemplated by the law relating to the board of assessors, by consulting which we find that that board is composed of four persons charged with the duty of making the estimates and assessments required by law for building wells, erecting pumps. pitching, paving, regulating, and repairing streets, relaying pavements, constructing sewers, fencing vacant lots and public slips and all other improvements directed by corporation ordinances, for which an assessment must be made, ahd that such assessors, or a majority of them, are also to make estimates and assessments, give all notices in connection therewith, receive and pass upon all objections of owners'of property, and make certificates in accordance with the existing laws relative to- all such matters. The practical methods by which the assessors discharge these statutory duties are somewhat vaguely and generally stated in the testimony of Mr. Jasper, who is secretary of the board, of which the relator was a member. His statement is' that the actual work done by the assessors has been to determine judicially what proportion of benefit one piece óf property shall bear to another in getting at the total cost of the improvement which is passed upon, from figures which he himself has made at times made from returns from surveyors in charge of the work, and at other times from figures made by the chairman of the board, Mr. Wendt; that all these figures are submitted to the board, and an informal talk is had over them, at which they conclude upon the principle to be adopted in levying assessments; claims for damages are also brought to the attention of the assessors, 'objections are filed, and attorneys representing owners of property present claims for damage by affidavits of the owners; that the subjects of damage claims are taken up and considered by the assessors, who personally visit the premises claimed to be damaged, give hearings to the-claimants, and decide such questions as may arise on such claims; that these proceedings are held at regular meetings, after which the assessors consult and make their determination ; that, in the conduct of such proceedings, the assessors, whenever it may be necessary, interrogate the parties; that these meetings are held frequently, and that, during the year 1893 to 1894, 77 claims were presented; from August 1, 1894, to August 1, 1885, 82 claims were presented; that during the year 1895 there were 105 regular meetings of the assessors (which was about the yearly average of regular meetings), and that informal meetings occurred every day; that, at such informal meetings, various persons attended, and conversations with the assessors constantly took place. Such being the general character of the duties of the assessors, the real inquiry before the respondents was as to the incapacity of the relator to perform them, or any of them. No claim or suggestion is made of any mental incapacity on the part of the relator. On the contrary, the testimony is that he had mental capacity to discharge the duties of his place. The only testimony respecting his physical condition is that of Jasper and another witness presently to be mentioned. The former testified that all he observed in the physical condition of the relator was feebleness, tremulousness of his hands, his requiring assistance to put on or take off his overcoat, some slowness of locomotion, and the necessity of helping him to rise from his chair when he was seated, and some difficulty in articulating when speaking. This record may be searched in vain for any other evidence of actual physical incapacit}7, unless it may be some very vague and inconclusive suggestions respecting difficulty of the relator in making memoranda. The crossexaminatión of this witness Jasper distinctly shows that nothing he claims to indicate physical incapacity has in any way, at any time, interfered with the relator’s performance of his duty. In the first place, he distinctly testifies that all the work of the board of assessors was as well and as efficiently done during the year 1895 as at any previous time; that all the claims before it were passed upon as promptly during the year 1895 as before; and that no complaint was ever "made, that the witness heard of, that the duties of the assessors were not properly performed, until the present proceedings were instituted. He also testified that Haverty was at his office regularly, and that he had seen him every day at the office for ten years. He also said that he has seen the relator walking upstairs alone, and has seen him walk across the park alone; that the relator’s hearing was entirely good ; that his sight was fair; that lie was able to read the objections on the assessment list without difficulty; that his signature was legible, and that he made that signature three or four hundred times a year; that there was some difficulty in understanding what the relator said at first, but he never failed to understand him ultimately; and partiimlarly does this witness testify that he cannot state specifically wherein the relator has recently shown less competency then when he originally entered upon the service of the city.

How, it is to be noted that there is a singular absence of testimony as to any one specific thing which disqualifies this relator from performing any particular part of his work, and it is also a striking circumstance that not one single person doing business with the board of assessors has been called upon by the prosecution to give evidence respecting the' condition of the relator or inability to understand him; nor has either one of his three fellow •assessors have been called upon to give any statement respecting his condition. There is no charge or claim or intimation that the work of either of those assessors has been augmented by any inefficiency of Mr. Haverty ; but the testimony is distinct and clear that the whole work of the board of assessors was done as well, as promptly, and as satisfactorily up to the time of the relator’s dismissal as during any period within the knowledge of the witnesses called by those preferring the charge against the relator. It does appear in the evidence that the clerical force of the assessors has been increased, but it also specifically appears that that was not in consequence of any delinquency or incompetency on the part of any of the assessors to do work, but was attributable to the increased business consequent upon the normal growth and development of the city.

The only other witness who testifies upon the subject? is Mr. Baer, and it is scarcely worth while alluding to what he says. H) simply states that he has noticed that the relator has trouble in walking, trouble in writing, and trouble in speaking, and that it is progressive. His testimony is altogether too vague to be the basis of a finding depriving a person of his office upon the charge which has been made against this relator.

Conspicuous in this record is an error of the commissioners in admitting testimony which could not but be prejudicial to the relator, and it was objected to by his counsel. The witness Jasper was asked to tell whether or not the relator’s condition has interfered with the performance of his duties, and if so, to'what extent. Instead of answering this question by detailing facts, the witness answered: “I have concluded that his present condition and his condition for some time has very much interfered with the discharge of his duties.” A motion was made to strike this answer out, but the commissioners would not allow it. It is perfectly obvious that they permitted this witness to determine the very issue they were called upon to try and determinate themselves, and accepted as conclusive his judgment as a determinate factor in the case. Mo argument is needed to show the impropriety and the injustice of such a ruling.

It will therefore be seen that there is nothing whatever m the testimony to sustain the conclusion of the commissioners. But it is argued that inasmuch as they state in their return that their findings were based, not only upon the testimony, but upon the appearance of the relator when before them, which indicated physical incapacity to do his work, their conclusion cannot be interfered with, as it.is simply impossible for the court to review that which is the result of their personal inspection of the physical condition of the relator. It is very true that the court has no power to review that which was the result of such an inspection but the record does not contain one word of description of the appearance of the relator when he was before the tax commissioners. Whether he was palsied, or a paralytic, or was in a state of decrepitude, or what physical impairment he suffered from, if any does not appear. The testimony is utterly insufficient. There is nothing really in the case except a mere declaration of the commissioners that, upon looking at the relator, they were satisfied that he was unable to perform his duty. This cannot be allowed to prevail in a case in which, if any inferences are to be drawn at all from the testimony, they are that the relator 'not only was not disqualified, but that he was capable of performing, and was performing, such duties as were incumbent upon him in the office he held. That he was in feeble health to some extent, and slightly debilitated, cannot be sufficient to deprive him of his office. There must be actual inability to do the work, and not one fact is presented on this record to establish that actual incapacity.

We are therefore compelled to hold that there was not sufficient evidence before the commissioners to justify their .removal of the relator, and that their determination should be reversed, and the relator reinstated in his office as of the date of August 1, 1895„ with $50 costs and disbursements:

All concur.


source: Caselaw Access Project

author: CULLEN, J.

license: Public Domain

text:
    Brooklyn Elevated Railroad Company, Pl’ff, v. City of Brooklyn, Def't.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb'y 18, 1896.)

    1. Railroad—Elevated—Rishts.
    Grants to railroads in public highways must be construed as subject to the paramount right of the public to use 'those highways for all proper purposes.
    2. Same—Street improvement.
    The expense of protecting an elevated railroad from settling hy reason of construction in the street of a sewer mast be borne by the railroad.
    Submission of a controversy «non an agreed statement of facts, pursuant to section 1279 of the Code.
    Hoadly, Lauterbach & Johnson, for pI’S; Albert Gr. McDonald, for deft.
   CULLEN, J.

The defendant, the city of Brooklyn, constructed a sewer through Marcv and other avenues which intersect Lexington avenue, upon which latter street plaintiff maintains an elevated railroad. The contract of the defendant for, the construction of the sewer provided that the contractor should support the sides of the excavation with suitable plank and shoring. In the progress of the work this requirement was complied with, hut, on account of the proximity of plaintiff’s structure to the excavation for the sewer, proper regard for the safety of the traveling public, to guard against the possibility of the structure settling, rendered it necessary to shore up the elevated structure itself. By an arrangement between the parties, this work was done by the plaintiff the question of upon whom the expense of the work properly rested being left to the subsequent determination of the courts. The question of who should pay this expenditure is the one presented on this submission.

We do not think it necessary, even if it were possible, to define or name the exact character of the right or ¿state acquired by the plaintiff in the public streets through which its road is constructed. In the case of People v. O’Brien, 111 N.Y. 1; 19 St. Rep. 173, it is stated that the right acquired by the street railroad in that case was a fee. If the term “fee” is to be construed as referring to the land itself on which the structure is erected, it can hardly be applicable to the case of the present plaintiff, for in the streets of the city of Brooklyn the public acquire merely an easement; the fee of the property remains in the original owners. Also, under the elevated railroads run surface railroads, and the rights of the latter are as great.as those of the former. These roads, too, would have a fee in the street. Thus, it would be possible to have several estates in fee in the same piece of land. We think, however, that the term “fee” is to be applied to the franchise which the railroad company obtains to construct and operate its railroad. We therefore concede the claim of the plaintiff that its right to maintain its railroad, as against the public, is as great as any obtained by the railroad companies in New York, and that its franchise cannot be abrogated or destroyed by the public authorities without compensation.

But though the city cannot derogate from the grant made by the state, and by it to the plaintiff, th;e question still remains, what are the limits and conditions of that grant, and how is that grant to be construed ? As already stated, we are not dealing with ordinary estates or easements in a piece of real property, nor are we dealing with the construction of a deed the phraseology of which is in well-defined legal terms. The franchise of the plaintiff proceeded from an act of the legislature and the action of the city authorities under it. As the public had already acquired a property right in the street, to wit, an easement or right of passage, the plaintiff probably also acquired a certain portion of that public easement, although it remained liable to make compensation to the owner of the fee. The statute under which the plaintiff’s road is constructed authorizes it to construct and maintain an elevated railroad upon the street. Now, this statute did not contemplate the abandonment of the street or the easement of way in it by the public. On the contrary, the value of plaintiff’s franchise would largely depend on the fact that the street was to be kept open and maintained as a public highway. The plaintiff’s road was to be essentially a street railroad, and therein lay its great profit. But, if it was contemplated that the route of the railroad should still remain a public street, it must have been equally contemplated that the public should enter upon it for the purpose of exercising those urban easements which it possesses in city streets, such as the right to lay and construct sewers, water mains, etc. Any grant to the plaintiff must necessarily be construed as subject to the right of the public to enter upon the street for such purposes, and any interference with the plaintiff’s road, in the proper construction of such work, must be considered a burden which; plaintiff assumed to bear. It would be most unreasonable to suppose that the city, knowing that, from time to time, it would have to tear up the street and make excavations therein, should make a grant to the plaintiff, the effect of which would be to subject the city to increased expense in such improvements. In the case at bar, the physical, tangible property of the plaintiff was not injured or taken. At most, it lost the right of the support of its structure' by adjacent land not owned by it. As against an adjacent private owner, the plaintiff, having placed a structure on its land, would have no right to the support of the adjacent land, except so far as it is protected by the charter provisions as to depth of excavations (provisions which have no application to this case). If the railroad of the plaintiff lay outside of the street, the damage it might sustain from grading the street or the city’s entry thereon would be damnum absque injuria. Radcliff’s Ex’rs v. Mayor, etc., of Brooklyn, 4 N. Y. 195; Bellinger v. Railroad Co., 23 N. Y. 42. It is therefore doubtful whether, even assuming that plaintiff-was absolute owner, not only of its roadway, but of the land which it spanned, it would, as a matter of technical law, have any valid, claim against the defendant. But we prefer to rest our decision upon the other ground that grants to railroads or other corporations in public highways must be construed as subject to the paramount right of the public to use those highways for all proper purposes. We do not say that there might not be a use of a street by the public of such a character as to destroy, practically, the plaintiffs franchise and property, and so far unforeseen at the time of the grant as to require compensation to the plaintiff for the injury to or destruction of -its property and franchises. But such uses of the public streets as were notorious and of common exercise at the time of the grant must have been contemplated by all parties, and any grant must be held subject to such uses of the street as would be naturally contemplated. This rule is in accordance with the uniform line of authorities, though few autholitres are to be found on the subject. In the case of Dry-Dock, E. B. & B. R. Co. v. Mayor, etc., of New York, 55 Barb. 298, it was held that the city was justified in interfering with the street railroad by the construction of a sewer. The same doctrine was held in Kirby v. Railway Co., 48 Md. 168; and the general pvinciple is stated in Booth, St. Ry. Law, § 42, and in Elliott, Roads & St. 367. It has been the uniform course in this city and in New York that the street railroad companies bore whatever expense was entailed by the interference of street improvements with their railroad tracks. The case of Manhattan Ry. Co. v. City of New York, 89 Hun, 429; 70 St. Rep. 156, is not in conflict with the views here expressed, In that case, in addition to main-taming the street, the defendant constructed a viaduct, which viaduct destroyed part of the plaintiff’s station. For the expense of cutting down the station to enable the viaduct to pass over it. the defendant was held liable. This liability appears to have been ultimately placed on the ground that the statute of 1853, authorizing the laying out of public highways over railroads, did not authorize the construction of a viaduct through the station. We would be inclined to concur in the decision there made, even on the ground first discussed, that the property of the plaintiff could not be destroyed by the city without compensation, apart from the question of the interpretation of the statute; but such a rule has no application here. The improvement which the city of New York sought to make in the case cited was not only physically destructive of the plaintiff’s property, but was one plainly not within the contemplation of the parties when the grant to the railroad company was made. In these respects it entirely differs from the present case.

There should be judgment for the defendant on submitted case, with costs.

All concur.


author: WILLIAMS, J.

text:
    Henry Wyne Ellis, App'lt, v. Denman Thompson, Resp’t.
    (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 21, 1896.)

    1. Contracts—Breach.
    Where a contract requires the defendant to produce a play in as proper form as is consistent with the necessities of production in a first-ciass theater, and the failure of the play to be successful is due to the defendant’s own neglect of duty, he should not be heard to allege_such failure, in order to defeat the plaintiff’s right to recover the purchaseprice thereof.
    8. Same—Evidence.
    In such case, where the play is produced but twice, and its success or failure cannot be determined from so slight a trial, the plaintiff may prove, for the purpose of showing that the play would finally be a financial success, bow, on these two presentations, it was received by the audience,— whether there w<fl.s applause, and how often; whether the actors were called before the curtían, and how many times; and how the play was received by the people, as evidenced by newspaper and dramatic criticisms.
    Appeal from, a judgment in favor of defendant
    The action was brought upon a written contract, bearing date October 2, 1884, which provided that a play entitled “ Bich and Poor,” written - by the plaintiff for the defendant, should be produced by the defendant, at as. early a date as reasonably convenient, in the United States, and in as proper a form as was consistent with the necessities of production in a first-class theater; that the defendant should pay the plaintiff $100 per week while the ' play was being played, until he should have paid the sum of $5,000; that the defendant should produce the play continuously, if there was a reasonable success attending its production, for the benefit of plaintiff and the success of the play, in consideration of "the plaintiff's making over to the defendant, his héirs and assigns, all right and title to said play; and that the plaintiff should receive the $5,000 in full for the play and all claims thereon. It was conceded that this contract was made, and that thereafter the play was produced December 22, 1884, at Fall Elver, Mass., and December 23, 1884, at Hew Bedford, Mass., and was never produced thereafter. The plaintiff alleged in his complaint that the defendant violated the contract, in that he did not produce the play in as proper form as was consistent with the necessities of production in a first-class theater, and that he did not produce the play continuously; that it' was produced without proper rehearsals having been had; that the defendant did not know his part, and was not in a proper condition to play the same, and that he changed the play in important ’parts, to its great detriment, cutting out parts of it, and substituting therefor material of his own composition, without the plaintiff's consent; that there were not sufficient performers in the cast to properly produce the play, and that there was no prompter present to aid its production; and that about January 1,1885, the defendant notified the plaintiff that he would not again produce the play, or carry out the contract. This action was brought to recover $5,000, as damages for the breach of the contract. The defendant denied the allegations of the complaint as to a violation of the contract, and alleged affirmatively that the play met with no success whatever, but proved an absolute failure, and the defendant discontinued the performance thereof, as he had a right to do under the terms of the contract. The trial was had before the court and jury. The plaintiff testified that about a week after the production of the play the defendant sent for him, and told him that he (the plaintiff) had done his work well, and the play was all right, but that he (the defendant) could not play his part, and that he would not try it again, and that he would try to sell the play. ■ Another witness (Armstrong) testified that he met the defendant shortly after the production of the play, and said to him, “ I hear that you have made a success of the plaintiff’s new play,"’ and the defendant replied, “ Yes; it is a good play, but it is not in pay way.” The defendant testified that he cut out parts of the play, and substituted his own material, and that he did not know his lines-perfectly when he produced the play. Another witness (Salsbury) testified that he was the editor and publisher of a newspaper at Fall River, Mass., when the play was produced there, and that be saw the play produced, having a seat in one of the four front rows of orchestra chairs; that he had been engaged in dramatic criticisms for nearly thirty years, and that during that time he had furnished such criticisms for the press; that he wrote a criticism of this play, after it was produced, and published the same in his newspaper in Fall River. He was allowed by the court to testify further that there was a roughness and want of finish in the initial performance of the play, and that the defendant forgot his lines several times, and needed considerable prompting, and that there was a fair audience present when the play was presented. He was then asked whether the company gave evidence of having properly rehearsed the play before its production. He was also asked how the play was received by the audience, and how the newspapers treated its production, and whether the criticism was favorable or otherwise, and to state the nature of the criticism. He was also asked to state whether the actors were called before the curtain, and how many times, and whether the play was received with applause, and how often. Objection was made on the part of the defendant to the witness’ answering these question; but no suggestion was made in any of the objections that the witness was not shown to be an expert with reference to dramatic representations or dramatic criticisms. The court sustained all these objections, and the plaintiff excepted. At the close of the evidence the defendant moved for a dismissal of the complaint on the ground that the $5,000 was only to be paid at a rate of $100 a week, on the condition that play was a success, and the plaintiff had failed to prove that the play wás a success. The court granted this motion, and the plaintiff excepted.
    Waldorf H. Phillips, for app’lt; A. H. Hummel, for resp’t.
   WILLIAMS, J.

The contract required the defendant to produce the play in as proper form as was consistent with the necessities of production in a first-class theater. He was under obligatioiis to give the play a fair trial, and do what he could to make it reasonably successful. If he failed to do this, he violated the contract, and rendered himself liable for the $5,000, even if the play, in his hands, did not prove to be reasonably successful. If the failure of the play to. be successful was due to the defendant’s own neglect of duty, he should not be heard to allege such failure, to defeat the plaintiff’s right to recover the purchase price thereof. Gallagher v. Nichols, 60 N. Y. 437-448; Risley v. Smith, 64 N. Y. 576. The play was produced only twice. Its success or failure could hardly be determined from so slight a trial. .The sue-' cess referred to in the contract was evidently such success as would put money in the defendant’s pocket. The first two presentations of the play might not, of themselves, have been financially successful; but the play was evidently a good one, and had real merit. For the purpose of showing that the play would finally be a financial success, the plaintiff offered to prove how, on these two presentations, it was received by the audience,—whether there was applause, and how often; whether the actors were called before the curtain, and how many times; and how the play was received by the people, as evidenced by newspaper and dramatic criticisms. Nothing of this kind would the court permit. It did appear that the defendant materially changed the play: that he struck out some parts of it entirely, and substituted his own material for other parts; that he "did not properly commit his lines, or study or act his own part; and that the rehearsals were hardly sufficient. Nevertheless, the plaintiff desired to show that, even under these adverse circumstances, the play was so well received as to indicate it would be a financial success. This was clearly proper evidence. It was for the jury to say whether the play was a success, or would have been but for the neglect of duty on the part of the defendant to properly prepare and present it on the two occasions when it was produced, or if he had not then abandoned the play, and refused to continue its further production. The court excluded comptent evidence offered by the plaintiff on this subject, and then dismissed his complaint for want of proof.

We think the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide event All concur.


author: VAN BRUNT, P. J.

text:
    James A. Flack, Resp’t, v. Roday S. Brassel et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed Febr’y 21, 1896.)

    Evidence—Pleadings—Action on bond.
    In an action by a sheriff, on a deputy’s bond, for loss arising from failure qf the deputy to notify the sheriff that a check received by the deputy from a claimant of attached goods, pursuant to a stipulation between the attachment plaintiff and claimant to secure release of the goods, was, by the stipulation, given as absolute security for any judgment the attachment plaintiff might recover in his action and not merely in substitution for the attached goods, an answer,tin an action by the claimant against the sheriff, in which the plaintiff recovered on the check, was held not to be evidence that, prior to decision of the case of claimant against the sheriff," the sheriff had knowledge of the provision of the stipulation that the check was to be held as absolute security for my judgment of plaintiff in attachment.

      Appeal from a judgment in favor of plaintiff
    A. Furber, for app’lts ; A. Kl'ing, for resp’t,
   VAN BRUNT, P. J.

This action was brought to recover for the breach of the condition of a bond executed by Roday S. Brassel, Andrew Horn, David Moss, and Thomas Melville, and given by the defendant Brassel to the plaintiff, as sheriff, upon his (Brassel’s) appointment as deputy sheriff.. The conditions and obligations of said bond are that:

“ If the said Roday S. Brassel shall in all things well and truly execute the office of deputy sheriff, and if the said defendants, heirs, executors, and administrators, would keep harmless and indemnify the plaintiff concerning the execution and return of all summonses, orders, judgments, process, writs, or warrants, of whatever nature soever, as are or shall be delivered to the sheriff of the city and county of New York, or directed to him, and shall be delivered to the said Roday S. Brassel during the time he, the said deputy sheriff, shall or may, by virtue of the warrant aforesaid, use or exercise the office of deputy sheriff as aforesaid, and shall also save and keep harmless the plaintiff from all liability and from all damages imposed or prosecuted against the said James A. Flack, as sheriff, for or by reason of the said Roday S. Brassel wrongfully or neglectfully executing his said office of deputy sheriff during the time aforesaid, or for and by reason of any manner of nonfeasance or misfeasance or malconduct of the said Roday S. Brassel in the execution of his said office of deputy sheriff, then the obligation to be void, otherwise to remain in full force and virtue.”

The complaint alleged certain derelictions of duty upon the part of the defendant Brassel, aud damage to the plaintiff, and demanded judgment. The defendants answered, and the issues raised by the answer were referred to a referee, who reported in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

The facts appearing before the referee were as follows:

Alfred A. Blair and Albert Hallett instituted an action against the Illustrated News Company, a foreign corporation, in the city court of -New York, and procured an attachment against the property of the defendant, upon the ground that it was a foreign corporation, which attachment was directed to the sheriff of the city and county of New York, and was delivered to said sheriff. The defendant Brassel was the deputy to whom was assigned the execution of the attachment, and he levied upon certain books and papers alleged to belong to the said Illustrated News Company, and took possession thereof. One Horace J. Adams, residing in Boston, Mass., made claim to this property, and demanded the return thereof, upon the ground that he was the owner. Certain negotiations were had between the clerk of Brassel, who bad charge of the matter, and Adams, which resulted in the writing of a letter by the clerk of Brassel to the attorney of Blair & Hallett, as follows:

“New York, March 7, 1889.

“ Geo. H. Fletcher, Esq., Atty., &c.—Dear Sir: Please give bearer'tetipulation to sheriff, authorizing him to release levy on goods in Hobby’s storehouse on receipt by him (the sheriff) of the check of Jordan, Marsh & Go., and to transfer levy from-goods to check. Make it in the form of a stipulation to be signed by you and Mr. Adams. Please sign yourself, before delivering to bearer.

“ Yours, &c., R. P. BRASSEL, per J. Costa, Jr.”

Thereupon a stipulation was given in pursuance of said letter, pnd signed by said Fletcher, as attorney for Blair & Hallet, as follows:

“It is hereby stipulated and agreed by and between the plaintiffs herein and Horace J. Adams, claimant to certain property now subject to an attachment, and in the stores known as 1 Hobby’S Stores,’or warehouses, in the city of New York, that a certain check of Messrs. Jordan, Marsh & Go., of Boston, for an amount sufficient to pay plaintiffs’ claim, interest, costs, and sheriff’s charges, be accepted in place of said property, and that when the said 'check shall be received by the sheriff of the city and county of New York, either drawn or indorsed, so that the same can be collected by him, that the same be accepted by the said sheriff as in place of the lien of the said attachment, and then to be held by said sheriff as security for the claim of "plaintiffs, until final judgment in this action.

“Dated New York, March 7, 1989.

“GEORGE H. FLETCHER, Pl’ffs’Atty.”,

It further appears that Brassel informed the undersheriff of the seizure of the newspapers, and that he desired to substitute the money in lieu of the goods, to which the undersheriff agreed. Adams duly delivered the check mentioned in the stipulation to Brassel, who collected the money upon the same, and gave his check for the amount to the plaintiff. The goods were thereupon delivered to Adams. An inquiry as to the title to the goods or money seems to have been had before a sheriff’s jury, which jury found that the title was in Adams. Prior to the trial before the sheriff’s jury, Brassel told the undersheriff that Adams was here looking for the money ; further stating that he did not see why the undersheriff should not give it to him. And subsequent to such trial Brassel again informed the undersheriff that Adams wanted his money, and he did not see why he should not get it, to which the undersheriff replied that he would have to sue for it. Brassel also testified that at the time he received the money he told the undersheriff that Adams would reclaim the money, as he contended that the goods were his. In due course of time, Blair & Hallett obtained judgment in their action against the Illustrated News Company, and issued an execution on the 18th of April, 1889, which was returned unsatisfied. On the 17th of April, 1889, Adams commenced an action against the plaintiff herein, as sheriff, to recover $1,400, the amount of the check above mentioned, as being his property; and on the 11th of April, 1890, obtained judgment, and the same was paid. On the lltli of June, 1890, Blair & Hallett commenced an action against the plaintiff, as sheriff, upon the ground that he had received the check of Jordan, Marsh & Co., above referred to, as absolute security for the payment of any .judgment which might be obtained in the action in which the attachment was issued. Judgment was obtained in this action against the sheriff. An appeal was taken to the general term, and to the court of appeals, where the judgment was finally affirmed, and the sheriff paid the same; and it was for the amount of this judgment and counsel fees that judgment was awarded in the case at bar, upon the ground that Brassel never informed the sheriff that the money received upon the check in question was to be held as security for the Blair & Hallett attachment, but that all that he informed the sheriff was that the check was received in lieu of the goods. The testimony of Brassel is entirely to that effect. He says that he told the undersheriff that he wanted to substitute the money in place of the goods; and after the trial by the sheriff’s jury, and even before, he urged upon the undersheriff the fact that Adams was the owner of the goods, and that, therefore, the check, or the money realized therefrom, should be delivered up to him. But it is urged that the sheriff must have known of the condition of this stipulation, because, in the action brought by Adams against him, in his answer, he alleged, after speaking of the levy under the attachment against the Illustrated Hews Company —

“That said property was thereupon claimed by the plaintiff in this action, and thereafter this defendant, by one of his general deputies, received from the plaintiff a check of Jordan, Marsh & Co. for $1,400, drawn by the Hational Revere Bank, and a receipt was given for said check by one of the general deputies of this defendant, stating that said check had been deposited in lieu of the goods attached as the property of the Illustrated Hews Company, and that thereafter the said Blair & Hallett made claim that the check was the property of the Illustrated Hews Company, and that the defendant should apply the proceeds of the check in satisfaction of any judgment which said Blair & Hallett might recover in their action against the Illustrated News Company, and further, that the claim of said Adams, the plaintiff, had been waived by the consent and agreement of said Adams.”

But this allegation in the answer is no evidence that plaintiff had knowledge of the provision of the stipulation that this check was to be held as absolute security for the judgment. Certainly the defendant Brassel never notified the undersheriff to that effect, so far as his testimony shows, and there is no evidence that the sheriff knew at the time of' the contents of that stipulation. The allegation in the answer was simply a statement that Blair & Hallett claimed that the Illustrated News Company was the owner of the goods, and therefore entitled to the money, and that the substitution of the goods for the money was a waiver of the claim of Adams. It seems to us that it is impossible to hold, in the absence of any testimony showing any communication whatever to the sheriff or his undersheriff in respect to the contents of this stipulation, that from this allegation he must be proven to have knowledge of it; The whole testimony of Brassel is that the subject of his conversation with the undersheriff was substitution, and nothing else; and there is no evidence whatever that, prior to-the trial and decision of the case of Adams against the sheriff, the sheriff had any knowledge of the security clause. In fact, the sheriff expressly swore that he had no such knowledge.

A claim was made upon the argument that there was a defect in the allegations of the complaint. But, if any such defect existed, our attention has not been called to the place in the record where any objection was taken upon that ground.

There are no other exceptions which require special mention. Upon the facts appearing, we think the judgment was right, and should be affirmed, with costs.

All concur.


author: McCARTHY, J.

text:
    Mark Levy, App’lt, v. Elias Klepner et al., Resp’ts.

      (New York City Court, General Term,

      Filed February 8, 1896.)

    1. Bills and notes—Misapplication.
    The mere fact that the payee of a check diverted it from the use for which the maker intended it, will not render it invalid in the hands of a subsequent endorsee before maturity,

    2. Appeal—Verdict.
    Where the jury are guided in the rendition of their verdict solely by an erroneous charge, it ought to be set aside, even though no exception has been taken.
    Appeal from a judgment in favor of defendants, and from an order denying a motion for a new trial
    Aaron Levy, for app’lt; M. Strassman, for resp’ts.
   McCARTHY, J.

The papers on appeal, filed with the clerk of the court, appear to have been settled and ordered on file by the trial justice on January 20, 1896. The case has not been as well presented as it might have been.

“ Gentlemen of the jury: IE you believe that this check, sued on, was given for the consideration described by the witness—in other words, to meet the note falling due — and to be applied in payment of that note, and that it was not used for that purpose, but was transferred to the plaintiff before the date it was made payable, as appears from the testimony here, then your verdict should be for the defendants. If you believe that that check was given to Ratowsky for a valuable consideration, moving between the parties, and it was transferred to this plaintiff, even though before the date of its payment, the plaintiff would be a bona fide holder for value, and entitled to recover.”

Plaintiff’s counsel asks the "court to charge the jury that the giving of the note by the defendant Ratkowsky to the defendant Klepner was a consideration for the giving o£ the check by Klepner to Eatowsky. The Court: “All the facts are for the jury, and what the consideration for the check was it will be for the jury to say. If they find there was no consideration, they will find for the defendant.”

Verdict for the defendants. Plaintiff’s counsel asks for a new-trial. Motion denied. Exception. Mo exception was taken to the verdict. ' •

We think, however, the trial justice was clearly in error in his charge to the jury as to the law of the case; and when it appears, as in this case, that the jury are guided in the rendition of their verdict solely by the erroneous charge, it ought to be set aside, even though no exception has been taken.

Judgment and order are therefore reversed, and a new trial granted, with costs to the appellant to abide the event

All concur.


author: RUMSEY, J.

text:
    Annie Foley, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 21, 1896.)

    1. Municipal cobfobations—Claim—Filins notice.
    Under chapter 572 of 1886, a notice of an intenlion to commence an action to recover damages for injuries must be in Writing.
    3. Pleading—Notice.
    The fact of the filing of such notice, being a condition precedent to the existence of a cause of action, must be set up in the complaint, or a cause of action is not alleged.
    Motion for a new trial on exceptions, ordered to be heard in the appellate division in the first instance.
    Miller & Miller, for pl’ff; Theodore Connoly, for def’ts.
   RUMSEY, J.

The action was brought to recover damages for injuries which .plaintiff alleged she sustained by reason of the negligence of the defendants. The complaint did not allege that notice of intention to commence the action had been filed with the counsel to the corporation within six months after cause of action accrued, as required by chapter 572 of the Laws of 1886. Before any evidence was given, the court dismissed the complaint, on the defendants’ motion, it being conceded that no written notice had been filed, but that only oral notice had been given. An oral notice is not a compliance with the statute. When the law requires a notice to be filed, it implies that the notice shall be in writing. Pearson v. Lovejoy, 53 Barb. 407, and cases cited. A notice by word of mouth cannot be filed. The filing of the notice is a condition precedent to the existence of a cause of action. Curry v. City of Buffalo, 135 N. Y. 366; 48 St. Rep. 482. The fact of the filing must be set up in the complaint, or a case of action is not alleged. Merz v. City of Brooklyn, 33 St. Rep. 577; affirmed, 123 N. Y. 617; 38 St. Rep. 1014.

There was no error at the circuit, and the motion for a new trial, must be denied, and judgment- for defendants ordered on the verdict., with costs of the application and of the court below.

All concur.


text:
    Thomas J. McKee, as Executor, etc., App’lt, v. Edward D. Weeden et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb'y 21, 1896.)

    1. Trusts—Costs.
    Where a judgment, directing a sale and distribution of the proceeds of a farm bought partly with other than trust funds provides that “plaintiff do recover of defendants Ids costs in this action, and such costs are hereby charged on said premises, payable out of the proceeds of the sale,” the costs should be deducted out of the general proceeds of the sale and not exclu-' sively out of the part belonging to the trust estate under the will.
    2. Same —Commissions.
    In such case the trustee cannot be allowed, out of the trust estate, commissions on the whole amount of the proceeds of the sale, but only on such part thereof as belong to that estate.
    Appeal from an order settling the account of plaintiff as trustee.
    W. R. Page, for app'lt; A. W. Seaman, E. L. Frost and Jubn B., Mayo, for resp’ts. \
   RUMSEY, J.

The plaintiff is the executor and trustee under the will of Hester Gr. Weeden, deceased. He brought this action for instructions as to the manner of settling .up his trust, and on the 7tli day of October, 1890, a judgment was entered containing directions for his action in the matter. It appeared, from the judgment, that he had become the owner of a farm in Jamaica, which he had bought to protect the trust against loss. The judgment determined that he held that farm as trustee for the purposes of the action, and authorized him to sell it, and directed what he should do with the money, a portion only of which belonged to him as trustee under the will. He sold the land, distributed the money, and then filed a petition upon which the order was made from which this appeal is taken. But two questions are presented by it. This action was brought to determine the right of plaintiff in the Jamaica premises, and his duties in regard to them. The judgment made the following direction as to costs:

‘•That said plaintiff do recover of the said defendants his costs in this action, * * # and such costs are hereby charged upon said premises, payable out of, and to be retained by plaintiff from the proceeds of the sale thereof.”

The plaintiff, after the'sale distributed the proceeds in such a way that he had left in his hands, as trustee under the will of Hester Weeden, $6,514.13; and out of this sum he deducted the costs awarded by that portion of the judgment quoted above; and he credits himself, against the trust estate, with these costs, which are $629.60, and thus reduces by that' amount the sum for distribution. The referee finds that the sum of $629.60 should have been deducted out of the general proceeds of the sale, and not out of the trust estate under the will; and he therefore disallows the credit of that amount which the plaintiff claims against the trust estate. In this we agree with the referee. The action was against all the defendants, for the purpose of procuring a judgment settling their rights and interests in the fund which should be derived from a sale of the premises. The judgment, as above quoted, charges the costs against all the defendants and directs that they shall be retained “out of the proceeds of the sale thereof,” This the plaintiff did not do. He attempted to retain thorn out of the trust estate, in disobedience of the plain directions of the judgment. The referee was right in not allowing this to be done, and as to that part of his report it is correct.

The plaintiff complains that commissions are allowed to him out of the amount which is in his hands as trustee under the will of Hester Weeden. He says that they should be allowed upon all of the proceeds of the sale, of the farm. But the fund in his hands is only the trust estate under the will. The remainder of the proceeds of the sale have been distributed pursuant to the directions contained in the judgment. Those proceeds constituted a trust fund, it is true. But it was a fund for the benefit of others besides the beneficiaries under the will. The distribution of that fund, as such, was provided for by the judgment; and, if the trustee of that fund claimed commissions out of it, he should have applied for them before the judgment was entered, and had them allowed in it. That fund does not now exist as such. All that remains is the comparatively small portion of it which he holds as trustee under the will. It would be manifestly unjust to charge upon this fund commissions upon the proceeds of the sale, a large portion of which was paid out for the benefit of other people. The referee was correct upon that point also. No other error is alleged..

The order should be affirmed, but without costs.

All concur.


text:
    Mayor, Aldermen and Commonalty of the City of New York Resp’t, v. Sarah Lynch et al., App’lts.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb. 21, 1896.)

    Trial—Discontinuance of action
    A plaintiff has ordinarily a right to discontinue an action, upon payment of costs, unless by so doing he deprives the defendant of some rights which he has acquired by reason of the bringing of tile action. So held, where a defendant has served an answer asking affirmative relief against a codefendaut, who has no relation to the cause of action set out in the complaint.
    Appeal from two orders allowing plaintiff to discontinue the action.
    Anderson Price for app’lt; W. L. Turner for resp’t.
   VAN BRUNT, P. J.

This action was brought to set aside a certain grant of real estate made by the plaintiffs to one William Lynch, of whom the defendant Sarah Lynch was the successor. The defendant Jarvis was joined as a party defendant for the reason that he claimed to have an interest in said property adverse to the defendant Lynch. The defendant Lynch has never appeared; but defendant Jarvis appeared and served an answer, also serving his answer upon the defendant Lynch, claiming some affirmative judgment against her. The corporation counsel made a motion for leave to discontinue the action, which was granted; and from the orders thereupon entered this appeal is taken.

We can see no reason for interfering with the orders appealed from. The corporation counsel has charge of all the legal business of the plaintiff, and there is no evidence whatever of any dissent on the part .of any of the municipal authorities from the action of the corporation counsel. The plaintiff has ordinarily the right to discontinue an action, upon the payment of costs, unless by so doing he deprives the defendant of some rights which he has acquired by reason of the bringing of the action. In the case at bar the only claim is that the defendant Jarvis has served an answer upon the defendant Lynch, seeking to assert title to the property in question, and that the mayor, .etc., is to stay in court for the purpose of enabling them to settle their differences in this action; the mayor, etc., having no interest whatever in the controversy, being absolutely indifferent as between the parties; and such controversy having no relation whatever to the subject matter of the action as set forth in the complaint,—the action being brought to set aside a grant of certain premises, given by the mayor. The claim upon the part of the defendant Jarvis, which he seeks to assert in this action, is that, as against the defendant Lynch, he has the title to the property. This controversy must be settled in some other action than the present.

The orders appealed from should be affirmed, with $10 costs and disbursements.

All concur.


text:
    Ann A. Foley, Resp’t, v. Charles Phelps, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 21, 1896.)

    Dead body—Mutit.atiou.
    The right to (he possession of a dead body for the purpose of preserva- • lion and bu ial is a legal right, the violation of which by an unauthorized an 1 unlawful mutilation of the corpse before burial gives rise to an action for damages in favor of the surviving wife of the deceased.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.
    F. Bien, for app’lt; B. II.' Tabor, for resp’t.
   PATTERSON, J.

The question presented in this case seems to be one of first impression in this jurisdiction, and comes before the court on appeal from a judgment overruling a demurrer to the complaint. Stated, with precision, the inquiry is whether the defendant is liable civiliter, and to this particular plaintiff, for the unlawful dissection of the remains of her husband,— an act not only unlawful, but constituting, on the assumption that the facts alleged are true, a criminal offense. Tire complaint sets forth that on the 16th of May, 1894, the plaintiff's husband fell through an elevator shaft in a building in the city of Hew York, and was taken, in an unconscious condition, to the Bellevue Hospital, where he died three hours after his admission ; ■ that the plaintiff was a loving and devoted wife, and was under the duty.and obligation, and had the right of burying her husband; that she applied at the hospital for his body, and begged and implored those who were in charge of it not to allow or permit an autopsy to be performed, and gave notice that she would immediately send an undertaker for the body, to remove it to her home, where it would be prepared for burial; that, notwithstanding her request and protestations, the defendant, without her knowledge or consent, procured, assisted, aided, and abetted in performing an autopsy on her husband's body, which autopsy was performed without any authority of jaw, and was willfully done,, by cutting open and otherwise abusing and maltreating the dead body. The complaint, then proceeds to state matter intended to be in aggravation of damages, and ends with a demand for a money judgment.

The learned judge who decided this demurrer at the special term has given no statement of the views which prompted his decision, and we are therefore without the advantage of a preliminary judicial examination of the question involved ; but we have reached the conclusion that, the court below was right in overruling the demurrer, on the case as it is stated in the pleading. The allegations of the complaint clearly establish an unlawful act on the part of the defendant. The unauthorized dissection of human remains is a misdemeanor, under the provisions of sections 308 and 309 of the Penal Code of this state. While it is true that the provisions of the criminal law neither give nor recognize a right to institute a civil suit for damages, still they incontestably determine the wrongful nature of the act complained of. There is a statute specially applicable to the case of a patient who dies, as this plaintiff’s husband did, in one of the hospitals of the state. The act of 1854, c. 123, well known as the “Act to Promote Medical Science,” expressly prohibits the dissection of a dead body,' or its delivery to any one for the purposes of dissection, if the relatives or friends of the deceased object, or if they make application within a certain time (as appears to have been done in this case) for the remains for the purposes of burial.

At the outset of the inquiry the objection is taken to the maintenance of the action that, assuming, for the purposes of the argument, a civil action will lie, the plaintiff has no standing in court to maintain it. This objection proceeds upon the idea that, if any one may bring an action of this character, it must be the next of kin. It has been stated in general terms, in several cases, that, in the absence of testamentary direction on the part of the deceased, the exclusive right of burial, and of designating the place in which human remains shall be interred, is with the next of kin. These cases are referred to and cited in an opinion of Mr. Justice Landon in the case of Snyder v. Snyder, 60 How. Prac. 370; and in commenting upon them that learned judge says:

“Most, of the cases there referred to arise with respect to the right to protect the place where the remains were buried, to prevent a disinterment, or to collect from the executors or relatives of the deceased the expenses of the funeral. In the absence of a contention, prior to burial, as to the right between relatives to designate the place of burial, the broad doctrine that the right rests exclusively with the next of kin can hardly be construed as a judicial exclusion of the right of the widow.”

In this case it will be observed that the question is directly presented with reference to the duty and right the widow owes and has to and over the body of her dead husband prior to interment ; that is, before the remains have passed beyond the necessity of human care and attention. It is provided by the Penal Code of this state that, except in cases specially provided for by law, the dead body of a human being lying within this state must .be decently buried within a reasonable time after death. That duty must be performed by somebody. It has been held in this country that the primary duty of burying a deceased wife is upon the husband. Weld v. Walker, 130 Mass. 423. And it has been expressly determined that, if a husband and wife are living together at time of the death of the former, the widow’s right to the possession of the dead body for the purposes of preservation and burial is a right in the widow paramount to that of next of kin. Larson v. Chase, 47 Minn. 307. We think, therefore, as a matter of law, upon the facts as they are stated in this complaint, and without reference to the allegation of the plaintiff’s duty and right, she may maintain this action, if it may be maintained at all. The forgoing observations are made to meet the possible suggestion that the allegation of the complaint respecting the duty and right referred to is merely one of a conclusion of law, and of course, if it is such, it is not admitted by the demurrer. But, construing the words of the complaint with reference to this matter as we think they should be construed, they are equivalent to an allegation that, as a matter of fact, the plaintiff was the person upon whom had devolved the obligation and responsibility of complying with that requirement of the law respecting the interment of human remains to which reference has been made, and that the demurrer admits that she was such person.

This brings us to the consideration of.the other question involved namely, that concerning the right to maintain an action at all. The ground of objection urged by the appellant is that there can be no such action, because there can be no such thing a's property in human remains. By the common law, and stricti juris, the proposition as to property may be maintainable. A long line oi judicial decisions appear to have established a general doctrine to that effect; but courts of equity have frequently interfered to protect the remains of the dead, and courts of law have also afforded remedies, through formal legal actions, wherever any element of trespass to property, real or personal, was associated with the molestation of the remains of the dead. In more recent times the obdurate common-law rule has been very much relaxed, and changed conditions of society, and the necessity for enforcing that protection which is due to the dead, have induced courts to reexamine the grounds upon which the common-law rule reposed, and have led to modifications of its stringency. The old cases in England were decided when matters of burial, and the care of the dead, were within the jurisdiction of the ecclesiastical courts, and they no longer absolutely controlling. Thus, in the case of Pierce v. Proprietors, etc., 10 R. I. 227, it is stated by the court:

“That there is no right of ‘property’ in a dead body, using the word in its ordinary sense, may well be admitted, yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one towards the dead,—a duty, and we may also say a right, to protect from violation, and a duty on the part of others to abstain from violation; and it may therefore be considered as a sort of quasi property, and it would be discreditable in any system of law not to provide a remedy in such a case.”

But we are not disposed to put the right of the plaintiff to maintain this action on the ground of a property right in the remains of liér husband, nor do we think that the discussion is properly placed when it is rested exclusively upon that proposition. Irrespective of any claim of property, the right which inhered in the plaintiff, as the decedent's widow, and in one sense his nearest relative, was a right to the possession of the body for the purpose of burying it; that is, to perform a duty which the law required some one to perform, and which it was her right, by reason of her relationship to the decedent, to perform. That right of possession is a clear legal right, and to use the language of Mr. Buggies in his valuable report, adopted by the court, in the Brick Church Case, 4 Bradf. (Sur.) 532, “The right to bury a corpse, and to preserve its remains, is a legal right, which the courts of law will recognize and protect.” The right is to the possession of the corpse in the same condition it was in when death surpervened. It is the right to what remains when the breath leaves the body, and not merely to such a hacked, hewed, aud mutilated corpse as some stranger—an offender against the criminal law — may choose to turn over to an afflicted relative. If this right exists, as we think it clearly does, the invasion or violation of it furnishes a ground for a civil action for damages. It is not a mere idle utterance, but a substantial legal principle, that wherever a real right is violated a real remedy is afforded by the law. A right to vote can in no sense be called a pure right of property; it is merely a personal right.; vet who would "not contend that a person obstructing a voter’s right, or preventing his voting, would not be, irrespective or any statutory enactment, liable, even if the candidate of the choice'of the person thus obstructed was elected? Ashby v. White, 1 Smith, Lead. Cas. 264. Although the precise question involved-in this case has not been judicially passed upon, so far as we have been able to ascertain, in the courts of this state, yet it has been decided in favor of the maintenance of the action by the supreme court of Minnesota in the case of Larson v. Chase, supra. In the well-considered and well-reasoned opinion of the court in that case it was held that the right to the possession of a dead body for the purposes of preservation and burial is a legal right, — one which the law recognizes and protects—and that the violation of that- right by an unauthorized and unlawful mutilation of the corpse-before burial gives rise to an action for damages in favor of the surviving wife of the deceased. It is there also held that the rule of damages would allow a recovery for mental suffering and for injury to the feelings occasioned directly by the unlawful mutilation, and that although no actual pecuniary loss or damage was proven. It is not for ns, at this time, to express any opinion with respect to the measure of damages in a case of this kind; but we are satisfied that the action will lie, and will lie in favor of the widow, under the circumstances disclosed by this complaint.

The j udgment overruling the demurrer _ must be affirmed, with costs.

All concur.


author:
      WILLIAMS, J.
      VAN BRUNT, P. J.

text:
    Theodore B. Foulke, Resp’t, v. Eugene Thalmessinger, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 21, 1896.)

    1. Pleading—Judgment.
    It is not necessary to plead a judgment in order to make it competent evidence.
    2. Former adjudication—Statute of frauds.
    The validity of a contract on which the action is based is establised by a judgment in favor of the plaintiff, even as to the defenses not pleaded. So held in case of a judgment in favor of plaintiff in an action on a contract which, by its terms is not to be performed within a year, though the statute of frauds is not pleaded.
    Appeal from a judgment in favor of plaintiff.
    The complaint alleged that on or about the 25th day of April, 1890, the defendant employed the plaintiff; that said employment was to commence June 16, 1890, and was to continue one year, at the agreed compensation of $2,000 per year; that the plaintiff conned to act under isuch employment until January 1, 1891, at which time the defendant terminated the contract of employment, without fault or negligence on the part of the plaintiff, by discharging him from such employment; and that plaintiff had sustained damage by reason of such breach of contract in the sum of $916.67, for which amount he sought to recover damages. The answer contained a general denial, and then set up as a defense that the agreement alleged in the complaint, by its terms, was not to be performed within one year of the making thereof, and that neither the contract, nor any note or memorandum thereof, was ever in writing, or subscribed -by the defendant, who was sought to be charged therewith. It was agreed at the opening of the trial that if a judgment recovered by the plaintiff against the defendant in a prior action between them was not res judicata upon the question of the statute of frauds, alleged in this case, then statute of frauds was a perfect defense to this action. Thereupon the plaintiff offered in evidence such prior judgment roll. The evidence was objected to on the ground that it was immaterial, irrelevant, and incompetent, and, it was urged that, if it was"in any way binding in this case, it should have been pleaded affirmatively by the plaintiff. The court overruled the objection, and the defendant excepted. It appeared from this judgment roll that the prior .action was brought to recover for services rendered by plaintiff under the employment of defendant. The complaint alleged that about April 25, 1890, the defendant employed the plaintiff; that said employment commenced on the 6th day of June, 1890, and continued until the 1st day of January 1891, and was at the agreed compensation or rate of $2,000 per year; that he had been paid on account of such employment $500, leaving a balance due him of $583.33, which was owing, and for which judgment was demanded. The answer admitted that $500 had been paid by the defendant to'the plaintiff, and denied all the other allegations of the complaint. Upon the the trial before the court and a jury, a verdict was rendered in favor of the plaintiff and against the defendant for the amount claimed, and judgment"entered thereon. This judgment roll having been admitted in evidence, the parties conceded that the plaintiff and defendant entered into an agreement of employment April 25, 1890,—the employment to commence on the 16th day of June, 1890, and to terminate on the 16th day of June, 189Í, —at a salary of $2,000 per year, and that "about January 1, 1891, the plaintiff was discharged, without any fault or negligence on his part; and that plaintiff had been paid for his services to January 1, 1891, in casi), and by the judgment in evidence, and that there was never moró than one contract between the parties. The parties consented that all the evidence taken on the trial of the former case should be regarded as evidence upon the trial. The plaintiff rested, and the defendant’s attorney testified that the question of the statute of frauds was in no way raised upon the trial of the former case. Upon this evidence the court ordered judgment for the plaintiff, on the ground, among other things, that the statute of frauds had been avoided by showing that this question might have been litigated in the prior action, and that the validity of the contract wa= passed upon favorably to the plaintiff in such former action. There was no exception taken to this decision,
    I. M. Dittenhoefer, for app'It; Charles A. Decker for resp’fc
   WILLIAMS, J.

In the absence of an exception, we cannot review, the correctness of the decision of the court ordering judgment for the plaintiff. Code Civ. Proc. §§ 994, 1022; Miller v. Larmer, 85 Hun, 313; 65 St. Rep. 877; Smith v. Moulson, 88 Hun, 147; 68 St. Rep. 531. We can only review the exceptions taken on the trial, and the'only one taken was to the reception in evidence of the judgment roll in the former case. If that evidence was improperly received, the exception requires a reversal of the judgment, because the judgment was básed upon this evidence,—resulted solely from it, It was not necessary to plead the judgment, in order to make it competent evidence. It might properly be given as evidence in this ease .of any fact which was, or might have been, determined in the former case, and such evidence would be conclusive, and could not be contradicted. Krekeler v. Ritter, 62 N. Y. 372. The question which the judgment roll was offered as evidence of was the validity of the contract which was conceded to have, been made, to wit, a contract of employment on April 25, 1890, to commence June 16, 1890, and to terminate Juné 16, 1891; at a salary of $2,000 per year, and as to which there was no writing or memoi’andum sighed by the defendant. It is conceded that there was but a single contract.made between the parties. Upon,'this contract both actions were therefore brought. The validity of this contract was necessarily determined in the first action, because upon ‘no other theory could that action have been maintained. It is true that an action might have been brought for the services rendered, as alleged in the first action, though the contract was void under the statute of frauds, and could have been maintained, if the recovery had been sought upon the theory of a quantum meruit; but no such allegation was made in the complaint in that action, and the" recovery was not had upon any such theory. The action was based upon the contract alone, and the judgment recovered therein necessarily involved and established the validity of that contract. The statute of frauds might have been pleaded to that action, and • the contract attacked upon tnat ground, and then upon the real contract being" proved or conceded, as it has been in the present action, the cause of action there alleged would have been defeated on the ground of the validity of such contract. By failing to allege the invalidity of that contract under the statute of frauds, or to insist upon it, in that action, the defendant waived such' validity or claim, and conceded the validity of that contract. We are unable to escape the conclusion, therefore, that the validity of the contract in question was determined in the former action, and that the judgment roll, when offered in evidence in this action, conclusively established such validity, and that it could not be again litigated here. Our conclusion is that the evidence in question was properly received, and that the case was properly decided by the trial court. 1

The judgment should be affirmed, with costa.

‘ BARRETT, RUMSEY, and PATTERSON, JJ., concur.

VAN BRUNT, P. J.

(dissenting).—There is no dispute in regard to the facts of this case. The single question presented is whether a certain judgment roll was improperly admitted» in evidence upon the trial of this action. It appears that on the 23d of January, 1891, an action was commenced by the plaintiff against the defendant to recover for services rendered by the plaintiff to the defendant The allegations in the complaint were that on or about the 25th of April, 1890, the defendant employed the plaintiff; that said employment commenced on the 16th of June, 1890, and continued until the 1st of January, 1891, at the agreed compensation or rate of $2,000 per year; that the plaintiff at all times during said employment performed the duties required of him by said defendant; that the defendant paid the plaintiff the sum of $500, leaving a balance due from the defendant of $583.33; and judgment was prayed for that amount. The defendant, answering, denied the allegations of employment and service, admitted the payment of $500, and denied that there was $583.33 due. The issues thus raised were on the 13th of November, 1893, tried before a jury, and a verdict rendered for the plaintiff; and judgment was subsequently entered on the 16th of November, 1893, in favor of the plaintiff and against the defendant Upon an examination of the judgment roll in question, all that this judgment seems to have established was that the plaintiff employed the de-" fendant from the 16th of June, 1890, to the 1st of January, 1891, at an agreed rate of compensation, which amounted to the sum mentiond in the complaint. It did not establish, or tend to establish, that the contract of employment was made on the 25th of April, or at any time before the actual service commenced, because the judgment would have been the same had the contract of employment been made on the 16th of June, when the service began. Neither does it establish that the rate of compensation was $2,000 a year, but only that under the agreement of employment, whether a monthly or yearly compensation was agreed upon, it amounted, at its termination, to the sum found. And it is to be observed that the allegation of the complaint is that the employment terminated on the 1st of January, 1891, and this seems to have been the end of the contract. The defendant in that action certainly would, from that complaint, have no reason to suspect that a contract for a year, or a series of years, could be established by success in an action under a similar complaint. The cause of action set forth in the complaint was not amenable, under any possible circumstances, to the defense of the statute of frauds, ancl it is difficult to see how a defendant could be called upon to plead any such statute) when he had no reason to apprehend, from the allegations contained in the pleading, that a contract was relied upon which was amenable to such a defense, and which, by its very terms, would refute such an assumption. The defense of the statute of frauds to a cause of action such as was set out in the complaint would have been frivolous.

On the 7th of July, 1892, the plaintiff commenced this action, alleging that on the 25th of April, 1890, the defendant employed him; that such employment was to commence, and did commenceg on the 16 th of .June, 1890, and was to continue until one year from that date, at the agreed compensation of $2,000 per year; that the plaintiff continued to act under said employment until the 1st of January, 1891, on or about which day the defendant terminated the contract of employment, without any fault or neglect on the part of the plaintiff, by discharging the plaintiff from the ernploymsnt; that the plaintiff at all times between the 1st day of January, 1891, and the 16th of June, 1891, was ready and willing to perform the duties required from him under the terms of said employment; that he endeavored to find employment, and could not; and that, by reason of the breach of the contract on the part of the defendant, he had been damaged in the sum of $916.67. The defendant, answered, denying the contract of employment, the allegations of service and readiness for service, and damage, and, for a separate defense, alleged that the contract sued upon, by its terms, was not to be performed within one year from the making thereof, and that neither said contract, nor any note or memorandum thereof, was ever made in writing, and subscribed by the defendant, who is sought to be .charged therewith. These issues coming on to be tried, a jury was waived, and the judgment roll in the first action was offered in evidence. This was objected to as immaterial, irrelevant, and incompetent, and that it should have been pleaded affirmatively. The last objection has no weight. It seems to me, however, that it was clearly immaterial, because it utterly failed to establish the contract that was sued upon in this action. It only established the contract that was alleged in that complaint, which was not a contract for a year, and in which no reference was made to a contract for a year; and there was nothing in the complaint which called the attention of the defendant to the fact that it would or could be claimed that any contract for a year had been entered into. Under such circumstances, it does not seem to have had any tendency to establish a contract absolutely different from that which was alleged in the complaint in the first action, as has already been observed. The defendant had no reason to suppose, from the allegations contained in that complaint, that a contract for a year was being relied upon. There was no intimation of anything of the sort. All that the defendant was bound to do was to meet the issue presented, and not to borrow trouble in respect to a different contract which the plaintiff might possibly have declared upon. If such a judgment roll is to establish this contract for a year under the guise of an action upon a contract of employment for six months, then a contract for a series of years might be established, of which the defendant may not have had the remotest idea of suspicion. It is true that after the introduction of this judgment roll the defendant made an admission that a contract of employment had been entered into between the plaintiff and the defendant on the 25th of April, 1890, * the employment to commence on the 16th of June, 1890, and terminate on the 16th of June, 1891, at a salary of $2,000 a year, and that the plaintiff was discharged without any fault or neglect on his part, and that it was also conceded, for the purposes of the present action, that the plaintiff had been paid up to January 1, 1891, in cash and by the judgment in the first case. But it is difficult to see how this concession can enlarge the judicial effect of the judgment in the previous action. The effect of that judgement must be governed by the causes of action set out in that complaint, and the defenses contained in the answer. And its effect as a judicial determination cannot possibly go beyond that. If the claim made upon the part of the plaintiff in this action is well founded, then the extent of the judicial determination in the first action depends upon the knowledge of the defendant, and. not upon the record. If the admission contained in the record before us extends the judgment, it has the effect above stated. It seems to be conceded that without this admisston the first judgment would not have been conclusive. But it is contended that, because the defendant knew of a contract which was not declared upon, therefore the judgment in the first action established that contract. I do not think that the extent of .judicial determinations, where there is no ambiguity in the record, can be enlarged by any such uncertain and unsatisfactory evidence as the rule claimed would permit. I must therefore dissent from the prevailing opinion, as I think the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant, to abide the event, and the appeal from the order dismissed.


author: BROWN, P. J.

text:
    Abram C. Gibson, App’lt, v. Daniel J. Roach et al., as Trustees, etc., Resp’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 18, 1896.)

    1. School districts—Expenditures.
    The inhabitants of a school district, assembled at the annual meeting, has no power to authorize an expenditure by the trustees which is not contained ih the estimate prepared by such trustees and posted as required by the statute.
    2. Same—Salary op clerk.
    No compensation is recoverable for the performance of a public service or of official duty, unless it is given by law.
    Appeal from a judgment dismissing the complaint
    Charles L. Hubbell, for app’lt; William J. Powers, for resp’ts.
   BROWN, P. J.

This action was brought by a taxpayer to obtain a judgment annulling a resolution passed at the annual meeting of school district No. 2 in the town of Oastleton, county of Richmond, which fixed the annual salary of the clerk of said district at $200, and to restrain the defendants, the trustees of said district, from paying said salary to said clerk. The statute applicable to the case is chapter 510, Laws 1855, the first section of which is as follows :

“ Section 1. The trustees of each of the school districts, two, three, five and seven, in the town of Oastleton, in the county of Richmond, shall annually at least three weeks before their annual meetings, or three weeks before a special meeting which may be called for that purpose,, in their respective districts, prepare an estimate of the amount which they shall deem necessary to pay the debts of their districts and for the support of common schools therein for the ensuing year, exclusive of the money which they may be entitled to receive from the town superintendent, and including the sum required for building, for the purchase of necessary furniture, apparatus and books and for contingent expenses, and shall cause notice thereof to be posted for two weeks previous to said meeting, in at least five of the most public places in the district. And they shall present such estimate at such meeting, when the inhabitants so assembled shall vote thereon for each item separately, and the same or so much thereof as shall be approved by a majority of such inhabitants shall be levied and raised by tax on such district, as now prescribed by law for raising school district taxes.” •

An itemized estimate was prepared and posted by the trustees, in compliance with the provisions of the statute, but said estimate contained no item for the clerk’s salary. At the annual meeting, however, the inhabitants of the district there assembled voted in favor of appropriating the sum of $200 for said clerk’s salary for one year, and a resolution to that effect was voted upon as a separate item.

The question presented is whether the inhabitants of the school district assembled at the annual meeting had power to authorize an expenditure by the trustees which was not contained in the estimate prepared by such trustees, and posted as required by the .statute. School districts are quasi corporations, and the inhabitants thereof possess only such powers as are expressly conferred upon them' by law., Tbe inhabitants of the school districts mentioned in the act of 1855 have no power to raise money by taxation, except such as is given by that statute. As a condition precedent to any action by the inhabitants of the district at an annual or special meeting, the trustees were required to prepare an itemized .estimate of the amount of money required, and it was only upon such an estimate that the inhabitants could vote. It will be observed that such estimates could be approved by a majority of the inhabitants present at the district meeting. A taxpayer of the district might, therefore, give a tacit approval of the estimate by his absence from the meeting; and the requirement that notice of the estimates should be posted for two weeks prior to the meeting would be of little value, if appropriations for purposes not contained in the estimate could be voted at the. meeting by such of the inhabitants, as should be present thereat The purpose of the statute, we think, is to limit the power of the district meeting; and no money could be authorized by the meeting, except such as had been stated in the estimate prepared by the trustees. The case of Graham v. Powers, which was decided at special term, in 1887, has no hearing upon the question now presented. That was an action by a district clerk for his salary, and the case came before the court upon a demurrer to the complaint. It did not present any question as to the power of the district meeting to appropriate moneys, nor did the court construe the act of 1855. The question then presented and decided was wholly one of pleading, and the decision assumed that the provision of the statute in regard to raising money had been complied with.

The argument of the respondents that it must be presumed that it was intended by the statute that the cleric should receive a compensation for his services has no force. The general rule in the United States is directly opposite to that claimed. It is that the rendition of the services of a public officer is deemed to be gratuitious, unless a compensation therefor is fixed by statute. Throop, Pub. Off. § 446, and cases cited in the note. Hence no compensation is recoverable for the performance of a public service, or of official dusies, unless it is given by law; and there is no implied obligation on the part of a municipal corporation, and no such relation between such corporation and its officers, as compels the former to make renumeration to the latter. Haswell v. Mayor, etc., 81 N. Y. 255. It is a matter of common knowledge that in many, if not in the majority, of the cities and villages of our state, the corporate trustees, and members of municipal boards and commissions, serve without compensation. At common law it was an offense for a person chosen to public office to refuse to se^ve. Com. Dig. tit. “ Officer,” B1. And the English Reports contain many cases where persons chosen to fill offices in municipal corporations were compelled by mandamus to perform the duties. See cases cited in note to section 165, Throop, Pub. Off. In this country it is not uncommon for statutes to subject to a penalty a person chosen to public office, who refused to accept it. Provisions of this character are based upon the theory that the rendition of public services is a duty owed by the citizen to the community in which he resides. Such statutory provisions do not, however, alter the application of the rule that compensation cannot be recovered for public services unless it is given by law. In the case before us, although the district meeting fixed a salary to the office of district cleric, and the clerk may have relied upon that as giving compensation for his services, still he was chargeable with notice of the limitation of the statute upon the power of the inhabitants to authorize expenditures by the trustees, and never became legally entitled to receive the salary so fixed. The adoption of the resolution by the district meeting was an illegal act, and, upon the facts presented at the trial, judgment should have been rendered as prayer for in the complaint.

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

All concur.


text:
    Sacharize Isear, Resp’t, v. William Daynes et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 21, 1896.)

    1. Action—Consolidation.
    The supreme court has power, in a proper case, to consolidate with an action pending in it another which is brought in a district court of the city of New York, but the same conditions must exist that would authorize a consolidation of actions pending in the supreme court.
    2. Same.
    The essential condition of the exercise of this power is that the two actions must be against the same defendants, as well as on causes of action which may be joined.
    S. Same.
    Two actions cannot be consolidated as against the same defendants, • where one action is against several defendants and the other action is against such and other defendants.
    a
    4. Same—Stay.
    In such case, the proper practice is for the defendants to move to stay the trial of the district court action until the trial of that in the supreme court.
    Appeal from an order, denying defendants’ motion to consolidate with this action an action pending in the district court against them, and in favor of plaintiff herein.
    L. J. Langbein, for app’lts; A. Perry, for resp’t.
   PATTERSON, J.

It appeared by the affidavit of the moving parties that this action was instituted against fifty defendants, among whom were Daynes and Yan Der Hoogt It was brought upon a policy of insurance, upon which each of the fifty defendants was alleged to be liable severally. The summons was served on the defendants Daynes and Van Der Hoogt on the 9th of November, 1895. It further appears that on the 16th of October, 1895, this plaintiff commenced an action in one of the district courts of the city of New York on the same policy of insurance, but only against the two defendants on whose behalf the motion now under review was made. That motion was to consolidate the action pending in the district court of the city of New York with this, action, and for other relief. The court, at special term, denied the motion to consolidate, and also denied the application made at the same time, under a demand of other relief, to stay the trial of the action in the district court until that pending in this court shall be tried. The denial of these applications was upon the ground of want of power in the court.

As to the consolidation: Construing the order as meaning the want of power under the particular circumstances of this case, the action of" the court was not erroneous. There can be no doubt of the power of this court, in a proper case, to consolidate w.ith an action pending in it another which is brought in a district court of the city of New York, but the same conditions must exist that would authorize a consolidation of actions pending in this court. Section 817 of the Code of Civil Procedure provides that where two or more actions in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending in the same court, the court may, in its discretion, by order, consolidate any or all of them into one action ; and section 818 provides that where one of the actions is pending in the supreme court, and another is pending in another court, the supreme court may, by order, remove to itself the action pending in the other court, and consolidate it with that pending in the supreme court. But the essential condition of the exercise of the power is that the two actions must be against the same defendants, as well as on causes of action which may be joined. This action now pending in this court is not against the same defendants as that pending in the district court. The complaint in this cause is upon the same instrument, but there are forty-eight other defendants, and the demand of the complaint is for a judgment against all the defendants for the sum of $2,500, which was the amount for which the policy was written in the aggregate. The right to maintain such an action against all of the underwriters upon the policy seems to be based upon the provision of the Code of Civil Procedure by which it is enacted that, where two or more persons are severally liable upon the same instrument, they may all or any of them be included as defendants in the same action, at the option of the plaintiff. Code Civ. Proa, § 454. These underwriters are severally liable. Instead of fifty suits, one against each, the practice allows one suit against all the parties. After >.he suit in the district court was commenced, the plaintiff elected to bring one action against all. It is therefore an action with different defendants, and, although a several judgment may be obtained against these defendants, it is nevertheless not a suit against the same defendants.

We think the proper practice in this particular case was for the defendants "to move to stay the trial of the district court action until the trial of that in this court. There is abundant power in this court to direct such a stay. Cushman v. Leland, 98 N. Y. 652. And in order that such an application may be made, the order to be entered hereon may contain a provision staying all proceedings until the hearing and determination of a motion for a stay to be made at special term, not exceeding twenty days.

The order appealed from should be modified by insertion of the provision above named, and without costs.

All concur.