text:
    William Furlong, Resp’t, v. The Agricultural Insurance Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Insurance (Fire)—Pleading.
    Where the policy requires the service of proofs of loss in a certain form and within a certain time as a condition precedent to a right to recover thereon, no recovery can be had where the complaint fails to allege the service of proofs of loss.
    2. Same—Misrepresentations—Overvaluation.
    The policy provided that “ any .misr-presentations or concealment, or overvaluation of property or fraud,” should forfeit all claim under it. The proofs of 1 ss stated the value of the personal property to be $1,161; a list presented on the trial showed it to be $450, and the jury alldwed for it less than $b(). The court charged the jury that plaintiff could not recover if he had knowingly put an overvaluation on any article. Meld, that the verdict was clearly against the weight of evidence and should not be allowed to stand.
    Appeal from a judgment entered in Broome county on the 21st August, 1891, upon the verdict of a jury at the Broome circuit, May, 1889, in favor of the plaintiff for $378.30; also appeal from order denying a motion for a new trial.
    Action to recover upon a fire insurance policy for loss of house and contents.

      A. H. Sawyer, for app’lt; Edward H. Clark, for resp’t.
   Merwin, J.

In the complaint in this case it is alleged that in or about May, 1886, “ said defendant duly insured plaintiff against, loss or damage by fire, at any time within three years from said May, 1886, and by which insurance, as stated in the contract of insurance, said defendant agreed to pay to plaintiff all damage by fire to said house, not exceeding $1,000, and all damage by fire to said contents not exceeding the sum of five hundred dollars ; ” that while said contract was in full force and on or about August 1, 1887, without fault of plaintiff, the property was totally destroyed by fire except a few articles of little value; that by reason of such destruction plaintiff was caused a loss of $1,000 on the dwelling house and $500 on the personal property; that “ by reason of such contract of insurance and such loss and damage said defendant became indebted to said plaintiff in the sum of $1,500, and that defendant neglects and refuses to pay the same or any part thereof.” Judgment was demanded for $1,500 and interest from August 1, 1887. There was no allegation that any proofs' of loss had ever been served on the defendant. The action was commenced on the 30th July, 1888.

Upon the trial, the plaintiff put in evidence as the foundation of his cause of action a policy of insurance in the ordinary form issued by the defendant. From this it appeared that- the service by plaintiff of proofs of loss in a certain form and within a certain rime was a condition precedent to his right to recover. Thereupon the defendant made the objection that there could be no recovery by plaintiff under the complaint by reason of the lack of any allegation that any proofs of loss were ever served. This objection the court overruled and the defendant excepted. This exception was well taken.

The plaintiff sought to recover upon a conditional contract, and it was therefore incumbent upon him to allege as well as prove the performance of conditions precedent. Bogardus v. N. Y., Life Ins. Co., 101 N.Y,, 334; Inman v. Western F. Ins. Co., 12 Wend., 452; 2 May on Insurance, § 589. The conditions did not appear on the face of the complaint. They did, however, upon the contract proved as the basis of the claim. As soon as this appeared, the defendant had the right to take the position that the allegations of the complaint were not sufficient to authorize a recovery upon such .a contract. There is nothing in the answer that relieved the plaintiff in this regard. It is not there admitted or alleged that the proofs required by the policy had ever been served.

The plaintiff did not apply for an amendment of his complaint. He took the risk of its sufficiency, and as said by this court in Alleman v. Bowen, 39 St. Rep., 823, he cannot on this appeal be relieved from his position. In such a case the pleading cannot, .after trial, be conformed to the proof.

Upon the facts, a peculiar case is presented. There is in the policy a provision that any misrepresentations or concealment, or over valuation of property, or fraud, or false swearing in any statement or affidavit in relation to any loss' or damage, shall forfeit all claim upon the company by virtue of this policy, and shall be a full bar to all remedies upon the same.” Whether there had been a violation by the plaintiff of this provision was one of the main issues at the trial.

In the proofs of loss, which were verified by the plaintiff and delivered to the company, the personal property that was lost was valued at $1,161.60. The items making up this amount were stated in a schedule, and in the affidavit of verification it is stated that the schedule of articles lost had been carefully read to the affiant, and that he knew the contents, and that each of the articles was worth in cash the amount stated. At the trial, a list of articles was presented on behalf of the plaintiff which, as the wife of the plaintiff testified, was a correct statement of the property destined, and of the value thereof. This list in value aggregated the sum of $450, and that was claimed by the counsel for plaintiff to be the value of the personal property. The verdict of the jury was $378.30. This included the loss on the house as well as on the personal property. There had been an appraisal of the loss on the house at $275, excluding, however, a lean-to, the value of which, at the trial, was shown to be from $10 to $40. The court instructed the jury that they were bound to take the loss on the house at the appraisal. Deducting from the verdict the $275 and the interest thereon which the jury were instructed to allow, it would leave about $80 allowed for the lean-to and the personal property. There had been an appraisal of the loss on the' personal property at $42 which the plaintiff claimed was improperly obtained, and it is now suggested by the plaintiff’s counsel that the jury in arriving at their verdict must have taken this appraisal as correct.

There was in the case a question of waiver as to the matter of the appraisal of the personal property, and the court charged the jury that the plaintiff could not recover at all on the personal property unless they found in favor of plaintiff on that subject, and if they did so find, that then they should “ proceed to see how much this personal property was worth,” and for that pur-i pose had the right to consider all the evidence, and should by their verdict say what the value was. We must, therefore, I think, assume that under the charge of the court the balance of the verdict, over and above the $275 and interest, represents the finding of the jury of the value of the personal property and the lean-to. It will be noticed how great a disparity there is between the value as so found of the personal property and the amount stated in the proof of loss, as well as that stated in the list presented at the trial. Such a disparity has been held in some cases sufficient of itself to require the finding of fraud. Sternfeld v. Park Fire Ins. Co., 50 Hun, 262; 19 St. Rep., 333 ; Wall v. Howard Ins. Co., 51 Maine, 32; Sleeper v. N. H. Fire Ins. Co., 56 N. H., 401; Levy v. Baillie, 7 Bing., 349; 2 May on Ins,, § 477.

It is in effect conceded that the list attached to the proof of loss was a great exaggeration, but it is claimed that it was made up under the direction of the local agent of the defendant. It is not claimed that this agent had any personal knowledge of the property, but that he suggested values which the plaintiff adopted. This the agent denies, and he is corroborated by two other persons that were in his office. The agent did not make up the proof of loss, but that was prepared by an attorney, entirely disinterested so far as it appears, and was then sworn to by plaintiff. It is difficult to see how, upon the plaintiff’s own evidence, so large an exaggeration can be honestly attributed to a mistake, or to any suggestion of the agent of defendant. This, may be illustrated by a reference to one or two of the items. One item in that list was a sewing machine, fifty dollars. The first witness for the plaintiff at the trial, being a daughter of the plaintiff, testified that this machine was worthless, and in the list presented at the trial as representing the value of the property nothing is claimed for it. In the proof of loss another item is “ 64 yards new carpet at $1, $64.” In the statement presented at the trial fifty yards ingrain parlor and bed room carpet are claimed for at seventy-five cents a yard, and twenty-five yards rag carpet at twenty-five cents a yard. Upon the trial, from the evidence of the wife of plaintiff, upon whom the plaintiff relied on the subject, and who assisted in making up the original list, it is very clear that no such amount of carpet was destroyed, and whatever was destroyed had been in use for many years.

The court in substance charged the jury that the plaintiff could not recover if he knowingly put an over valuation on any article. The jury in effect found he did not. Such a finding is clearly against the weight of the evidence. A careful examinatian of the evidence in the appeal book leads irresistibly to that conclusion. In such a case it is the duty of this court to set aside the verdict. Smith v. Ætna Life Ins. Co., 49 N. Y., 211. We think that in this case the verdict should not be allowed to stand.

Judgment and order reversed upon the law and the facts, and new trial ordered, costs to abide the event.

Martin, J., concurs.


source: Caselaw Access Project

author: Gtegerich, J.

license: Public Domain

text:
    Alfred Fatman, Resp’t, v. Solomon J. Fatman, Individually and as Ex’r, App’lt.

      (New York Common Pleas, General Term,

      Filed May 2, 1892.)

    1. Depositions—Examination to enable plaintiff to pbepabe complaint.
    Allegations in an affidavit that defendant is executor of the father of the parties, who directed the executor to represent him in and to continue a copartnership; that the inventory showed the interest in the partnership to be $275,900; that defendant has refused to render an account and pay plaintiff his share; that plaintiff has no knowledge, except the testimony of defendant and the partners, as to the terms of the partnership, nor who were the partners of deceased at the time of his death, nor the result of the operations of the firm, nor what changes have taken place in its membership, nor how they have affected the interest of the estate in the firm, nor what is left of the trust fund, and that defendant’s testimony is necessary to plaintiff in the prosecution of the action and to discover the names of other defendants, is sufficient to entitle plaintiff to an order for the examination of defendant to enable him to frame his complaint.
    3. Same—Affidavit.
    In such a case it is not necessary that the affidavit should state a complete cause of action; it is sufficient that the nature of the action is stated and the substance of the judgment demanded.

      3. Same—Accounting—Common pleas.
    An action for an accounting by an executor may be maintained in the court of common pleas, where judgment is sought establishing and adjudicating the rights of plaintiff in real as well as personal property.

      4. Same—Limitation.
    It is no objection to the granting of an order for examination that the statute of limitations would probably be a bar to the action; as the statute is always <an affirmative defense, and it cannot be presumed that it will be pleaded.
    5. Same—Scope of examination.
    The scope of the examination should not be limited by the order where it is to be taken before a judge and not before a referee.
    Appeal from an order of this court denying a motion to vacate or modify the order made herein for the examination of the defendant to enable the plaintiff to frame his complaint in this action.
    The facts are stated in the opinion.

      J. A. Shoudy, for app’lt; William J. Hardy, for resp’t.
   Gtegerich, J.

Joseph Fatman, father of both plaintiff and defendant, died in October, 1869. lie was then a member of the firm of Fatman & Co., of New York city. By his will he directed his executor to represent his interests in said copartnership, and to all intents and purposes carry out said copartnership in the same manner as though the testator were living during the period provided for in the articles of copartnership, and that the said partnership should continue and be prosecuted by the remaining partner and his executor.

The defendant became the sole executor under his father’s will, and in January, 1870, about three months after his father’s death, filed an inventory showing personalty of the appraised 'value of $327,797.29, including the testator’s interest in the firm of Fat-man & Co., which was appraised*at $275,000.

The plaintiff demanded from the defendant an accounting and the payment to him of his share of his father’s estate, but the defendant refused to comply with the demand, and the plaintiff now brings this action for the purpose of obtaining a judgment establishing and adjudicatingthe rights of the plaintiff in thereal and personal estate of his father, and requiring and directing the defendant, as sole executor and trustee of said Joseph Fatman, deceased, to file and judicially settle his account and to pay over to the plaintiff his share in the proceeds of the said estate as a legatee of the said testator.

Upon the affidavit of the plaintiff setting forth these facts and other facts and circumstances, which will hereinafter more fully appear, an order was made for the examination of the defendant to enable the plaintiff to frame his complaint Thereafter the defendant moved to vacate, set aside or modify such order, which application was founded upon his affidavit, wherein he states that the firm of Fatman & Co. was dissolved by his father’s death; that its affairs were liquidatéd by Louis Fatman,. as surviving partner; “that all of the assets of said firm and of both partners were used to pay the debts of said firm, and that after all had been applied, left over half a million of indebtedness unpaid; ” that in 1869 a new firm composed of the defendant individually, and the said surviving partner, Louis Fatman, was organized for one year; that it received none of the assets of the former firm and had no connection with its business; that in 1870 “ a new firm of Fatman & Co.” was organized, composed of Louis Fatman, Solomon J. Fatman, Morris Ranger and Solomon Ranger; that about 1882 Morris Ranger retired and about 1883 Louis Fatman died, and the firm is now composed of the remaining members; that none of the assets of the original firm of Fatman & Co. ever came into the hands of this firm; that about the year 1877 all of the assets of Joseph Fatman, together with his interest in the assets of the original firm of Fatman & Co., had been collected by the defendant and said Louis Fatman, and paid out upon account of the indebtedness of his said firm; that since 1877 no assets whatever of the said Joseph Fatman have come into his hands nor those of said Louis Fatman, nor have any such assets ever come into the hands of either of said “ subsequent firms of Fat-mail & Co.” and that the plaintiff’s right to demand an accounting accrued upwards of twenty years ago.

The defendant also alleged that in July, 1890, the plaintiff applied to the surrogate for an order directing him to render an account in the estate of said Joseph Fatman and that the application was denied upon the ground that the plaintiff’s right to demand such an accounting had long since expired. The statemente of the defendant as to the alleged result of the proceedings had in the surrogate’s court are denied by the attorney for the plaintiff, who in an affidavit alleges that they were discontinued before any determination was reached therein.

The motion made by the defendant was denied, from which determination he has appealed, and thus there is presented for review the validity of the order in question.

It is insisted by the defendant that the affidavit was wholly insufficient to justify an order for the examination of the defendant. There is no force in this contention. The affidavit upon which the order was made contains, in addition to the matters above stated, the statement that the plaintiff has no knowledge nor any source of information, excepting the testimony of the defendant and the other copartners of said Joseph Fatman, deceased, as to what were the terms, provisions and conditions of the said articles of copartnership, oral or written; nor as to who were copartners of the said Joseph Fatman in the said firm at the time of his death, nor what was the extent of the interest of the said Joseph Fatman in the assets of the said firm; nor what has been the result of the operations of the said firm since the death of the said Joseph Fatman as affecting the latter’s interest in the said assets; nor what changes, if any, have taken place in the membership of the said firm since the death of the said Joseph Fatman; nor in what respect such changes in said firm have affected the said interest of the said Joseph Fatman, deceased, and of his executor and trustee in the assets of said firm; nor what, if anything, is now left of the trust fund created by the said provisions of the said will in the assets of said firm, nor any of the other facts or incidents connected with the administration of his said trust by the said executor and trustee under the said will.

It was further stated that the deposition of the defendant is material and necessary to the plaintiff in the prosecution of this action, and that the plaintiff has no means of ascertaining anything whatsoever concerning the said t rust under the said will, or its administration, or concerning any part of the estate of said testator or its administration, and that this discovery is necessary to enable the plaintiff to discover the names of other defendants and to frame his complaint in this action. From these statements and others as they are contained in the affidavit, the plaintiff is clearly entitled under the authorities to an order for the examination of the defendant, Glenney v. Stedwell, 64 N. Y., 120; Heishon v. Knickerbocker Co., 45 Super., 54; Raymond v. Brooks, 59 How., 383 ; Miller v. Kent, id., 321; Manley v. Bonnell, 11 Abb. N. C., 123; Goldberg v. Roberts, 12 Daly, 339; Burt v. Oneida Com., 21 W. Dig., 342 ; Davis v. Stanford, 37 Hun, 531; Talbot v. Dorin Co., 30 St. Rep. 558; 18 Civ.Pro., 304 ; 9 N. Y.Supp., 478; Carter v. Good, 57 Hun, 116 ; 32 St. Rep., 501, and the plaintiff is entitled thereto, especially in view of the fact that he is a cestui que trust, and entitled to a full and truthful disclosure affecting the corpus of the estate. Carter v. Good, supra.

The second objection to the order is, that the affidavit fails to show that the plaintiff has a cause of action, either legal or equitable. Even assuming for the purposes of the argument that this is so, the general rule does not apply to a case of this character. Garter v. Good, supra. But it is not necessary that the affidavit should state a complete cause of action; it is sufficient if the nature of the action is stated and the substance of the judgment demanded. Frothingham v. Broadway R. R. Co., 9 Civ. Pro., 304, 314, Van Brunt, J.; Vidette v. Dudley, 24 St. Rep., 20; Heishon v. Knickerbocker Co., supra.

The moving papers in the case at bar contain these prerequisites.

The third objection is, that the examination of the defendant is not necessary to enable the plaintiff to frame bis complaint. A question similar to the one now presented by this objection was raised by the first objection, which has been already considered and disposed of, and the answer thereto might suffice for a complete answer to the objection now raised. But in passing upon the precise point involved it is well to consider that while the plaintiff may be entitled to a share of his father’s estate, he is not in a condition in which he can legally state his case entitling himself to any relief of that description. Eor the information requisite for that purpose he is wholly dependent upon the defendant, who, it seems, within three months after the testator’s death and before his inventory was filed, became a member of the firm, which, by the terms of his father’s will, be was directed to continue and preserve, and without the information there is reason to believe that the action could not be placed in the legal form adapted to the relief which the plaintiff is entitled to upon the facts as he may ultimately be able to establish them in the suit. The plaintiff is, therefore, entitled to the order to enable him to prepare a complaint. Davis v. Stanford, supra; Raymond v. Brooks, supra; Tucker v. Mather, supra; Heishon v. Knickerbocker Co., supra.

This brings us to the next objection, that it is doubtful whether the plaintiff could maintain an action for an accounting in this court. If the action related solely to an accounting as to the personalty, doubts might be entertained, in view of the intimations given by the judges who delivered the opinion of the court in the cases cited by the appellant, Hard v. Ashley, 117 N. Y., 606; 28 St. Rep., 601; Chipman v. Montgomery, 63 id., 235, whether, in the face of an objection properly taken thereto, this court could entertain jurisdiction of the action. But by referring to the affidavit of the plaintiff it will be seen that this action is brought “for the purpose of obtaining a judgment establishing and adjudicating the rights of plaintiff in certain real and personal property, being the estate of one Joseph Eatman, deceased.”

The. statements and denials of the defendant contained in his affidavit furnish np reason why he should not be examined at the instance of the plaintiff. Olney v. Hatcliff, 37 Hun, 286; Davis v. Stanford, supra.

Notwithstanding the long period of time that has elapsed since the alleged right of action is claimed to have accrued, the Statute of Limitations is always an affirmative defense, and it cannot be presumed, that the same will be pleaded. Furthermore, the facts to be brought out may themselves show that such statute could not be successfully interposed as a defense.

The scope of the examination of the defendant should not be limited, as the order provides it is to be taken before a judge and not a referee. Burt v. Oneida Co., supra; Hutchinson v. Lawrence, 29 Hun, 450.

The order appealed from should be affirmed, with costs.

Daly, Ch. J., and Bisciioff, J., concur.


author: Pryor, J.

text:
    The Grand Rapids School Furniture Company, Pl’ff, v. Oscar Hammerstein, Def’t.

      (New York Common Pleas, General Term,

      Filed May 2, 1892.)

    Usury—Conflict of laws.
    Notes executed, delivered and payable in this state, given upon a renewal agreement made in this state with the agent of a foreign corporation, are governed by the laws of this state as to the question of usury.
    Motion by plaintiff for leave to appeal to the court of appeals.
    The facts of the case appear in the opinion.

      John Holden, for pl’ff; George W. Gallinger, for def’t.
   Pryor, J.

The action is by payee against maker, to recover interest upon two negotiable notes, the principal of which has been paid. The notes in suit were in renewal of others given by the maker, a resident of Hew York, for goods sold by the defendant, a Michigan corporation. The notes were made and payable in the state of Hew York, and by their terms reserved interest at the rate of seven per cent, per annum. The plaintiff had a local office and agent in the city of Hew York, and the evidence indicates that the goods for which the original notes were given were sold in this state. So, likewise, it appears that the agreement for renewal was made in this state ; and that the notes were delivered in this state.

On this condition of fact the district court held the notes to be void for usury, and its judgment for the defendant having been affirmed by us on the hearing, we are now moved to allow the defendant to take the case to the court of appeals.

The principle is elementary that the validity of a contract depends upon the law of the place of execution and performance. Hence, where a note made and payable here is negotiated in another state, the laws of Hew York are to control as to the defense of usury. Jewell v. Wright, 30 N. Y, 259 ; Dickinson v. Edwards, 77 id., 573, 578 ; Hibernia Nat. Bank v. Lacombe, 84 id., 367.

The defendant alleges, however, that since the notes in suit were given in performance of an agreement of renewal and forbearance, their validity is to be determined by the law of the place of that agreement. Wayne Co. Sav'gs Bk. v. Low, 81 N.Y., 566,572; Western Trans. & C.Co. v.Kilderhouse, 87 id., 430, 439. But the rule relied upon is not inimical to the judgment, because it appears by uncontradicted evidence that the contract of forbearance was made in this state, and that here the plaintiff’s agent procured the renewal note. The ease, then, is this : In pursuance of an agreement in this state, for forbearance of a debt contracted in this state, the defendant executed and delivered in this state notes payable in this state, by which interest was reserved at a rate not allowable by the law of this state. That the validity of the notes is to be determined by the law of this state, and that by that law they are condemned as usurious and void, are propositions so plain and incontrovertible that we should be reprehended did we presume to submit them to the court of appeals for argument and adjudication.

Motion denied, with costs.

Daly, Oh: J., and Bischoff, J., concur.


author: Per Curiam.

text:
    Patrick Malony, Resp’t, v. Edward Brady, App’lt.

      (New York Common Pleas, General Term,

      Filed May 2, 1892.)

    1. Negligence—Liability op contractor to indemnify landlord for RESULTS OF HIS NEGLIGENCE.
    Where the owner of a building is compelled to pay his tenants for damages sustained by them through the negligence of a contractor employed by him to repair the roof, the contractor is bound to indemnify him.
    2. Same—Damages.
    The sum paid to repair the effects of such negligence, unless it is excessive, is the proper measure of damage.
    Appeal from judgment of a district court, on a verdict.
    Action for damages from negligence of defendant in repairing the roof of plaintiff’s building, whereby damage accrued to his tenants. Having paid those damages, plaintiff sues for indemnity from defendant.

      Edward S. Johnston, for app’lt; Matthew Daly, for resp’t.
   Per Curiam.

As the party ultimately answerable for the wrong, defendant is bound to indemnify plaintiff.

Sulzbacher v. Dickie, 6 Daly, 469, is an explicit authority in support of defendant’s liability. Moreover, on a former appeal in this case, we adjudged the defendant liable upon a state of facts substantially identical with that established on the trial under review. Malony v. Brady, 38 St. Rep., 803. In this court, at all events, the question is concluded.

We may add, however, that the defendant’s guaranty afforded another and independent ground of recovery.

The sum paid by plaintiff to repair the effects of defendant’s negligence, unless it were excessive, is the proper measure of the damages for which he was responsible. The cases cited by the appellant are not at all to the contrary.

We perceive no error in the return; and, accordingly, the judgment is affirmed, with costs.

Daly, Oh. J., Bischoff and Pryor, JJ.,' concur.


text:
    Clarence M. Smith, Resp’t, v. The Manhattan Railway Co., App’lt.

      (New York Common Pleas, General Term,

      Filed May 2, 1892.)

    1. Railroad—Liability fob acts of servants.
    A common carrier of passengers assumes an absolute obligation to protect them against the willful as well as the negligent acts of its agents and servants.
    3. Same—Enforcement of rules.
    Such carrier may enforce observance of its regulations by prevention, but not by punishment of a breach already committed.
    3. Same.
    A passenger does not forfeit his right to safe transportation by the mere fact of getting aboard in a manner contrary to a rule of the carrier.
    4. Same.
    If, after such irregular boarding, the passenger leaves the car and again enters it in a proper manner, he has a right to safe conveyance by that train; and an attempt to eject him is an outrage upon him, and for injuries sustained thereby, he may maintain an action against the carrier.
    Appeal from judgment on verdict, and from order denying new trial. Action for injuries to plaintiff’s person inflicted by defendant’s servants in an attempt to eject him from the train. Having paid fare to South Ferry, plaintiff boarded defendant’s train at Chatham Square station by leaping on the rear platform, in violation of a rule of the company; and rode thence to Hanover Square station. There plaintiff stepped out of the car to get his valise, which had been tossed on the platform, and then returned into the train. Thereupon defendant’s servants essayed to eject him from the train, and in the attempt committed the injuries for which he sues.

      Brainerd Talks, for app’lt; Jacob F. MiUer, for resp’t.
   Pryor, J.

By its contract of carriage the defendant assumed as absolute obligation to protect the plaintiff as well against the willful as the negligent acts of its servants. Stewart v. R. R. Co., 90 N. Y., 588; New Jersey Steamboat Co. v. Brockett, 121 U. S., 637; N. O. & N. E. R. R. Co. v. Jopes, 142 id., 18; Croker v. R. R. Co., 36 Wis., 657: Goddard v. R. R. Co., 57 Me., 202; Taylor on Private Corporations, § 347 (second ed.).

But the defendant contends that because the plaintiff boarded the train in a manner forbidden by its rules, its servants were justified in inflicting upon him the injuries of which he complains.

Conceding that the plaintiff entered the car irregularly, the question is, did that fact alone authorize the defendant to eject him?

The rule violated did not interdict access to the car, but only access in a specific mode. The plaintiff had paid his fare ; he had a right to go by that train, he was in a place appropriated to passengers; and at the time of the assault he was in no way misconducting himself. The attempt to put him off was not because he was whore he had no right to be; but solely because he had got in the proper place in an improper manner. The wrong of which he is accused is not in being on the train, but in so getting on the train. He was not in delict after being in the car. Although where he had a perfect right to be, the effort to eject him was made merely because of antecedent misconduct in reaching the place for the privilege of occupying which he had paid his money. His presence on the train being rightful, no matter what the irregularity in getting there, his removal would necessarily have been wrongful.

Undoubtedly the defendant has authority to enforce observance of its regulations; but by preventing, not by punishing, the breach of them. The defendant has no power of retribution, and is incapable of compelling conformity to its rules by the imposition of a penalty. Bat- the ejecting plaintiff for an act already accomplished would have involved a forfeiture of his right to be carried on that train. Only by present, or prospective, and not by past misconduct, does a passenger lose his privileges.

In Steamboat Company v. Brockett, 121 U. S., 637, a passenger voluntarily put himself in a place from which the rules of the company excluded him, and while there was assaulted by the company’s servants: held, that, nevertheless, the company was bound to furnish him safe transportation, and to indemnify him for injuries caused by the improper conduct of its servants.” The adjudication that the wrongful presence of a passenger at a forbidden locality on the vehicle does not forfeit his right to transportation, negatives the proposition that his right to carriage when aboard is lost by a breach of regulation in getting aboard.

Hitherto the argument has proceeded on the postulate that when the attempt was made to eject the plaintiff he was on the train by virtue of an irregular entry. But at Hanover Square he left the train, and then re-entered it without resistance or remonstrance from the defendant. Having originally a right to conveyance by that train, and being now on it by no breach of regulation or other misconduct, the attempt to eject him was an utterly inexcusable outrage, for which the defendant might well have been chastised by a much heavier verdict than that of which, without reason, it complains.

Judgment and order affirmed, with costs.

Bischoff and Giegerich, JJ., concur.


author: Gray, J.

text:
    The People ex rel. Henry Bradley et al., Resp’ts, v. Thomas G. Shaw et al., App’lts.

      (Court of Appeals,

      Filed June 17, 1892.)

    1. Election—Oeficlal ballot—Paster ballot.
    The voter is not limited to voting for candidates receiving a nomination by a political party which at the last election polled one per cent, of the entire vote cast. He may vote for any candidate whom he may choose.
    2. Same—Marked ballot.
    Relators, who were nominated for the several town offices at an inde» pendent meeting or caucus, were obliged to have paster ballots printed at their own expense for use at the polls, and which they pasted upon the official ballots endorsed “town.” All of these paster ballots had printed upon them the name of the candidate for the office of excise commissioner, which, under the ballot law, are to be voted for upon a separate ballot, in a separate box. Meld, that this did not make them marked ballots, and that it was the duty of the inspectors to have counted the ballots for the other candidates named thereon in declaring the result of the election, and they could be compelled to do so by a peremptory writ of mandamus.

    Appeal from order of the supreme court, general term, third department, affirming order for peremptory mandamus directing defendants to reassemble and allow to relators the votes cast for them on certain paster ballots.

      J. W. Houghton, for app’lts; Foley <& Wing, for resp’ts.

       Affirming 45 St. Rep., 533.

   Gray, J.

These appellants composed the board of town canvassers for the town of Minerva, and in proceedings instituted upon the application of these relators a peremptory writ of mandamus issued, requiring them to reassemble and to declare the result of a town meeting, allowing to the several relators the number of votes cast for them as stated in the moving affidavits and called “ paster ballots,” and directing the board to issue a certificate of election to the candidates having the greatest number of ballots cast for them, including such “ paster ballots.”

The first objection, that the relators having failed to receive a proper nomination by a political party which at the last election before the holding of the convention, or primary meeting, polled at least one per centum of the entire vote cast in that political division of the state for which the nomination is made, could not be voted for, is wholly unsound and without force. The plan contained in §§ 2 and 8 of the ba'lot reform act was a provision for the printing of an official ballot at public expense; a feature well designed to secure the desired secrecy and independence of the ballot. But that it was in no wise intended to prevent the voter to vote for any candidate whom he chose, is evident from the further provisions of the law (§ 25) that “ the voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office. ” Indeed, to hold otherwise would be to disfranchise or to disqualify the citizen as a voter or a candidate, and, in my opinion, to affect the law quite unnecessarily with the taint of unconstitutionality in such respects.

The interesting and more important question in the case relates to the effect which the presence upon the paster ballot of the name of the office of excise commissioner, and of the name of the candidate therefor, had upon the ballots cast for the relators. Being upon the ballot officially .endorsed and to be cast for town officers, other than excise commissioners, who, under the ballot law, are to be voted for upon a separate ballot and in a separate box, of course they could not be counted as votes for the candidate for excise commissioner; but it was argued that the effect upon the ballot was to mark, or identify it, and to subject it to the condemnation of the law. The relators, who were nominated for the several town offices at an independent meeting, or caucus, were obliged to have paster ballots printed at their own expense, for use at the polls. All of these paster ballots had printed upon them the name of the candidate for the office of excise commissioner ; and if that was a fact which made the ballot a marked one, within the meaning of the ballot law, then every one of the ballots printed for this independent ticket and for the use of its supporters was vitiated. The effect of this appearance upon the paster ballots, however, was not for consideration in this proceeding otherwise than as to whether it constituted any reason for rejecting them in counting the votes and declaring the result.

The case, upon the affidavits presented, quite warranted the issuance of the writ in question. Aside from the grounds stated in the opposing affidavits for defeating the relators’ application, which concerned the legality of the mode by which the relators were put in nomination, all that was urged against the “ paster ballots ” cast for them was that they were defective, “ in that they contained the name of an office, and a candidate therefor, that was not upon the official ballots and could not be properly on the same ticket with the other town officers, etc.”

That was, in substance, a claim that these paster ballots were illegal and could not be counted. There was no conflict as to the number, or description, of these paster ballots, and each bore the proper official endorsement entitling it to be deposited. The protest, which was filed by the appellants, and which appears in the case, was upon the sole ground that no names for any office should be counted, unless they were such as had received a legal nomination, properly certified to the clerk.

We think that by a proper reading and construction of the ballot law, it was the duty of the inspectors to have counted the ballots in declaring the result of the election and that any objection to them, upon the ground that they were marked ballots within the meaning of the act, could not be determined in this proceeding. The question before the court, upon the application of these relators, was- purely one of law, on a conceded state of facts, and one which it was competent and proper for the court to decide upon the hearing.. It went solely to the right of the relators to have the paster ballots counted and declared by the board of canvassers, in stating the result of the town election. The particular feature objected to in these paster ballots suggested no ground for their rejection under the election law, and there was no other question properly before the court in this proceeding. These ballots should, therefore, have been counted by the board and, because of their rejection, the peremptory writ of mandamus was properly ordered to be issued.

No other questions call for any review by us and the order appealed from should be affirmed, with costs.

All concur, except Finch, J., not voting.


text:
    Charles H. Moore, Rec’r, App’lt, v. J. Edward Simmons, Rec’r of the American Loan & Trust Co., et al., Resp’ts.

      (Court of Appeals,

      Filed June 17, 1892.)

    1. Executors and administrators—Rules as to persons dealing with.
    One who receives from an executor the assets of his testator with knowledge that such disposition of them is a violation of duty, is to he regarded as conniving with the executor and is responsible for the property thus received, either as a purchaser or pledgee
    3. Same.
    The officers of the defendant trust company refused to make a loan to one of several executors upon certain stock belonging to the estate unless the other executors consented thereto, but such consent not being procurable suggested or consented to an arrangement by which such stock was assigned to a legatee and a loan made to such legatee on security of said stock. Held, that the company took said stock at their peril and could only escape the consequences of its act by ascertaining whether there were debts or obligations of the estate and seeing that the money paid was applied thereto.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment dismissing the complaint, entered on the report of a referee.
    Action to determine the rights of the parties to certain shares of stock of the Niagara Falls International Bridge Co., which formerly formed a part of the assets of the estate of Roswell S. Burrows, deceased, and which is held by the American Loan & Trust Co. as collateral for a loan of $25,000 made by it under the following circumstances.
    One Warner, one of the executors of said Burrows, applied to the company for a loan upon said stock, which was refused unless he obtained the consent of his co-executors. The application was then abandoned, and at the suggestion or with the consent of one of the company’s officers, the stock was assigned to Mary Burrows Smith, one of the legatees under the will of Burrows, and the loan was made to her upon the joint note of said Mary Burrows Smith and the executor, and said stock was pledged as collateral security for said loan.

      John Cunneen and B. L. Burrows, for app’lt; David Willcox, for resp’ts.

       Reversing 38 St. Rep., 1003.

   Per Curiam.

Upon the evidence contained in this record, the case is not altered in favor of the defendant from the case presented to this court on the former, appeal, our decision of which is reported in 115 N. Y., 65; 23 St. Rep., 895. We then held that the evidence raised only a question of law, which we decided in favor of the plaintiff.

If the views of this court upon such questions are to be followed, a plain case in favor of the plaintiff was again made out on the new trial before the referee, and judgment in favor of the plaintiff should therefore have been given. Nothwithstanding our former decision, the referee, upon evidence which did not alter the defendant’s case in any aspect to his advantage, dismissed the complaint of the plaintiff, when he ought to have granted judgment in his favor.

For this clear error the judgment should again be reversed, and a new trial ordered, with costs to abide the event.

All concur.


author: Finch, J.

text:
    In the Matter of the Petition of Michael Duffy.

      (Court of Appeals,

      Filed June 17, 1892.)

    Municipal corporations—Assessments—Laws 1858, chap. 338.
    In 1873 petitioner served a petition under Laws 1858, chapter 338, alleging fraud or irregularity in an assessment proceeding, and gave notice that it would be presented to the special term on a day specified, and proofs taken in support of its allegations. On the return day petitioner did not appear, and no motion was made, but in 1890, after payment of the assessment, another notice was served, by which he sought to continue the proceeding. Held, that this was a new and independent proceeding, and at its date there was no special proceeding pending to which the city and petitioner were parties, and as a new proceeding it was begun too late.
    Appeal from judgment of supreme court, general term, first department, reversing order denying motion to dismiss an application for a reduction or vacation of an assessment

      Elliot Sandford, for app’lt; D. J. Dean, for resp’t.
   Finch, J.

The question raised on this appeal was not involved in the case of Matter of Rosenbaum, 119 N. Y., 24; 28 St. Rep., 607. No such point was there argued on behalf of the city, and no suggestion made that the proceeding had not been lawfully initiated within the necessary period. It did appear that proofs had been taken and a hearing upon them had been given by the court and .without objection founded upon the delay. While we observed the existence of that delay, we were not called upon to determine any question affecting the regularity of the practice adopted. We were not made aware of any difficulty in that direction, and decided only the questiohs then brought, to our attention, which related solely to the validity of the assessment. If there was in that case the samé defect which exists in this we were left unconscious of the fact, and it was entirely waived on the part of the city.

But what was then conceded, or at least tacitly assumed on all sides, is now emphatically denied, and the question is for the first time raised whether the petitioner’s proceeding had. any valid existence before 1890, or can be dated back to the original filing of the petition. That paper was drawn and filed in April, 1872, and was served upon the corporation counsel at about that date, with a notice that it would be presented to the court on the 24th of that month. It was not so presented. The motion was not then made, and thereafter, necessarily, no proceeding was in existence. A new motion might be made, but would be a separate and independent application, having no connection with the abortive effort to institute one which earlier occurred. The petitioner’s counsel so understood the situation. He abandoned the earlier motion hy failing to appear, and because he had ascertained that the assessment had not been confirmed, and so his motion, if made, would be premature; and then framed, as is claimed, a new application with a notice for October 24th, which was after the confirmation. It never entered his thought that such new notice would serve only as a continuance of an existing proceeding and so remain open to objection as prematurely commenced, but he clearly regarded, and justly regarded, the earlier attempted proceeding as having no remaining vitality and the new one as altogether separate and independent.

In preparing that new motion he claims to have used the old papers, changing only the improper dates, but no notice was served on the corporation counsel of such new application to be made on October 24th. The appellant’s brief fully admits that fact, and the proof on the part of the city is to the same purport. So far as the moving affidavits allege a re-service after the changed dates, they are founded wholly upon the counsel's statement of entries upon the register of a previous counsel, and are contradicted by what appears upon the register of the corporation counsel, and by the witness who kept it at the time and made the entries. But if there was such re-service it was only a two days notice, which the appellant deliberately concedes was insufficient and invalid, and upon which no action could have been founded. It is apparent, and is substantially conceded, that nobody appeared on October 24th, for nobody could appear for any practical purpose. The city was not brought into court and the petitioner did not come into court, and so the proposed or meditated special proceeding never passed from an imperfect preparation to an accomplished fact, and what occurred simply showed an abandoned intention to commence one. The petitioner was still out of court' and even more clearly so than under his earlier failure, about which he himself could have had no doubt.

In 1873 there is claimed to have been a substitution of a new attorney by an ex jparte order, but that was an idle ceremony, since no proceeding was pending, and could not be until the city was in some due and lawful manner brought before the court.

Thus matters rested until 1890, and why they so rested is obvious. The decision in the Voorhis case involved a denial of the petitioner’s motion if he made one, and so he made none, but paid the assessment, and stayed contentedly out of court and left the city out But after the lapse of about sixteen years he awoke to a consciousness that the courts had modified their position and had reversed or, at least, changed it, and thereupon the present effort was made to reap in some manner the benefit of the change. Notice was given of an application to be made on the 12th of November 1890, for an order vacating the assessment. This was a new and independent proceeding and the first one to which the petitioner and the city were parties which had any existence or vitality as such. The effort to link it to the dead and abandoned preparations of 1872 and to galvanize them into some semblance of life cannot succeed.

When the notice of 1890 was given it is said that proofs had been taken by consent of the corporation counsel without the order or knowledge of the court, but in an informal way and according to custom. There is no adequate proof of such consent, but if there was it would not alter the situation. At that date there was no special proceeding pending to which the city and the petitioner were parties. Of that we have not the least doubt. The proofs taken might so have been taken under a stipulation that they should be used without objection whenever a new application should be made, but such an arrangement could have no force or effect until a special proceeding was actually begun in which the informal proofs might be used by agreement. There was thus no proceeding initiated or existing until the application of 1890, which is the one before us and which the general term dismissed. It was begun too late. Matter of Striker, 23 Hun, 647; Code, §§ 338, 314. It follows that the general term committed no error in their dismissal of the proceeding.

The order should be affirmed, with costs.

All concur.

       Affirming 44 St. Rep., 840.


text:
    Edgar Saltus, Resp’t, v. The Belford Company, App’lt.

      (Court of Appeals,

      Filed June 17, 1892.)

    1. Contract—Breach—Copyright.
    ' Plaintiff entered into a contract with the defendant company hy which the latter was to publish his works and obtain a copyright upon one of them in his name. Defendant became insolvent and unable to pay the royalty agreed upon but continued to publish and sell the works. In an action for an accounting and to abrogate the contract, Held, that no question of copyright was involved, and that an injunction penitente lite was properly granted.
    2. Same.
    Where the defendant stands in the attitude of claiming full performance on its part and of denying the plaintiff’s right to an abrogation of the contract, it cannot also insist that the contract is already abrogated and the parties remitted to those original rights which were independent of it.
    Appeal from order of the supreme court, general term, first department, affirming order continuing injunction pendente lite.

      Frederic R. Kellogg, for app’lt; Augustus S. Hutchins, for resp’t.

       Affirming 45 St. Rep., 819.

   Finch, J.

The principal objection urged against the temporary injunction granted in this action and operative during its pendency is that the papers nowhere disclose the existence of a copyright covering and protecting the plaintiff’s right as author of the books specified in the contract. The drift of the argument is that, in the absence of a copyright, the defendant company was at liberty to publish the books, irrespective of the will of the author, without paying tribute to him, and whether he consented or not, and that the court could not interfere with that right tor take it away by injunction. So much might be true in a case where no contract covering the publication existed. But here the author’s right to control the publication is conceded by the contract itself. Its terms snow an admitted ownership in the plaintiff and a right to give or withhold authority in the defendant company to publish. His consent was bought and agreed to be paid for in the form of a royalty, and as to one of the books, and that apparently deemed to be the most valuable of all, the defendant agreed to procure for the plaintiff a copyright. As to that particular book, it may easily be assumed that the defendant could not publish it without the author’s consent and authority because it existed only in manuscript' and in his possession and could not be obtained without his permission. While it does not appear that the other works were copyrighted, it is not shown that they were not, and it is not necessary to speculate about the fact when the owner’s right is conceded by the contract and the authority to publish is bought of him. For aught that appears they also may have existed only in manuscript when first printed by the defendant, so that their publication could not have been accomplished except with his consent. It does not matter, however, what the source of the author’s control, in fact, was, or how strong or weak might have proved to be his authority and ownership. It is enough that the publisher by the contract made conceded the author’s right, and so published the works with his consent, and was not at liberty during the existence of the contract to publish them otherwise.

If, as a matter of business, the defendant chose to defy the right of the author whatever it might prove to be, the company was bound at least to put an end to the contract, to set itself free from both its protection and its obligation, when so situated that it could not defend the act, if assailed, by pleading the license of the contract and the author’s permission. The complaint against the defendant was that it was publishing under that permission and under the protection of the contract while steadily violating its terms; that it was insolvent and unable to pay, so that every copy sold was a total loss to the author; and the relief asked was that the defendant account and the contract be abrogated. It was entirely proper in that state of facts to restrain any further publication under the permission of the contract pending the litigation, and the question involved is not one of copyright, but simply of contract. A licensee under a patent cannot assail it as void while manufacturing under its protection. He cannot set it at defiance until his license has been surrendered or withdrawn and his act can be treated as an infringement Marston v. Swett, 66 N. Y., 206. In like manner the defendant company cannot question or deny the author’s right while publishing under his license and permission; and we are not at all concerned for the present with either the character or efficacy of that right. I think the injunction, properly construed, restrains only the publication under the contract, for the defendant can publish in no other way until that contract is abrogated; and until he is left free to indulge in a piracy of the author’s work unprotected by' the contract, and where his act may be assailed as an infringement of any right which may turn out to be in the author’s possession, he must remain subject to the restraint which the cburt has imposed. We are not required to consider what ultimate judgment may be awarded to the plaintiff. For the present the court has simply said that the defendant shall not continue to violate the contract while protected by its permission, and when it is unable to pay the compensation which would accrue.

The ground assumed by the defendant is that the plaintiff had rescinded the contract at or before the commencement of the action, and so both parties were remitted to their original rights. The pleadings show a different state of facts. The complaint asks as relief a judicial rescission or termination of the contract which will hind both parties, and makes that demand upon the ground of a violation of its terms; and the answer denies such violation, denies the asserted insolvency, and alleges payment in full of all the royalties which have accrued. And so the defendant stands in the attitude of claiming full performance on its part, and of denying the plaintiff’s right to an abrogation of the contract. While maintaining that position it cannot also insist that the contract is already abrogated and the parties remitted to those original rights which were independent of it. Hyatt v. Ingalls, 124 N. Y., 93; 35 St. Rep., 114, unon which the defendant relies, will illustrate the distinction. Tie injunction stricken out in that case was a part of the final decree which terminated and ended the license. Any future manufacture of the patented article could not be under the license judicially rescinded, and must of necessity be either lawful, or an infringement over which the court could have no jurisdiction. But here the license is not rescinded, and will not be until the final judgment, and may not be then if the defendant’s answer is true; and so the publication pending the litigation would be under the contract, and therefore within the equitable control of the court. In the exercise of its discretion it restrained conduct asserted to he in violation of plaintiff’s rights, and inflicting an injury for which there could be no redress on account of the insolvent condition of the company. We see no reason to question the propriety of the injunction.

The order should he affirmed, with costs.

All concur.


author: Peckham, J.

text:
    James C. Birge, App’lt, v. The Berlin Iron Bridge Co. et al., Resp’ts.

      (Court of Appeals,

      Filed June 17, 1892.)

    1. Towns—Bridges—Power of town to raise money—Laws 1886, chapter 359.
    Chapter 259 of the Laws of 1886 does not authorize a special town meeting to provide for raising by immediate taxation a greater sum than §1,250, and if over $500, the vote must be by ballot.
    3. Same—Laws 1875, chapter 482, as amended byLaws 1885, chapter 451.
    The petition for the call for a special town meeting recited that it was “ pursuant to chapter 259, Laws of 1886.” The call itself was made “by virtue of the statutes of the state of New York in such case made and provided.” Held, that the call was sufficient to authorize the taxpayers to raise the amount, if not more than $1,250, by immediate taxation, or they might-vote at said meeting to apply to the supervisors under chapter 482 of Laws of 1875, as amended, for authority to borrow money for the purpose of erecting or repairing a bridge.

      Appeal from judgment of the supreme court, general term, third department, reversing order made at special term denying motion of defendants to set aside and vacate an injunction granted pendente lite.

      Daniel Magone, for app’lt; Louis Marshall, for resp’ts.

       Reversing 42 St. Rep,, 52.

   Peckham, J.

The special term of the supreme court granted an injunction in this action restraining the defendants from taking any proceedings pursuant to an alleged contract between the defendant Wagner, as sole highway commissioner of the town of Oswegatchie, in St Lawrence county, and the defendant, the Berlin Iron Bridge Company, during the pendency of this action or until the further order of the court.

The defendants appealed to the general term from such order of the special term, and after argument the order was reversed, and in the order it is recited that it is reversed “ on the ground that the plaintiff has not the legal right to maintain this action, and this order is made at this time and in this form for the purpose of allowing an appeal therefrom to the court of appeals.” This action is brought by the plaintiff, as a taxpayer, to enjoin the defendants from further proceeding under an alleged contract between them for the erection of a new bridge within the town above mentioned, on the ground that the contract is wholly illegal as beyond the power or authority of the highway commissioner to make, and as having been entered into fraudulently, and as being, therefore, an illegal waste and misapplication of the funds of the town. The injunction was procured upon the verified complaint of the plaintiff and upon sundry affidavits which, as plaintiff claims, prove the truth of the allegations contained in the complaint. The defendants moved at special term upon affidavits and a verified answer to dissolve the injunction, and upon a denial of the motion they appealed to the general term.

The language used by the general term upon the resettlement of its order makes it plain that the order of the special term, in effect continuing the injunction, was not reversed upon any question of fact. That court has, by the form of its order, held that the case, as presented by the plaintiff, assuming its entire truth, is one upon which he is not entitled to final relief, or, in other words, the plaintiff, upon the facts as he claims them, proves no cause of action against the defendants. In such case a question of law is raised which we can review. Anderson v. Anderson, 112 N. Y., 104; 20 St. Rep., 344.

It is unlike the question raised in Telephone Co. v. Railroad Co.. 121 N. Y., 397; 31 St. Rep., 524, where, under the circumstances therein appearing, wc held the injunction may have been granted under the discretionary power of the court below, and that it did not plainly appear that the plaintiff could not in any event succeed in the action.

In reviewing the order of reversal made by the general term we must take the facts as set forth in the plaintiff’s complaint and accompanying papers, and if they show a good cause of action against the defendants, calling for an injunction, we must reverse the order appealed from and leave the question of fact, if there be any, to be settled by the court upon the trial of 'the action.

The material question lying at the threshold of this investigation relates to the power of the highway commissioner upon the facts set forth in t.he case to enter into any contract with the bridge company. If, upon any view of the facts, he had in this case no power to contract, the order of the general term should be reversed.

A commissioner of highways, by the Revised Statutes, had power to obtain by assessment by the board of supervisors upon his town, for the purpose of improving the roads and bridges of the town, a sum not to exceed $250 in each year. 1 Rev. St., 502, § 4. 1

Then, by chapter 274 of the Laws of 1832, the highway commissioners could apply in open town meeting for a vote authprizing such additional sum as the electors might deem necessary, not exceeding $250.

By § 1 of chap. 615 of the Laws of 1857, a sum of $750 in addition to all other sums then allowed by law was permitted to be raised by a vote of the electors in open town meeting for the improvement of the roads and bridges.

By these acts a sum not to exceed $1,250 might be raised in the taxes for the current year for improving and repairing roads and bridges. The legislature in 1879, by chap. 67, amended the law, chap. 377 of the Laws of 1878, and provided that all moneys raised and collected upon the. taxable property of any town in the state for highway and bridge purposes should be paid over by town collectors to the commissioners of highways. This act had reference by its terms to the moneys that were raised and collected by taxation upon the taxable property of the town, and having been raised and coming into the hands of the town collector, the moneys were to be paid over by him to the highway commissioners. The act had no reference to moneys that might be borrowed under the authority of the supervisors by virtue of other statutes, for such moneys would not come into the hands of the town tax collectors, nor would such funds be regarded as having been immediately raised or collected upon or from the taxable property of the town, although such property would in the end have to bear the burden of paying the moneys borrowed under and by virtue of other statutes providing for such borrowing. The moneys that might be raised for bridge purposes under the above cited three statutes, up to the amount of $1,250, it may be asserted would undoubtedly go to the commissioners of highways. • They were moneys which (all but the first $250) were to be raised upon application of the commissioner, and by a vote at open town meeting, and it was undoubtedly necessary that such moneys when voted to be raised should be assessed upon the taxable property of the town and raised by tax in that year.

The open town meeting spoken of in the statutes has been regarded as the regular town meeting provided for by law. For many years this was the manner, and the only manner, in which moneys for bridge purposes could be raised by immediate taxation, and any sum beyond the total of the three acts already mentioned could only be legally raised by special legislative authority.

In 1869 and again in 1875, acts were passed granting further powers of local legislation to boards of supervisors ch. 855, of the Laws of 1869, and ch. 482 of the Laws of 1875. The latter act has been amended several times. These acts provide among other things for permitting boards of supervisors to authorize towns to borrow money to erect and repair bridges, under regulations and proceedings which are therein specially pointed out. Up to the act of 1869, I believe there was no general statute which permitted a town to borrow money for such purpose.

These statutes of course had nothing to do with the general law relating to the raising money by taxation by vote at open town meeting for the improvement of the roads and bridges within the town. That power and the manner of its exercise remained as it had been, and, as I have said, it was limited in its exercise to a total sum of $1,250.

The Revised Statutes in providing for special town meetings had granted power to such meetings to transact certain business specified in the section. 1 R. S., 341, § 7. And no special town meeting had any power to act on any subject other than such as was specified in the section. Id. It had no power under that section to vote to raise any of the moneys for roads and bridges provided for in the three acts already referred to. Those moneys were to be raised at open town meetings or not at all. In 1886, however, by chap. 259, the section of the Revised Statutes just cited was amended and special town 'meetings were granted power among other things, “to vote on the question of raising and appropriating moneys for the construction and maintenance of any bridge or bridges which said town may be authorized by law to erect or maintain.”

I think it would be dealing very liberally with this language to hold that the whole subject of the amount to "be raised by immediate taxation upon the town taxpayers was by it reposed in a special town meeting called as provided for by statute upon a notice of but five days. Chap. 82, of the Laws of 1885. Up to the passage of this act the subject had been carefully guarded, and not more than $1,250 could be raised by immediate taxation for the improvement of roads or bridges, and all but $250 of even that sum had to be raised by special application of the commissioners at open town meeting and by a vote of a majority of the electors at such meeting. At the general town meetings experience has shown there is a general attendance of the taxpayers and all subjects of interest to them are quite certain to receive the consideration of the great majority of them. And yet up to 1886 it had not been thought expedient to permit even at such a meeting the raising of more than $1,250 by assessment and taxation in that year for the purpose of improving roads or bridges. By permitting a special town meeting, upon five days notice, “ to vote on the question of raising and appropriating moneys for the construction and maintenance of any bridge or bridges,” we do not think the limitation in amount already existing upon ■ the power to raise money at open town meeting was abolished. The purpose of the act of 1886, so far as the question of the raising of the moneys by immediate tax is concerned, is fully answered, as we think, by the grant of the power to vote at a special town meeting those sums to be raised by immediate taxation which before the passage of that act could only have been authorized at an open ” or regular town meeting. These sums when raised must go into the hands of the highway commissioner.

Our attention is called to the case of Wells v. Town of Salina, 119 N. Y, 280; 29 St. Rep., 732, as deciding something contrary to this proposition. We think there is no inconsistency between the two cases. The question here is whether the legislature has granted power to a special town meeting by this language to vote any amount of money to be raised by immediate taxation' which may be agreed upon by a majority of those who may be in attendance and who may be but a small minority of the taxpayers, and when they would have no such power if assembled and voting at “ open ” town meeting. The question in the Town of Salina case was whether it had power to borrow money for the purpose of paying all the prospective expenses of a lawsuit which the town voted to take charge of and prosecute to a final determination. It was held it had no such power; that none such had been expressly granted it by law and none was to be implied from the legislation in regard to the power of towns. What was said as to the policy of the law that town charges should be met by annual recurring taxation must be viewed in the light of the facts of that case. There was, as we decided, no law permitting the borrowing, of money for such a purpose, and there was no limitation upon the amount of the expenditure to be made in the prosecution of the case. It was a leap in the dark, and the payment was postponed indefinitely. In such case it can be very clearly seen that a policy of borrowing money would be a most pernicious one, not to be implied from doubtful language and not to be exercised without a plain grant of power expressed or necessarily implied.

The case of Huggans v. Riley, 125 N. Y., 88; 34 St. Rep., 458, is also referred to by the counsel for the defendants. No question as to the power of a special town meeting to raise money by immediate taxation for road or bridge purposes was therein involved, nor was it spoken of in the opinion of the learned judge, nor decided by the court. The point there arose upon a disagreement between the board of supervisors and the town authorities as to the location of the bridge, during which the highway commissioner located the bridge, and was proceeding to build it when restrained by the action of the plaintiff, who sued as a taxpayer to restrain him from going on. The money had been voted, and the supervisors had authorized the town supervisor to borrow money for the purpose of building the bridge, but they refused to ratify the location as fixed by the town board. We held that upon these facts the highway commissioner had the right to go on and. build the bridge, which he would have done in case the supervisors and the town authorities had agreed upon the location. It was not a question as to which party was to build, the highway commissioner or the board of supervisors, but simply whether the power to build waited and was dependent upon the ratification by the board of supervisors of the location of the bridge as agreed upon by the town authorities. We held under the facts of that case that the act of the commissioner after the supervisors had authorized the borrowing of the money was valid. There is nothing in the decision of that case at war with the principles under discussion in the case at bar.

In this case we are of opinion that the act of 1886, above cited, does not authorize a special town meeting to provide for raising by immediate taxation a greater sum than $1,250, and if over $500, the vote must be by ballot. Chap. 122 of the Laws of 1883, as amended by chap. 82 of the Laws of 1885. There were acts, as I have already stated, by which application might be made to the board of supervisors for authority to borrow money to build or repair bridges. Laws of 1869 and 1875, supra, and chap. 451 of the Laws of 1885.

Section 1 of the last above cited act amends subdivision 6 of chapter 482 of the Laws of 1875, which conferred upon boards of supervisors further powers of local legislation, and such subdivision empowered the board to authorize any town liable to taxation for the erection, etc., of any bridge, to erect and repair the same, and to borrow the money therefor in the manner provided in subdivision 29 of that section. The subdivision contained this further provision: “But no authority shall be exercised under this subdivision, except upon the application of a town liable to be taxed for such purpose, to be made by vote of a majority of the electors thereof voting at a regular town meeting, or at a special town meeting called for the purpose,” etc.

It is said this town meeting in question was not called for the purpose, but was in terms called pursuant to the act of 1886, supra, and hence the vote of the town meeting, even if as claimed by the plaintiff, gave no authority for any application to the supervisors under the act of 1875.

It is true the petition for the call for the special town meeting recited that it was “ pursuant to chapter 259 of the Laws of 1886.” The call itself was made “ by virtue of the statutes of the state of New York in such case made and provided,” and the act of 1886 provides for calling a special meeting for “ voting on the question of raising and appropriating moneys,” etc.

Upon these facts does it follow that the town meeting thus specially called could not act under the law of 1875, as amended by the act of 1885, already cited ? I think not.

The act of 1885 (Ch. 451) provides for authorizing a town liable to taxation for the erection of a bridge to erect it, and for that purpose to borrow money. The condition is that the supervisors shall not grant any such authority except upon application of a town liable to be taxed for such purpose, to be made by vote of a majority of the electors thereof voting at a regular town meeting or at a special one called for the purpose. For what purpose ? I think it means a special town meeting called for the purpose of considering the question of the erection, care, repair or maintenance of a bridge. That is the important purpose which the statute meant the special town meeting should be called for.

It was to be one which had convened for the purpose of taking that question into consideration, and when thus convened, if it decided to ask the authority of the supervisors to borrow money and pay it in accordance with subdivision 29 of the act of 1885, it could do so. It is not called for by the language and there is no real benefit to be achieved in holding that the town meeting must not only be called for the purpose of deciding upon the question of erecting or repairing the bridge, but also for the further purpose of borrowing the money. The authority is not to be exercised by the supervisors “except upon application of a town liable to be taxed for such purpose.” The expression “ liable to be taxed for such purpose ” means a liability to be taxed for the purpose of erecting, repairing or maintaining a bridge and not a liability to be subsequently taxed to pay the money borrowed to erect, etc., the bridge. If the purpose for which the town is liable to be taxed means the erection, repair, etc., of the bridge, then it would seem to follow that “ the purpose ” of the call of the special town meeting must be of the same nature, that is, the purpose of erecting, repairing or maintaining the bridge. In this view the call is sufficient which indicates such a purpose, although the petition for it may state it is pursuant to the provisions of the act of 1886. Having come together under the authority of that act to vote upon the question of raising and appropriating moneys for the construction and maintenance of bridges, if the sum be not more than $1,250, the taxpayers may conclude to raise it all (if none have been already raised) by resort to immediate taxation. In coming together under the provisions of the act of 1886, at a special meeting, the taxpayers have, in substance, come together under a call for the purpose of considering the question of the erection, etc., of the bridge. If they do not determine to raise the sum not exceeding the limitation of $1,250 by resort to immediate taxation, they may determine to ask the authority of the supervisors to borrow the money. So long as the special meeting was called for the purpose of considering the question of the erection, etc., of the bridge, or, what is the same thing, of considering the question of raising and appropriating the moneys for the construction and maintenance of the bridge, we think it had power to apply under the act of 1875, as amended, for authority to borrow money.

It is urged, however, that we have decided in the Town of Salina case, sup?'a, that the provision for “ raising money ” in a statute means raising it by taxation at once, and not by the means of borrowing the same to be repaid at some future time. That is true in the limited sense in which it was applied in the Salina case. We were asked in that case to imply a power to borrow money from the grant of power to raise it. Considering the purpose of the grant and its terms, and looking at the context we became convinced that it was never the legislative intent that towns should have the power to borrow money for the particular purpose for which they were given power to raise it in that case. We thought the expression used in the statute plainly meant to give power to raise money by current taxation only and not by borrowing. Several other statutes were cited of a similar character, which as we thought indicated the same intention, viz : a power to raise money by taxation, but not by borrowing. Here is a case, however, where the legislature has provided by a general statute a means, by pursuing which a town can borrow money for the purpose of erecting, etc., a bridge within its boundaries. And the question now is whether a town which has the power to borrow money upon pursuing the plan pointed out by the statute, shall be precluded from doing so because, in the call for the town meeting which was to vote on the question, it was stated that it was called pursuant to the statutes of the state for the purpose of raising and appropriating the necessary money to maintain the bridge, etc.

If it were sought to obtain the power to borrow money from the use of the expressions in the statute giving power to vote on the question of raising and appropriating money for building the bridge, the case of The Town of Salina, supra, would be a good authority against any such implication. Where the power to borrow money exists by virtue of a statute specially granting it on certain conditions, we think the expression stating that the meeting is called to vote upon the question of raising and appropriating the money is a sufficient compliance with the act of 1885, which imposes a condition that the special town meeting shall be called for the purpose of considering the question of the erection, etc., of the bridge, as already stated.

If the plaintiff’s allegations as to the facts are borne out by the proof upon the trial, there would seem to be no doubt of the fact that the written resolution offered by Mr. Magone, requesting the supervisors to authorize the town to borrow money, was voted upon by ballot, and adopted at the special town meeting. The defendants at any rate had no power to enter into the contract which they have attempted to make. Arriving at this conclusion it follows that the order of the general term should be reversed.

Upon the other allegations of the complaint, and those contained in the moving papers, and assuming their truth, we are by no means clear-that a fraudulent conspiracy was not made out between these defendants. The fact that a better bridge has been contracted for, for $8,600 less money than the total expenditure called for by defendant’s contract of $9,200, is a most significant one.

Another is that the only resolution voted for at the town meeting was one providing for the borrowing of the money by authority of the supervisors and its expenditure by a commission named in the resolution. Notwithstanding such resolution and soon after its adoption at the special town meeting, the parties defendants make this contract for the construction of the bridge for $9,200; but the highway commissioner refuses to produce it or to state its contents when inquired of by reputable citizens, unless they procure the consent of the bridge company. He continues such refusal up to the time when criminal proceedings were instituted , against him.

The contract also provides for the payment of one-half of the contract price for the bridge when a very small amount of work has been done and less than a thousand dollars worth of material has been furnished.

The submission of a false statement of the facts to the supreme court for its adjudication is another important fact. There are others which I do not stop to mention. Many and perhaps all of these allegations are met by a full denial on the part of the defendants, and hence it would become a subject for investigation by a trial court if it became necessary.

We are not to be regarded as holding that no cause of action for a fraud was stated or proved in the complaint and accompanying papers, assuming the truth of their allegations.

We express no opinion as to their truth or falsity.

The facts as submitted to the supreme court in the former litigation are certainly very different from those set forth in the moving papers here.

Our conclusion is that the order of the general term must be reversed, and the special term order affirmed, with costs in all courts.

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


text:
    Henry Wronkow, App’lt, v. Hobart Oakley, Deft. In the Matter of the Petition of Charles Wolff, Resp’t.

      (Court of Appeals,

      Filed June 17, 1892.)

    1. Married women—Power oe attorney.
    A married woman has the right to execute a power oí attorney to sell lands, and in executing such right she can appoint her husband her agent or attorney in fact.
    2. Same.
    The title to premises sold at a judicial sale came through one B., who executed a deed thereof for himself and also for his wife as her attorney in fact under a power of attorney. The power of attorney authorized him to contract for the sale of and to grant, bargain, sell and convey all or any lands, etc., to her belonging, “ whether belonging to me individually or jointly with another or others,” and “ for the purpose aforesaid, and in my name, place and stead, as my act and deed, to sign, seáis execute and acknowledge and deliver all necessary or proper contracts, deeds, conveyances, releases, releases of dower and thirds and right of dower and thirds, or other instruments for the conveying, surrendering and relinquishing all or any part of my estate, right, title and interest, whether vested or contingent, clioate or inchoate therein.” Held, that such power was not limited to the signing of conveyances of the wife’s land, but authorized the husband to release her inchoate right of dower in lands belonging to him.
    3. Foreclosure —Parties.
    Prior to acquiring title to the property in question, a judgment was recovered against a former owner. Appeal was taken therefrom and the judgment marked “ lien suspended on appeal.” The sureties on the appeal to the court of appeals, upon affirmance, took assignment of the judgment. These sureties had consented to the order suspending the lien, including after acquired property. Held, that neither the judgment creditor nor either of the sureties were necessary parties to the foreclosure action.
    Appeal from order of the supreme court, general term, first department, reversing order denying motion to release purchaser at judicial sale.

      Henry A. Forster, for app’lt; Richard L. iSweezy, for resp’t.

       Reversing 45 St. Rep., 835.

   Peckham, J.

In relation to the questions arising upon this application of the purchaser Wolff, to be relieved from his bid at the judicial sale on the ground that the interest of the wife of Bauer had not been duly conveyed by virtue of her power of attorney to her husband, we are of the opinion that the order of the general term is erroneous, and for the reasons stated in the dissenting opinion of Mr. Justice Andrews at the general term.

The limitation sought to be imposed upon such power of attorney, that it only authorized Mrs. Bauer’s husband to sign his name to conveyances of lands belonging to her, is not, we think, sustained by the language of the instrument. Indeed the learned judge who so held in his opinion at the general term, in order to arrive at his conclusion rejects as surplusage the language of the power which authorizes the husband to convey for her and in her name, and as her act and deed, to sign, seal, execute, acknowledge and deliver all necessary releases of dower and thirds. He construes the language used in the first part of the power as confining its application to the execution of a conveyance of any and all lands belonging to Mrs. Bauer, and hp says the words “ releases of dower” subsequently used have no relation to the power actually granted, and hence are surplusage.

We think, however, that the language as to “ releases of dower” was used for the very purpose of authorizing the husband to do as he has done, and that the language of the first part of the power, when speaking of lands, etc., belonging to the wife, does not limit, and was not intended to limit, the operation of the words “ releases of dower and thirds ” so as to make them of no meaning or importance, but on the contrary it was intended by their use to confer authority on the husband to release her inchoate right of dower in lands belonging to him. Indeed she continues the statement of her purpose by inserting in the instrument a power to execute other instruments for the conveyance, surrendering and relinquishing all or any part of her estate, right, title and interest, whether vested or contingent, clioate or inchoate therein. The language used in the first part of the power should not be held to operate all through it and limit the otherwise plain meaning of the paper.

We think there is no objection to the title arising out of the power of attorney given by the wife to the husband. She had the right to execute a- power of attorney under the act, chapter 300 of the Laws of 1878, and in executing such power she could appoint her husband her agent or attorney in fact.

' As to the objection that certain creditors by judgment against Bauer were not made parties, nor the sureties on certain appeal bonds, we think a sufficient answer is made by the fact of the entry of the memorandum by virtue of § 1256 of the Code of Civil Procedure, “lien suspended on appeal.” We think the meaning and purpose of the legislature in the enactment of that and the succeeding sections were to release the lien of the judgment so suspended on appeal in regard to all property upon which it otherwise would become a lien until the court orders that it be restored by a re-docket. The sureties upon the first appeal to the general term consented to the entry of the order, which did not in terms provide as to subsequently acquired property, but if we are right in our construction of the statute, it was not necessary to so state it in the order. The law itself provided for the fact. The sureties upon a further appeal taken to the court of appeals consented in terms to the order suspending the lien, including after acquired property. "Upon the affirmance of the judgment by the latter court the sureties on the last appeal bond took an assignment of the judgments, and in their hands there was no longer any liability on the sureties on the first appeal. Such sureties became, on the giving of the second undertaking to pay the judgments, sureties for the second sureties, and when the second sureties paid or discharged their obligation to the owner of such judgments and took an assignment of them, they could not enforce them against the first sureties. Under these circumstances there is no reason on this ground for releasing the purchaser from his bid.

The respondent here does not insist upon an objection that these questions were doubtful, and a purchaser ought not to be required to take such a title, but as we understand, if the questions above discussed should be decided in favor of the title, lie is willing to take it, although those who are not parties here would not be legally barred by our decision from hereafter raising the question. As our decision depends upon the construction of statutes, the rule of stare decisis would be effectual as an answer to any further claim, and we think the purchaser entirely justified, in his waiver.

Our conclusion is that the order of the general term should be reversed, and that of the special term affirmed, with costs in all courts.

All concur.


author: Andrews, J. Van Brunt, P. J.

text:
    In the Matter of Opening Lexington Avenue. In re Johet Schreyer.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    Eminent domain—Street opening—Opening of pbooeeding.
    Where proceedings have been pending for six years, and the report of the commissioners has been confirmed and assessments thereunder levied, and no sufficient excuse is shown for the failure of a property owner to file objections in time, the court is justified in refusing to grant his application to vacate the order for the purpose of a rehearing, both on the ground of loches and because the court should not disturb the rights supposed to have been fixed by such order without notice to all parties who have been assessed.

      Appeal from order of the special term denying motion made on behalf of the appellant to set aside the report of the commissioners of estimate and assessment, or that the report be re-committed to said commissioners for amendment, so as to include an award for compensation for land belonging to the appellant, and taken for the avenue.
    The following is the opinion at special term:
   Andrews, J.

All the grounds upon which it is claimed that this proceeding is irregular and void have been presented to the court in support of various applications heretofore made herein, and have been decided to be untenable. I concur in such decisions ; and, as the judges who have passed upon such applications have filed opinions, giving their reasons for the decisions made by them, I do not see that it would subserve any useful purpose if I were to repeat or add to the reasons so given in another opinion. So far as those grounds are concerned, therefore, this application should be denied. I am also of the opinion that the application cannot be sustained upon the ground that the commissioners failed to make a proper award to John Schreyer, for the following reasons : First. This proceeding has been pending for some years, and no sufficient excuse is presented by Schreyer for his failure to file objections within the time fixed by statute. Secondly. After the expiration of such time, Schreyer applied to this court for an order requiring the commissioners to receive his objections, and such application was denied, and no appeal was taken by him from the order thereupon entered. It would be an extraordinary and inconsistent exercise of power if the court, after refusing that application, should now vacate the order confirming the report of the commissioners, and, at this late day, require them to receive and consider Schreyer’s objection. If the decision upon such former application was correct, it is decisive against the present one; if it was not correct, an appeal should have been taken from the order entered thereon. Thirdly. I do not think that an application of this character can be made on notice to the corporation counsel only. The rights of the property owners who have been assessed for the improvement have become fixed by the order of this court confirming the report of the commissioners. If this application should be granted, and a large award should be made to Schreyer, the assessments would necessarily have to be materially increased. This is, in. effect, an ex joarte application to vacate a judgment which limits the liability of the persons who have been assessed. It is not authorized by any statute, and I do not see how it can be entertained, unless all such persons have notice of the application. Fourthly. One Houghton, whose property was similarly situated to that of the plaintiff, filed objection in time, was represented by counsel, submitted evidence, and received a. nominal award only. Moreover, Houghton’s objections to such nominal awards were urged upon the court when the report of the commissioners was presented for confirmation, but such objections were overruled, and the report confirmed. Of course, Schreyer, if given a further opportunity, might make a different, and perhaps a better, case before the commissioners than Houghton did; but this application is addressed to the sound discretion of the court, and, when the court is asked to reopen a proceeding which has been pending for six years, and to thus further delay a public improvement, the fact that Houghton has litigated the identical question which Schreyer desires to litigate, and, so far at least, has been defeated, is entitled to some consideration. Moreover, an appeal was taken from the order confirming the commissioners’ report, which has not yet been argued. As I understand the matter, the attorney who represents Schreyer in this proceeding controls that appeal; and, at all events, the special term of the court ought not to interfere with the order of confirmation until the appeal from that order has been heard and decided, so that the judge holding special term may have the benefit of knowing what the views of the general term are upon the case presented by Houghton. Motion in all respects denied, with ten dollars costs.

J. A. Deering, for app’lt; Carroll Berry, for resp’t.

Van Brunt, P. J.

All the questions raised upon this appeal arising from the denial of the motion to set aside the report of the commissioners of estimate and assessment have been considered in cases decided herewith; and so far as the appeal brings up the question as to the propriety of the denial of the motion for an order directing the commissioners to take testimony in respect to the claim of the appellant for compensation for his land taken for said avenue, we concur in the conclusion arrived at by the lea'rned judge below for the reasons stated in his opinion.

We think that it is entirely clear that the motion should have been denied both upon the ground of loches and upon the ground that the court should not disturb the rights which were supposed to be fixed by the order of the court confirming the report of the commissioners without notice to all the parties interested.

The order should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.