author: Follett, J.

text:
    The People ex rel. Thomas C. O'Sullivan, Resp't, v. The New York Law School et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Mandamus—Opposing affidavits.
    Upon, motion for a peremptory mandamus, if opposing affidavits are read which conflict with the moving affidavits, the right to the writ must be determined upon the assumption that the averments of the opposing affidavits are true.

      8. Same—Colleges—Degrees.
    Where a student,after passing a satisfactory examination and before graduation, is guilty of contumacious conduct, it rests in the discretion of the faculty whether to recommend him for, or to refuse him his degree, and the exercise of , such discretion should not be reversed by the court except in an extraordinary case.

      3. Same—Certificate.
    In such case, however, the student is entitled to a certificate of attendance and that he passed a satisfactory examination.
    Appeal from order granting writ of peremptory mandamus.

    On the 11th of June, 1891, the New York Law School was incorporated by the University of the state of New York, by charter No. 658, which contained the following provision: “ This charter shall have no power to grant degrees, but the regents will confer the degree of bachelor of laws on the graduates who have been certified by the New York Law School as having completed its full course, and as being duly qualified in all other respects, and who have passed all examinations and met all other requirements prescribed by law or by the university ordinances.” By chapter 378 of the Laws of 1892, individuals, associations and corporations not authorized by some statute of the state or by the regents are prohibited from conferring degrees. By the rules and practice of the regents, the degree of bachelor of laws is conferred only on candidates who meet the following requirements: (1) Those who have passed the required law-student examination as to preliminary general education at a standing of not less than seventy-five per cent; (2) those who have passed the regents’ examinations in law at a standing of not less than seventy-five per cent; (3) those who have been certified in writing by the dean, or an officer legally authorized to grant such certificate on behalf of the school, as having completed to the satisfaction of the faculty the full course of the said law school; (4) those who have a similar certificate from the law school that the candidate is duly qualified in all other respects to receive said degree. Whether the candidate possesses the first and second requirements is decided by the regents through their own examination, but whether he possesses the third and fourth is determined by the faculty of the law school, the regents accepting their certificate as final.
    In 1892 the board of regents appointed a person to examine the graduating class of the law school, and in May of that year the relator was examined by him, and was found to have a sufficient general education and knowledge of the law to entitle him to the degree, which was reported by the examiner to the regents and to the dean of the law school. It is the practice of the regents to make out diplomas for all students who have passed their examinations, and forward them before the day fixed for graduation to the dean of the school, who, by countersigning them, certifies that the candidates possess the third and fourth qualifications. On the day appointed for the graduation of the candidates, one of the regents confers the degrees and delivers the diplomas. On the day fixed for the graduation of the senior class of 1891 and 1892, the degree of bachelor of laws was not conferred upon the relator, nor was a diploma delivered to him, because the dean of the school refused to certify that he was qualified in all other respects to secure the degree.

      Albert B. Boardman, for app'lts; Franklin Bartlett, for resp't.
   Follett, J.

A peremptory writ of mandamus can only be granted, in the first instance, in case the applicant’s right thereto depends only upon questions of law. Code Civ. Pro., § 2070. Upon a motion for a peremptory mandamus, if opposing affidavits are read which conflict with the moving affidavits, the right to the writ must be determined upon the assumption that 'the averments of the opposing affidavits are true. If the relator desires to controvert or avoid the statements made in the opposing affidavits, he should take an alternative writ, so that the questions of fact can be tried. People v. Cromwell, 102 N. Y., 477; 2 St. Rep., 427; People v. Brown, 55 N. Y., 180. Under this rule, the statements of the answering affidavits, in so far as they conflict with those served in behalf of the relator, must be regarded as true. Preceding the commencement exercises of June, 1892, a committee was appointed, upon the suggestion of the dean of the i( school, by the members of the graduating class, to make arrangements for the commencement, secure a hall and engage a speaker. A question arose in the committee as to whether religious exercises should be had at the commencement. The committee, by a majority vote, after much contention, decided to invite a clergyman of one denomination to offer the opening prayer, and a clergyman of another sect to pronounce the benediction. On the 2d of June the dean stated to the committee that their action was unwise, and that it would make an unfortunate precedent where so many religious faiths were represented, would tend to breed discussion in the future, and that he would advise, in view of the situation, that they have no religious exercises, which suggestion was adopted by a vote of the committee. On the morning of June 3d the dean was advised by a telegram that the degrees would be conferred by Bishop Doane, one of the regents. Because a church dignitary was to confer the degrees, the faculty of the school determined that he should be asked to conduct appropriate religious exercises, which determination was immediately communicated to the class committee. On the same day the relator and eight or ten others remonstrated against the action of the faculty, and 1V1 r. O’Sullivan charged the dean with underhanded conduct, and the students then present threatened not to attend the commencement exercises unless the action of the faculty was reversed. On the morning of June 4tli, Mr. O’Sullivan had an interview with the dean, which is described by him in his answering affidavits, but need not here be repeated, for it is sufficient to say that it discloses conduct on the part of the relator justifying the refusal of the faculty to recommend him as a student upon whom a degree should be conferred.

The relator, by taking a peremptory writ, has admitted the truth of the answering allegations, and the sole question is whether the conduct described justified the dean in refusing his certificate to the relator. Assuming that the relator’s conduct is correctly stated by the dean, as we must, it was, to say the least, contumacious, and calculated to breed disorder and trouble in the school. That there should be some power vested in the faculties of schools and colleges to repress and punish such conduct will be conceded by all. It cannot be that a student having passed all examinations necessary for a degree can, before bis graduation, excite disturbance and threaten injury to the school or college without being amenable to some punishment. No course would seem open except to forthwith expel him or refuse his degree. In this case the latter course was taken. The faculties of educational institutions having power to confer degrees, and the teachers of schools having the right to recommend to the regents of the university students deemed to be worthy of degrees, are necessarily vested with a broad discretion as to the persons who shall receive those honors, or be recommended for such distinctions; and when the conduct of a student has been such, intermediate his final examination and the time of conferring degrees, that there is a fair occasion for the exercise of discretion on the part of the faculty, as there clearly was in this case, it should not be reversed by this court, and the case must be an extraordinary one to justify judicial interference. Any other rule would be subversive of all discipline in the schools and of the educational interests of the state. To hold that dissatisfied students in the colleges and schools of this state can review the discretion of faculties in cases where the facts justify the exercise of discretion would be most unwise. We see no reason why the right to discipline is not as great between the final examination and the graduation as before; and if we can control the action of the faculty in this case, why may we not be called upon to supervise it in the case of expulsion or suspension of students during their college course ? Notwithstanding the right of 'the school to refuse to recommend the relator as worthy of a degree, he is entitled to a certificate of attendance, and that he passed a satisfactory examination. The order of the special term is reversed, and the peremptory writ of mandamus is dismissed, with twenty dollars costs and disbursements against the relator.

Van Brunt, P. J., and O’Brien, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    William S. O'Brien et al., Ex'rs, Resp'ts, v. Peter R. Weiler, Ex'r, Impl'd, App'lt.

      (Supreme Court, General Term. First Department,

      Filed March 17, 1893.)

    1. Witness—Competency—Transactions with decedent.
    In an action to recover a de‘)t clue an estate, a legatee who took a life interest m the estate, but has released all her interest in the moneys involved m the action, though not her interest in the rest of the estate, is competent to testify. r
    8. Same—Attorneys.
    The fact that an attorney was employed by a testator to draw certain papers does not make his declarations in respect to testator’s property admissible in evidence against testator’s estate.

      3. Guardians—Deposit—Settlement with ward.
    A guardian deposited money in a savings’ Lank to his credit as guardian. Thereafter he purchased certain bonds for a price greater than the deposit, and delivered them, to his ward with a statement that they were purchased with the proceeds of the deposit, and so accepted by the ward. The deposit remained in the hank until the guardian’s death. Held, that the money so deposited belonged to the guardian's estate.
    Appeal from an order bringing in additional parties to the action, and the findings of the court of law that the plaintiffs wei-e entitled to the moneys so on deposit with the Citizens’ Savings Bank as belonging to the estate of Peter T. O’Brien, and should be paid over to them upon the surrender of the plaintiffs’ book containing the account.
    The following is the opinion at special term:
    Ingraham, J. “It appears in this case that Peter T. O’Brien, the plaintiffs’ testator, opened an account on January 3, 1871, in the Citizens’ Bank, by depositing $2,500. The account was opened in the name of Peter T. O’Brien as guardian for Elizabeth O’Brien, which appears to have been subsequently changed to the full name of his daughter, who was the beneficiary, viz.: Sarah E. O’Brien. Under the authorities in this state such a deposit was, undoubtedly, a declaration of trust, whereby Peter T. O’Brien became trustee for his daughter for the sum deposited, and such a deposit was a valid gift, which vested the title in himself as such guardian or trustee; and upon his death, or upon his daughter’s arriving at the age of twenty-one, she would be entitled to the money so deposited, and all subsequent deposits in the same account, whether interest or new deposits, also vested in plaintiffs’ testator as the guardian or trustee for his daughter, and became her property. This principle is firmly established in this state, and it is not necessary to cite authorities to sustain it. The sole question in this case is whether or not the plaintiffs’ testator accounted to his daughter for the amount that he held as her guardian or trustee. A consideration of the testimony, I think, establishes that the plaintiff has made out, by a preponderance of evidence, that there was such an accounting, and an investment of the amount so deposited, and which was on deposit in the bank, in the Second Avenue Railroad Company bonds, and that they were delivered to his daughter. It appears that in January, 1881, plaintiffs’ testator purchased three $1,000 Second Avenue Railroad bonds, for which he paid over $3,200, and that said bonds were delivered to his daughter with a statement that they were the proceeds of the money in the savings bank.
    That fact is proved by the testimony of the plaintiffs’ testator’s widow, and so far as she testified to conversations between her husband and her daughter, in which the witness took no part, I think that the testimony is competent. Her testimony proves that it was the sum of money deposited in the savings bank that plaintiffs’ testator had assumed to invest in the bonds, and that the bonds were delivered to and accepted by his daughter. By the deposit of the money in the savings bank plaintiffs’ testator never surrendered control over the money. It was in his possession as guardian or trustee for his daughter, and as such guardian or trustee he retained the evidence of the indebtedness of the savings bank for the money. That that. act was not inconsistent with the intention to give the money to the daughter is well settled, but on its appearing that that money still in his possession and under his control had been invested by him in securities that had been delivered to the beneficiary as all the money in the savings bank to her credit, and she accepted them as such, his obligation to her was at an end, and the money, although standing in his-name as trustee or guardian, was his own. There was-a question reserved as to some declarations of the daughter made to the plaintiff’s testator’s widow. On consideration, I have come to the conclusion that the widow is not competent to testify as to such declarations as were made indirectly to him as against the defendant who is the daughter’s administrator, and consequently must be stricken out. I think, therefore, plaintiff is entitled to judgment, but under the circumstances, without costs.

      John D. Townsend, for app'lt; James F. Malcolm (Abram Kling, of counsel), for resp't.
   Van Brunt, P. J.

We might very well rest our decision in the affirmance of the judgment in this case upon the opinion of the court below, but as certain exceptions to the admission of evidence have been taken, it will be necessary to notice these in the disposition of this appeal. It is claimed that it was error to permit the widow of the testator to testify to conversations between her husband and the deceased daughter regarding the ownership of the property which is the subject of this action, it being claimed that under § 829 of the Code of Civil Procedure she was excluded from testifying. The widow was entitled, under the will of her husband, to the income of his estate, real and personal, during Iier life, and at her death her associate plaintiff succeeds to her interest.

It appeared, however, upon the trial that the witness, for the purpose of becoming such witness, had executed a release, whereby she released and discharged the estate of and from all interest or claim she might have to the moneys involved in this action, or the income thereof; and upon the introduction of such release the testimony of the witness was received. It is claimed that because the witness did not release all her interest in the estate, or which she might acquire under the will, therefore, she was not competent. It is undoubtedly true that a legatee or devisee under a will is incompetent to testify to personal transactions or communications with the deceased, preceding, attending or succeeding the execution of the will, in support of which proposition various authorities may be cited. But it is equally true that a party may become competent by releasing his interest in the subject-matter involved, and, therefore, when the witness released and discharged the estate of and from all interest or claim she might have in and to the moneys involved in this action she was no longer a party or person interested in the event of the action, and consequently did not come within the prohibition of § 829. All the cases cited by the learned counsel for the appellant in support of the claim that there must be a release of all interest under the will in order to enable a legatee or person interested in the will to become a competent witness as to personal transactions or communi-' cations between the witness and the testator, were those relating to the validity of the will itself, and consequently, without such a general release, interest still remained. Those cases, therefore, are entirely different from one in which it is simply sought to collect a debt due to the estate; and, as already observed, where the legatee under the will releases all his interest in or claim to such debt, or any income derivable therefrom, it is apparent that all interest in the event of the litigation has ceased, and the witness has become competent. The mere fact that such release swells the interest of other legatees does not in any way continue the interest of the witness who has released the same.

The claim that there was no evidence to sustain the finding of the court below to the effect that the testator advanced out of his own money the sum invested for the use of his daughter in the purchase of the Second Avenue Eailroad bonds, and that his daughter received the same as the equivalent of her money deposited in the bank, is certainly not well taken. The evidence of the widow was clearly to the effect that the daughter accepted the bonds purchased by her husband in lieu of the money deposited in the bank; and, even if the books of the bank showed that no money had been taken from the bank at the time, but that the interest continued to accumulate until the death of the testator, it was a substitution of the bonds for the money by and with the consent of the beneficiary.

The claim that it was error to permit the widow, and the mother of the deceased daughter, to testify to conversations she claimed to have had with her, not in the presence of the testator, in regard to the property which is the subject of this action, does not seem to have'any foundation. It is claimed that the release given and put in evidence was not applicable to the daughter, and, therefore, did not make her a competent witness. The question was not whether it was applicable to the daughter or not. The point was that by the giving of the release the widow had ceased to be interested in the event of the litigation, and, therefore, she was just as competent a witness as though she never had had any interest whatever in this particular money under the will of her husband.

The claim as to the right of proving the custom of the bank when they struck out the name of a party in a pass book was entirely immaterial. The witness was asked as to the facts, and he testified that the striking out of the name in the pass book he did not think had been done at the bank, and the defendant had the benefit of this evidence, and it seems to us that that was going as far as the rules of evidence could possibly justify. What this bank was accustomed to do under these particular circumstances clearly could not be evidence as against the deceased.

The only other objection was to the exclusion of certain evidence as to declarations made by an attorney who drew certain papers for the deceased shortly after the execution of those papers. It is true that in the question the witness was asked whether he did not have such conversation with the attorney as the representative of the deceased, and when the witness said that he did have such conversation he was asked what it was. This was objected to, and the objection sustained. But it is clear that an attorney who was employed by the testator to draw papers was not also employed by him for the purpose of making declarations in respect to his property. If it was claimed upon the part of the defendant that such declarations were competent, it certainly was their duty to first establish by evidence the fact that the attorney was authorized to make such declarations on behalf of his client before the court would be justified in entertaining for a moment the admission of such testimony.

Upon the whole case we are of opinion that no errors were committed, and that the judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


text:
    Henry Eugene Alexander, App'lt, v. Joseph A. Donohoe et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Res adjudicata—Action by stockholder.
    In an action to set aside an alleged fraudulent conveyance it appeared that plaintiff’s interest was simply that of a stockholder in a California corporation, and that an action in which the corporation was a party had been brought in California, and by the pleadings practically the same allegations had been made against the validity of ihe conveyance. Held, that the judgment in the California action barred the plaintiff’s recovery, as he had no independent right of action.
    Appeal from a judgment entered upon the decision of the court dismissing the plaintiff’s complaint, on the merits, before any testimony had been offered on his part.

      E. C. Perkins, for app'lt; Martin & Smith (F. R. Coudert, of counsel), for resp'ts.
   Van Brunt, P. J.

It will be impossible within the reasonable limits of an opinion to rehearse all the evidence, conclusions of fact and conclusions of law set out in the 154 pages of the complaint herein. A dismissal of such complaint having been had before, the taking of testimony, the only question presented is, whether, upon all the allegations contained in the complaint, the plaintiff shows any right of recovery. Upon the trial the plaintiff, having desired to amend his complaint, as a condition of such amendment was obliged to and did include therein a judgment roll in an action in the courts of California, and it appears to have been held by the court below that this judgment was a bar to the plaintiff’s recovery. It will be necessary, therefore, only to advert to so much of this voluminous complaint as will serve to illustrate the position of the plaintiff in respect to the defendants in the action in California, in order that it may be determined whether or not the ruling in the court below should be upheld. The plaintiff herein brings this action, as he states in his complaint, on behalf of himself and all others who, as stockholders of the defendant herein, the Mariposa Land & Mining Company of California, are assignees of and successors to the original holders of the Mariposa trust certificates • and first preferred stock, and other stocks of the defendant, the Mariposa Company, under a trust deed dated April 25, 1868, and holders of the stock of the defendant, the Mariposa .Land & Mining Company of New York, and of and to all right, title, and interest of the said original holders in and to the Mariposa estate in said complaint described, and who have accepted stock of the defendants, the Mariposa Land & Mining Company of New York and Mariposa Land & Mining Company of California, under the circumstances thereinafter described, who are similarly situated with the said plaintiff, and who should come in and take part in and contribute to the expenses of this action. Upon the argument of the appeal it was admitted by the counsel for the appellant that the issues litigated in the California action were substantially the same as those presented herein. But it is claimed that the plaintiff, having been the owner of certain Mariposa trust certificates which he had exchanged for certain stocks of other corporations in ignorance of the frauds alleged in the complaint perpetrated upon him, is by reason of such fraud entitled to a return of these certificates, and is in equity entitled to maintain this action as such certificate holder; and that the plaintiff and those similarly situated are to be regarded, not as stockholders of the new companies, which will be hereinafter mentioned, but simply as holders of the original Mariposa trust certificates. It seems somewhat doubtful whether this action was commenced upon any such theory, in view of the allegation contained in the complaint that “ the plaintiff did not apply to the defendant corporations, viz. the Mariposa Land & Mining Company of New York and the Mariposa Land & Mining Company of California, nor to the said trustees, being the trustees of such corporations, to induce them to bring actions to set aside the aforesaid fraudulent contracts and conveyances, nor to remove the cloud on the title to the Mariposa estate caused thereby, etc., for the reason that the trustees, directors and officers of said corporations, and a majority of the trustees, have either been parties to the said fraudulent acts, etc., or have been fraudulently and improvidently consenting thereto; and it would be a useless form to request them to take action for the protection and enforcement of the rights of this plaintiff and of those similarly situated, and this plaintiff and those similarly situated with him are afraid and unwilling to entrust the conduct of this suit, or of any similar suit, to them, or to any of them, whose acts are sought to be impeached, and should not in equity be compelled to do,so.” This allegation is only consistent with the theory that at the time, at least, of the filing of this bill the plaintiff was seeking to enforce, as a stockholder of these two companies, rights of these corporations against those who had been fraudulently conspiring against such rights.

But it would appear that it is now sought to maintain this action upon a different ground. It must be conceded that if plaintiff, as a stockholder of the Mariposa Land & Mining Company of California, is seeking to obtain any relief as against the alleged fraudulent acts of some of these defendants, the judgment in California is a bar to the action now before this court. That action in California was brought by one of the defendants in this action for the foreclosure of a mortgage, the validity of which is assailed in this action. The Mariposa Land & Mining Company of California and a subsequent incumbrancer were made parties to that action, and by answer and cross bill substantially the same allegations were made against the validity of that instrument as are contained in the complaint in this action. The result of the trial of the issues in California was a defeat of the claim of the invalidity of the mortgage, and the establishment of the rights which are assailed in this action. There is no pretense or allegation contained in this complaint that such judgment was collusive or fraudulent; but it is alleged that certain facts were not presented to the court in California which might have been established; and that certain parties were not made defendants in that action, and that certain rights were not cut oil therein; all of which depend upon the question, which has heretofore been suggested, as to whether the plaintiff can maintain this action as the equitable holder of the original Mariposa trust certificates. It will be necessary,in order to determine this proposition, to examine briefly the general allegations of the complaint. It is alleged that the defendant, the Mariposa Company, was a corporation duly organized in the year 1868, under the laws of the state of New York, for the purpose of holding and operating mining property in the state of California, referred to as the “Mariposa Estate.” That the defendants, Eugene Kelly and Joseph A. Donohoe, were copartners in business in the city of New York under the firm name and style of Kelly & Co., having also a place of business in the city of San Francisco, Cal., under the firm name of Donohoe, Kelly & Co., Kelly residing in New York and Donohoe residing in San Francisco. That prior to the 25th of April, 1868, the defendant, the Mariposa Company, was the equitable owner and in possession of a certain tract of land in the county of Mariposa, and state of California, known as “ Las Mariposas Estate,” containing seventy square miles of land, upon which there were extensive and valuable mines of gold and other minerals. Coupon bonds of the said Mariposa Company, payable to bearer, and bearing interest at seven per cent, per annum, upon which it was in default, were then outstanding, secured by the company’s mortgage upon the estate, and the company had the usual accompaniment of a floating debt and preferred and common stock.

The defendant, John W. Brumagim, held the legal title to the estate, which legal title had been acquired for account of his brother, the defendant, Mark Brumagim, at a cost to said Mark Brumagim of the sum of $800,000, or thereabouts, and was then owned by said Mark Brumagim, though in the name of John. That on said 25t,h of April, 1868, the said John Brumagim conveyed the said Mariposa estate to certain trustees upon certain trusts mentioned in said deed, and, among other provisions in said deed, it was provided that said trustees should issue and deliver certificates, referred too in said deed as “ Mariposa Certificates,” to an amount not exceeding in the whole $4,000,000 of principal, to such of the holders of the preferred stock of the Mariposa Company and to such of the creditors of said company upon bonds, judgments, or otherwise, as the said trustees might elect, upon transfer, assignment and delivery to said trustees by said preferred stockholders and creditors, to whom such certificates should be issued, of an amount either of preferred stock or of indebtedness of said Mariposa Company equivalent to the par value or principal of such Mariposa certificates, and upon the payment in cash to said trustees by the parties receiving such certificates of such amount as said trustees of the Mariposa estate should see fit from time to time, or in respect to each transaction, to prescribe and exact, provided that such amount of cash should not be less than ten per cent upon the par value of such of said certificates as should be issued in exchange for bonds or other indebtedness of the company other than judgments, and thirty per cent in cash upon the par value of such certificates as should be issued in exchange for judgments against said company, or of preferred stock of said company; which agreement also contained certain provisions in regard to the disposition of the cash thus received. The complaint then alleges that the holders of the bonds of the Mariposa Company, and its other creditors and stockholders, availed themselves to a very large extent of the privileges of said trust deed, and exchanged their bonds and debts and stocks for the Mariposa trust certificates; and that in this month certificates were issued and became outstanding to the amount of $4,000,000, or thereabouts, and there was paid as assessments or percentages on said exchange of securities the sum of $700,000, or thereabouts.

The complaint then contains allegations as to the liquidation of portions of the indebtedness above referred to, and as to a scheme upon the part of Kelly & Donohoe and John W. Brumagim to obtain the title to the property by fraudulent concealment of proceedings in reference to the collection of taxes from the majority of the trustees in the trust deed, and from the certificate holders and others interested in the Mariposa Company, which resulted in the sale of the property for taxes, and a purchase of the same in the interest of Kelly & Donohoe; and also allegations as to the proposed sale by the trustees under the trust deed, and to an attempt to redeem the property from the tax sales. _ The complaint also alleged that the plaintiff became the holder in March, 1870, of 100 shares of the first preferred stock of the original Mariposa Company, and that in April, 1870, he purchased in the open market $10,000 of Mariposa trust certificates.

It is further alleged that on the 8th day of June, 1871, the Mariposa Land & Mining Company of New York was duly incorporated for the like purpose and object as the original Mariposa Company, the certificate of incorporation fixing the amount of the capital stock at $15,000,000, $5,000,000 of preferred and $10,000,000 of common stock, and that it was proposed that this Stock should be issued in exchange for the trust certificates and for the securities of the original company, upon certain terms and conditions, in reliance upon which the holders of trust certificates, including the plaintiff, exchanged their former holdings of. certificates and stock for the new stock, paying large sums of money for the supposed privilege. That the exchange to the plaintiff was made on the 17th of November, 1871, he paying $500 in cash, and receiving a certificate for 247i- shares of the said company’s preferred stock; and that in March, 1878, the holding of stock of the plaintiff in the Mariposa Laud & Mining Company of New York amounted to 280 shares; and that in the way above stated, on or before the 80th of January, 1872, the new company became possessed of a large number of Mariposa trust certificates and Mariposa first preferred stock.

The complaint then contains various allegations of fraudulent conduct on the part of Kelly & Donohoe, by whom claims were preferred against said properties without any foundation in fact; and that under the laws of California for the organization of corporations for the purpose of owning and operating mines within said state, assessments might be made by corporations upon the holders of its stock for moneys to be used in conducting the mining operations and paying* the indebtedness of the corporation, which power did not exist in the state of New York; and that, in order to avail himself of this further mode of raising money, the defendant Mark Brumagim, in or about the month of November, 1874, caused the incorporation of the defendant, the Mariposa Land & Mining Company of California, with power to levy assessments on its shareholders as above described; and that on the 16th of November, 1874, the Mariposa Land & Mining Company of New York executed and delivered to the Mariposa Land & Mining Company of California a deed, or deeds, purporting to be of the Mariposa estate, in exchange for the entire capital stock of the California company, to be distributed and delivered share for share to and for the holders of the capital stock of the New York company in exchange therefor, and in further consideration of the assumption by the California company of the debts of the New York company, and of all claims against the ' trustees of the aforesaid trust deed of April 25, 1868; that in said month certificates for the entire capital stock of the California company were delivered to the New York company, and in the year 1875 the plaintiff surrendered his said 250 shares of stock of said New York company to the California company, and received in place thereof 250 shares of the capital stock of said California company, upon which stock the plaintiff has paid in to said California company divers assessments.

The complaint then alleges that in the close of the year 1875 said Kelly and Donohoe were without other hold upon the Mariposa estate for the collection out of it of the balance of their alleged claims than the possession by way of pledge of some 50,000 shares by the New York company, whose officers claimed to have conveyed the entire estate. That thereupon two plans were formed for the better insuring the collection of said alleged balance out of said estate, one devised and favored by Kelly, and one devised and favored by Donohoe. Various proceedings were had by said Kelly and Donohoe, and in January, 1873, said Donohoe caused the Mariposa estate to be bid in under the name of his agent at a sheriff’s sale under execution to enforce judgments theretofore, and in December, 1874, obtained against the New York company, the said purchase being made for the joint benefit of Kelly and Donohoe and the purchase price being furnished and paid by said firm of Eugene Kelly & Co., of New York. That Donohoe purchased certain judgments against the New York company, and also caused the estate to be bought in on a sale for taxes of the previous year. That in June, 1875, said Kelly having abandoned his own plan in favor of the scheme devised by Donohoe, thereafter united with said Donohoe in attempting to perfect the title of the Mariposa estate on such terms and conditions as would best insure the collection out of said estate of the balances claimed by Kelly and Donohoe against said Brumagims, and in pursuance of said scheme, in said June, and before the expiration of the time allowed by law for redemption from said judgment sales ánd sales for taxes, said Kelly as president and secretary of the New York company, and one Stilwell, claiming to act as stockholder of the New York company, and on behalf of certain other stockholders, executed a certain agreement, and said Donohoe, in July, 1875, and before the expiration of the time allowed by law for the redemption from such judgment sales and sales'for taxes, executed an agreement in California by and with the president and secretary of the California company in the name of said company. By the first of these agreements it was provided that Kelly should surrender to the California company certain certificates of common and preferred stock of the New York company'and certain canceled Mariposa trust certificates and a note of John W. Brumagim for $103,515.39, gold, held by him, upon certain payments being made.

By the second agreement, after reciting the purchase by Donohoe at sheriff's sale, and the ownership of certain judgments purchased by Donohoe, and that the California company was without means to redeem the property from said sale or to pay the judgments against the New York company, and that it was important to the California company to secure prompt settlement of certain litigations pending, and that it was desirous of having the said premises conveyed to it immediately after the sheriff’s deed should be executed and delivered, and to give to Donohoe a mortgage for the purchase money, it was agreed by the California company to purchase from Donohoe the right, title and interest in and to the said property, and to pay him therefor the price therein named; and simultaneously with such conveyance, for the purpose of securing payment to said Donohoe of such purchase price, the California company agreed to execute and deliver to him certain promissory notes, seven in number, the first note payable in six months, and the last notes in twenty-four months, each of which notes should be conditioned that, if default should be made in payment of the principal and interest of any of the notes, or any part thereof, and such default should ■continue for the period of thirty days, then the whole principal sum and interest should be due, and all the notes should be deemed to be and should immediately thereupon become due and payable ; and to secure the payment of said notes the California company agreed to execute and deliver to Donohoe a mortgage upon its property; and that, in pursuance of this agreement, on the 2d of August, 1875, the notes and mortgage were executed by the California company, and delivered to the defendant Donohoe. The complaint then alleges that certain of the notes were given to pay for money furnished by the firm of Kelly & Co. at said judgment and tax sales, together, with interest thereon. That certain other of the notes were given to cover and provide for the note of Brumagim, with interest, and other of the notes to pay for an amount claimed by Kelly to be due from Mark Brumagim and for counsel fees of Kelly’s counsel in New York, and that said notes were without consideration, and that the New York company had never ratified the arrangement with Donohoe, nor was there any valid authorization or ratification by the California company; and that, after the execution and delivery of said promissory notes and mortgage by the said California company to said Donohoe, such company was put into possession of the Mariposa estate, under deeds theretofore executed by the New York company, and also under deeds executed by Donohoe, and thereupon the said company at sundry times levied sundry assessments on said stock, and thereby received and collected considerable sums for the operating of said estate, out of which sums said company paid said Donohoe, for himself and said Kelly, before the commencement of this action •or of the foreclosure suit thereinafter mentioned, the sum of $160,-000 or thereabouts; and that by said payments the whole amount due to or incurred by said Kelly and Donohoe, or either of them, in the purchase of said estate under judgment and tax sales in 1874 and 1875, and in the purchase of said judgment against the Mariposa Land & Mining Company of New York, were more than paid, and all equitable claims or lien which might have arisen in favor of Kelly and Donohoe against the estate by reason of said purchases by them were thereby wholly satisfied and paid. The complaint further alleges that nevertheless said Donohoe brought a suit in the district court of California in and for the city and county of San Francisco, in August, 1877, against the Mariposa Land & Mining Company of California and the Farmers’ Loan & Trust Company, for the purpose of foreclosing said mortgage by reason of the failure of said California company to pay certain of the notes given as aforesaid.

It further appears from an inspection of the judgment roll annexed to said complaint that the California company answered said complaint, setting up substantially the facts contained in the complaint in this action, and claiming a cancellation of the notes and mortgage in question, and that the Fanners’ Loan & Trust Company, an incumbrancer subsequent to the mortgage to be foreclosed, answered, and also filed a cross bill setting up the same facts and claiming the same relief; that the plaintiff answered said cross bill; and these issues were tried, and such proceedings were had that a decree of foreclosure and sale was pronounced and entered by said court, and a sale of the Mariposa estate was had under the decree in January, 1882, and said estate bought in by said Donohoe for the sum of $300,000, being the amount of said judgment; that an appeal has been taken from said decree, but the time within which the redemption of said estate from the said sale under the statutes of California in case the said decree and sale are allowed to stand unimpeached has long since expired. The complaint further alleges that the trustees of the Mariposa estate, Mark Brumagim and the Mariposa Land & Mining Company of New York, were not made parties to that suit, and that no party in interest in said Mariposa estate, whether as holders of trust certificates, or of stock of the original Mariposa Company, or of the stock of the Mariposa Land & Mining Company of New York, or of the stock of the Mariposa Land & Mining Company of California, including this plaintiff, were made parties to this suit; and that, in view of the facts set forth in the complaint, the lights of the cestvis que trustent under the trust deed, including the plaintiff, and their assigns, and the holders of the stock of the Mariposa Land & Mining Company of New York and the Mariposa Land & Mining Company of California, had not been foreclosed or cut off by any decree in said suit, they not having been parties thereto nor represented therein, and there being also certain defenses to any action based upon the validity of said mortgage which were available to them, but which could not be set up by said California company; and that the rights of the plaintiff and others interested in the Mariposa estate were not represented by the said California company as defendants in said suit; and that the said district court of the fourth judicial district of California was wholly without jurisdiction of the parties above named not made defendants. Then follow certain general allegations, which are not material to the questions to be discussed upon this appeal.

And judgment is prayed, among other things, that the decree made in said suit in the district court, and the sale thereunder, be declared as of no binding force against the trustees under the trust deed, or against the New York compány or its stockholders, or against the California company, or against the plaintiff and those similarly situated.

Upon this review of the allegations of the complaint it is difficult to see upon what theory the plaintiff can claim that he is a holder of Mariposa trust certificates, and can, as the holder of such certificates, assert rights under the trust deed of 1868. He has not only surrendered such certificates in exchange for stock of the Mariposa Land & Mining Company of New York, but has exchanged that stock for stock of the Mariposa Land & Mining Company of California, and there is no pretense that there has been any attempt upon his part to rescind such exchange, or any offer upon his part to return the stock of which he is the holder, and by virtue of which he substantially claims to be the holder of the trust certificates. In the consideration of this proposition it is not necessary to determine whether, under the circumstances shown by the allegations in this complaint, he could, even by an offer to tender back the stock which he had received, at this late day put himself in a position to enforce his rights as equitable owner of Mariposa trust certificates. But it is clear that, being a stockholder of the Mariposa Land & Mining Company of California, and that being his only evidence of interest in this property, and it being necessary that he should assert through that company whatever rights he has as against this property, and the identical questions to be litigated in this action having been litigated by said company in good faith, and said company having been defeated, this plaintiff is bound by that judgment. As a stockholder he has no independent right of action. Whatever rights he has he must assert through the company of which he is a stockholder. The only theory upon which a stockholder is permitted to bring suit, as recognized by the allegations of the complaint in this action, is that it is brought on behalf of the company to establish rights existing in the company by the stockholder, for the reason that the trustees of the company have refused to or will not protect the rights of the company in respect to the subject-matter. Such being the case, the Mariposa Land & Mining Company of California represents all the parties who it is claimed were not made parties defendant in the foreclosure suit, and a judgment against the company is binding upon them. There are no holders of Mariposa trust certificates.

It would appear from the allegations in the complaint that all these certificates had been surrendered and canceled in the various negotiations which resulted in the placing of the title of this property in the California company, and the execution and delivery of the notes and the mortgage to Donohoe, which was foreclosed by him. It would seem, therefore, that there was no ground whatever upon which the plaintiff could come into court and obtain relief; this court having no power of review over the proceedings in the district court of California. If it had been shown upon the part of the plaintiff that the California judgment had been collusively and fraudulently obtained, then, perhaps, some relief might possibly have been afforded in the courts of this state. But it is doubtful if even that could be done, the subject matter of the litigation, and the parties to it, being; residents of and situated within the state of California. But this point it is not necessary to determine in the disposition of this appeal. It would seem, therefore, that the judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


text:
    George Washington, Resp't, v. The Staten Island Rapid Transit Railroad Co., App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Wharves—Contributory negligence.
    Where the master of a vessel continues to discharge cargo at a wharf after he has ascertained that the bottom of the dock is so uneven that liis boat is liable to be injured, such voluntary continuance is negligence "which contributes to injuries therealter sustained, and no recovery can be had for such injuries.
    Appeal from a judgment recovered by the plaintiff in an action to recover damages for certain injuries to his canal boat sustained at a dock at Clifton, Staten Island.
    Tracy, Boardman & Platt (A. Boardman, of counsel), for app'lt; Hyland & Zabriskie, for resp't.
   Van Brunt, P. J.

This action was the owner of the canal boat H. E. Washington to recover damages sustained by his vessel by reason of the bad condition of the bottom of a certain dock at Clifton, S. I., of which the defendant was the lessee. It appeared that the Staten Island Railroad Company, in 1884, leased to the defendant for the term of ninety-nine years the premises in question, with others, and that the defendant agreed to keep and maintain the demised premises, for and during the term of the lease, in good condition and repair, and at the termination thereof to restore the same, etc. It was admitted upon the trial that the dock "was in the possession of one Lord, who paid rent to the defendant; but what the terms and conditions were under which Lord was in possession of the dock nowhere appeared. The evidence showed that the plaintiff came "with his boat loaded with coal to be unloaded at this wharf; that he arrived at five o’clock in the morning, when the tide was falling; that he sounded the bottom, and laid his boat so that he could discharge by means of a derrick which was upon the dock. As the tide went out, his boat rested upon the bottom. There were big lumps upon the bottom, and she sprang a leak as soon as she got upon the bottom. When the tide rose again the leak stopped, and the plaintiff commenced unloading his boat. During the time the plaintiff was there she rested upon the bottom eight times, and leaked every time, and, the plaintiff having shifted his boat for the purpose of getting the coal out of her, the boat was affected in different places by the unevenness of the bottom, and for that reason was more considerably injured than if she had not been moved. In view of this evidence the court was asked to charge the jury that' if they believed that these injuries, or any part thereof, were caused by the plaintiff remaining at the dock after he knew the condition of the bottom, for these injuries he could not recover. This the court refused to charge, and an exception w’as duly taken. We think this was error. After the plaintiff had ascertained the unevenness of the bottom by which his boat wras liable to be injured, his voluntary continuance at this dock certainly was negligence which contributed to such portion of the injuries as were thereafter sustained.

It further appears from the evidence of the plaintiff himself that for the purpose of unloading his boat he changed her position so that she became injured in different and other places of her hull, which would not have been the case had she remained in the same position, and certainly would not have been the case had she been removed when he discovered the difficulties which attended Ms lying there. But with full knowledge of the danger he was running, he allowed his boat to ground eight times, and thereby become injured in the serious manner claimed upon the trial. A party cannot make use of a pier knowing that it is unfit for the purpose for which he proposes to use it, and then claim compensation for the damages sustained by the imperfections of which he had knowledge. The plaintiff, therefore, upon ascertaining the fact that this dock was unfit for his purposes, which it is apparent he knew before he commenced unloading his boat, was bound to remove in order to escape damage; not to lie there for four days, apparently for the purpose of having his boat injured as much as possible by the inequalities of the bottom. All the cases cited to support the plaintiff’s claim rest on the cardinal principle that the master of the boat had no knowledge of the obstruction which caused the injury; and that, it being one which was discoverable by reasonable care upon the part of the owner of the dock, the boat owner, being without fault, can recover. That the master of a vessel has a right to presume that all parts of a dock are safe, and is not guilty of contributory negligence by taking his boat to a place which, under circumstances not anticipated by him, is less safe than another, is the rule laid down in 2 Shear. & R. Reg. (4th ed.), § 227. But no case can be found where, after the master of the boat has learned of the defect, and he still persists in imperiling his boat by the use of the dock, he has a right to recover for the voluntary injury sustained after the discovery of the imperfection. We think, therefore, that the court erred in refusing to charge as requested, and that for this error the judgment must be reversed, and a new trial ordered, with costs to appellant, to abide event.

O’Brien and Follett, JJ., concur.


author: Per Curiam.

text:
    Charles Lex Brooke, Rec'r, Pl'ff, v. The Tradesmen's National Bank, Def't.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Appeal—Case.
    Exceptions ordered heard in the first instance at general term will not he heard by that court where no case or bill of exceptions has been made and settled containing the proceedings on the trial.
    Exceptions to the dismissal of the complaint and to the denial of a motion for a new trial ordered to be heard in the first instance at the general term.

      E. R. Leavitt and Charles W. Brooke, for pl'ff; C. E. Rushmore, for def't.
   Per Curiam.

Upon an examination of the papers submitted upon this appeal, it is found that no case or bill of exceptions has been made or settled containing the proceedings upon the trial. All that the papers contain are the pleadings, a copy of the clerk’s minutes, and an order directing the exceptions to be heard, in the first instance, at the general term. It is true that the order contains certain recitals; but they are not in the form of a case or bill of exceptions, which it is necessary should be made in order to bring up the proceedings upon the trial upon this motion for a new trial. There is no appeal from this order, but a motion fora new trial because of exceptions taken upon the trial; and the proceedings upon the trial are not set out in a case or bill of exceptions, as required by the Code. The case should, therefore, be stricken from the calendar, in order that the parties may have the proper papers prepared.

"Van Brunt, P. J., O’Brien and Follétt, JJ., concur.


text:
    In the Matter of Opening One Hundred and Sixty-seventh Street.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Municipal corporations—Opening streets.
    The fact that three unconnected sections or streets are known by the same name, and aggregate more than a mile in length, does not require that one-half the cost of opening one of the sections or streets be assessed on the city under chap. 410, Laws 1882, where the different sections were opened at different times, and each is a perfect street of itself, and no intention of connecting them is made to appear.
    3. Same.
    The section of the statute relating to the assessment of damages has reference to the length of a street as laid out. If, as opened, it is less than one mile in length, and is of itself a perfect street, the property owners must bear the whole burden, even though it was originally designed to be much longer.
    Appeal by Lyman Tiffany et al, trustees, from an order confirming the report of the commissioners of estimate and assessment.

      Truman H. Baldwin, for app'lts, property owners; William H. Clark (John P. Dunn and Matthew P. Ryan, of counsel), for resp't, mayor.
   Follett, J.

Property benefited by the opening of streets, not more than one mile in length, in the twenty-third and twenty-fourth wards, may be assessed to the extent of the benefits conferred for the purpose of paying the cost of laying them out; but in case the streets laid out are more than a mile in length, not more than one-half of their cost can be assessed upon property benefited, and the city is liable for the remainder. Consolidation Act, Laws 1882, chap. 410, §§ 677-958. In 1871, the commissioners of Morrisania filed a map showing a continuous street, now known as One Hundred and Sixty-seventh street, which was more than a mile in length, and extended from Westchester avenue on the east, to Jerome avenue on the west. From Westchester avenue to Prospect avenue the distance is 2,945 feet; from Prospect avenue to Boston avenue the distance is 1,554 feet; from Boston avenue to Clay avenue the distance is 2,130 feet; from Clsy avenue to Sheridan avenue is 2,230 feet; from Sheridan avenue to Jerome avenue is 1,520 feet.

From Westchester avenue to Prospect avenue the street has been legally laid out; from Prospect avenue to Boston avenue a street was once opened, but has been discontinued ; from Boston avenue to Clay avenue a street has been laid out, and is known as a portion of One Hundred and Sixty-seventh street; from Clay avenue to Sheridan avenue there is no existing street; from Sheridan avenue to Jerome avenue a street has been laid out, and is known as part of One Hundred and Sixty-seventh street. The distance between Westchester avenue, on the east, and Jerome avenue, on the west, by the line of the street, as shown on the old map, is about 10,429 feet. The aggregate length of the three sections of the street legally laid out is 6,595 feet, or 1,315 feet more than one mile. February 19, 1892, commissioners were appointed to assess the damages and benefits to the property caused by opening a street from Westchester avenue to Prospect avenue, a distance, as before stated, of 2,945 feet. The assessment was made upon the basis that the proposed street was less than one mile in length, and that all, instead of one-half, of its cost was to be borne by, and was assessed upon, the property benefited. There is no evidence in the case that the city proposes to unite the three sections known as One Hundred and Sixty-seventh street so as to make a continuous street from Westchester to Jerome avenue, nor is there any evidence that the city intends to lay or continue a street between Prospect and Boston avenues, or between Clay and Sheridan avenues, so that any two of the sections of the street known as One Hundred and Sixty-seventh street will be united and form a street more than a mile in length. Mr. Grieffenberg, an assistant topographical engineer of the street department, who was the only witness examined, testified that One Hundred and Sixty-seventh street was originally laid out from Prospect to Boston avenue, but that it had been discontinued and canceled from the map, and forms no part of One Hundred and Sixty-seventh street. It was discontinued February 14,1889. This evidence was not disputed. The fact that the three unconnected sections or streets are known as One Hundred and Sixty-seventh, and aggregate more than one mile in length, does not require that one-half the cost of opening the east section or street be assessed on the city. Each of these sections or streets was opened on different dates, and each is a perfect street of itself, commencing and terminating at avenues. Neither is a cul cle sac.

There is no physical connection between these sections or streets, nor does it appear that a union is contemplated or practical, and there is no connection between them except the name. Had one of these sections been called Gold street, another Silver street, and the part involved in these proceedings 167th street, it would not, we think, have been asserted that 167th street was, by reason of the existence of Gold and Silver streets, more than one mile in length, even though it had been originally contemplated that they should form a continuous street, bearing the same name. The section of the statute relating to the assessment of damages has reference to the length of the street as laid out. If, as opened, it is less than one mile in length, and is of itself a perfect street, the owners must bear the whole even it was originally designed by the street department to be much longer.

The order should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Louis Lindheim et al., Resp'ts, v. The Manhattan Railway Co. et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Action—Want of Authority.
    An action will be dismissed on motion of defendant, as brought without authority, where the complaint is verified by one who had no interest in the cause of action, and the attorney bringing the action cannot produce a retainer or name the party authorizing him to bring suit.
    2. Railroad—Elevated—Parties.
    The legal title to land being in trustees, for the benefit of certain heirs, suit for damages to the land cannot be brought by the heirs unless the trustees have refused to protect their rights.
    3. Same—Trustees.
    An allegation in a complaint that the trustees have refused and declined to be made parties plaintiff in this action, and they are made defendants for that reason only, is not sufficient to show that the trustees had refused to bring such action, they having a right to refuse to allow attorneys selected by their beneficiaries to bring'the action.
    Appeal from judgment in favor of plaintiffs.

      Davies & Rapallo (R. L. Maynard and Julien T. Davies, of counsel), for app'lts; Peckham & Tyler (E. W. Tyler, of counsel), for resp'ts.
   Van Brunt, P. J.

This action was to recover damages for the operation of the defendants’ railroad in front of premises located on the southwest corner of Broome street and South Fifth avenue from the 15th of May, 1882, to the 22d of April, 1884. It appeared that in 1867 the property was purchased by one Moses Lindheim and Bernard Stirn. Bernard Stirn subsequently, in May, 1882, conveyed to his brother, Samuel Stirn, half of his interest in the property. In 1871, Moses Lindheim died, leaving a will, whereby lie devised all his estate, real and personal, to his executors in trust. Letters testamentary were issued to Bertha Lindheim, his widow, John L. Lindheim, his brother, and to Jacob Bookman, on the 23d of March, 1871. Bertha Lindheim having died on the 26th of February, 1884, one Samuel Cohen was appointed executor and trustee in accordance with the provisions of said will. The trustees were empowered to sell any real estate of which Moses Lindheim died seized and possessed; and in March, 1884, the trustees under said will sold, and by deed executed by them, conveyed, to Bernard Stirn their half interest in the premises in suit, in which deed the heirs of Moses Lindheim joined. From this date Bernard Stirn was the owner of three-fourths, and his brother, Samuel, of one-fourth of the premises.

On the 25th of January, 1888, a suit was brought by the Stirn brothers against these defendants, in which they recovered past damages upon the property for the amount of their interest in the-same for the period between January 5, 1882, down to the time of trial, in June, 1888. In May, 1888, this action was commenced by the service of a summons in which the Lindheim heirs and the Stirn brothers were made plaintiffs, and the executors and trustees under the will of Moses Lindheim and the Manhattan Railway Company and the Metropolitan Elevated Railway Company were made defendants, to recover the damages sustained by that portion of the property owned by the Lindheim estate from the 15th of May, 1882, to the 22d of April, 1881, the day on which the Lindheim half interest was conveyed to the Stirns.

The complaint was verified by Bernard Stirn who, it is conceded, had not the slightest interest in the controversjq and as to whom the complaint was dismissed upon motion of the defendants. The case was subsequently submitted to the jury, who rendered their verdict and from the judgment thereupon entered and from an order denying a motion for a new trial this appeal is taken.

It is urged upon the part of the appellants that it was error to deny the motion to dismiss the complaint substantially upon two grounds: First, that no authority whatever to bring the action was established; and, second, that even if such authority had been established, the title to the property being in the trustees of Moses Lindheim, his heirs could not maintain the action. It seems to us that the case is absolutely devoid of any proof of authority upon the part of the attorneys to maintain this action. The complaint was verified by a party who had not the slightest interest in the action, and as to whom it was dismissed : and although it was stated by the attorney claiming to be the counsel for the Lindheim heirs that he had a retainer from those heirs, he seems to have been unable to produce it; and although he claimed to have had a conversation with one of the heirs in respect to bringing the action, it was impossible for him to name which one, or when or where. In fact, so far as the case shows, there does not seem to have been a particle of authority conferred upon the attorneys to bring the action. But, even if there had been such authority conferred by the heirs, the title being in the trustees, the suit must be brought by them, unless they had refused to protect the rights of the heirs, and of this there is neither allegation nor proof. It is attempted to bolster up this action by a claim, which is an afterthought of a refusal upon the part of the trustees to bring any action in the interest of the estate. We say this was an afterthought because no such allegation was contained in the complaint. If it is claimed that the last clause of the sixteenth paragraph of the complaint is such an allegation, a mere inspection of it will show that it is not. It is as follows: “ That said executors and trustees have refused and declined to be made parties plaintiff in this action, and they are made defendants for that reason only.” They had a right to refuse to allow these self-constituted attorneys to bring an action in their name. They had a right to bring and control the action themselves, and could not be compelled to accept these self-elected attorneys, because the attorneys appearing in the action do not even seem to have been selected by the heirs.

That this is all the request that ever was made upon these trustees is apparent from the letter of the attorneys of the 21st April,' 1886. They say, writing to one of the trustees: “We are about to bring an action for the Stirns to recover damages,” etc. What interest had these executors in any action to be commenced by the Stirns to recover damages ? They were not required to be mixed up with the Stirns in their case. There is no pretense that they were acting then on behalf of the heirs of Moses Lindheim, or that it was in the interest of that estate that the suit was to be begun. They then go on and say: “As the people representing the Lindheim estate are necessary parties to the action, we must make you parties, either plaintiff or defendant, whichever you prefer. Please let us know whether we shall make you and the other executors co-plaintiffs with us, and recover for your half of the damages, or make you defendants. We should be glad to see you at your earliest convenience about this matter, as the time is passing away for which we can recover, and the longer we wait the less recovery there will be.” Then, on the 7th of May, in another letter, they say-. “Will you please call and see us to-morrow. We have heard from the Lindheims, and they want us to bring suit.” This is the first that had been heard in regard to the Lindheims, and, so far as this case shows, there is no legal proof that anything had ever been heard from the Lindheims. It is true that the attorney testified that his recollection is very distinct that he made an application to be allowed to bring a suit; that there was no doubt in his mind about that whatever; and that it was in the form of a letter addressed to them, and signed as attorney for the Lindheims. But no such letter has been produced or proven, and it seems to us that this testimony is the witness’ construction of the letters which have been produced and are contained in the case.

Now actions cannot be maintained upon such a basis as this. There must be some foundation. It is evident that the origin of this action was to recover on behalf of the Stirns, and that these other people were brought in without notice to themselves, and without right. That the action was Stirn’s action is evidenced by the fact that he verified the complaint, and that all the -request that was made upon the trustees was, that they should be made plaintiffs, or otherwise be made defendants in the Stirns’ action. There is no intimation in any of the correspondence that they were appearing on behalf of the Lindheims, to commence an action to protect their rights; and it is a significant circumstance that, although one of the plaintiffs was examined as a witness, there was no attempt made, after the original authority of the attorneys to appear for the Lindheim heirs had been questioned, to prove any such original authority. We think, therefore, that there was no proof which entitled these parties to bring the action in question, and that the motion to dismiss should - have been granted. The judgment should be reversed, and new trial ordered, with costs to appellants to abide the event.

O’Brien and Follett, JJ., concur.


text:
    Edwin C. Donnell, Pl'ff, v. The Mayor, etc., of New York, Def't.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Municipal corporations—Removal op stenographer—When notice op SUSPENSION AMOUNTS TO.
    Plaintiff, who was a stenographer in the department of public works of New York city, was n .tified that the services of two stenographers was not needed, and that he was suspended from further duty from the date of the notice. Some months after he received notice that he was reinstated “to take effect this day.” In an action for salary for the intervening time. Held, that there was an absolute removal and not amere suspension of duty, and that plaintiff could not recover.
    Exceptions directed to be heard in the first instance at general term upon the dismissal of the complaint in an action to recover salary alleged to be due,

      W. E. Cook, for pl'ff; William H. Clark (E. H. Hawke, Jr., and C. A. O'Neil, of counsel), for def't.
   Van Brunt, P. J.

This action was brought to recover a sum alleged to be due to the plaintiff for salary as stenographer in the department of public works, in the city of New York, for a period during which he alleges he was unlawfully suspended from duty. The answer alleged the discharge of the plaintiff, and the termination of his employment, and that, after the expiration of the period covered by the action, he was re-employed in his old position. The plaintiff claims that the case is controlled by the rule laid down by the court of appeals in the case of Gregory v. Mayor, 113 N. Y., 416; 22 St. Rep., 703, it being urged that in that case it was held that an employe in one of the departments of the city of New York could not be suspended, but if he was unfit for the position which he occupied, or there was no work for him to do, it was the duty of the head of the department to remove him, and that he could not be suspended without pay; the court in that case saying: “ It seems to us that the power of removal, in such a case as this, was intrusted to the commissioners, to be exercised, if at all, at once, and finally. It was not meant that they should have power to arbitrarily suspend without pay, and then appoint some other in the place of the suspended man, and perhaps suspend and remove the alternate, and again appoint some other. - The tendency would be to confuse, instead of perfecting, the service. The effect upon the suspended man would also be demoralizing, causing him to spend his time in efforts to get reinstated, rather than to procure a livelihood in other ways, which would be the result of a removal.”

It will be seen by the language used by the court that they speak of a man who has been suspended spending his time in efforts to get reinstated, rather than to procure a livelihood in other ways. I have been unable to see what would be the necessity of a man who had been merely suspended being reinstated. If he had been removed, he might seek to get reinstated ; but, if he had never been removed, there would be no place or position into which he could be reinstated. In other words, he has got to be unseated before he can be reseated.

The facts in the case at bar are these: On the 31st of December, 1880, the plaintiff was appointed a stenographer in the department of public works, at a salary of $1,200, to take effect on the 1st of January, 1881. On the 6th of April, 1886, he was informed that the services of two stenographers were not needed in the department; and it being the corrimissioner’s duty to dispense with any unnecessary force, he was suspended from further duty in the department from and after that date. On the 24th of September, 1886, he received the following notice: “You are hereby reinstated as stenographer in this department, at a salary of $1,800 per annum, to take effect this day. ” At the time of his reappointment the plaintiff made no claim for salary for the time between the notice that his services were no longer required and his reinstatement; and, although he stated that he tendered services to the department, the evidence in that regard is quite shadowy. It is urged upon the part of the defendant that no recovery can be had in this action, upon several grounds, one of which is that he was not suspended, but removed, from his position, and subsequently reinstated; and another is that he was not an officer, and did not have an office, within the meaning of the statute. In view of the conclusion at which we have arrived on the first ground, upon which the complaint is dismissed, it will not be necessary to discuss the second. It is apparent that the plaintiff, on the 6th of April, 1886, was removed from his position in the department of public works. He was then notified that the services of two stenographers were not needed in the department, and that he was suspended from further duty in the department from and after that date; and he did no further duty in the department until reinstated, on the 24th of September, 1886. How, when a person is suspended from further duty in the department, it is difficult to see what distinction there is between such a suspension and a removal. He was not suspended until some other time, or some other date, or until further notice. He was suspended from further duty in the department; from doing any other work, and from rendering any other service, in the department. And it was clearly the intention of the commissioner to remove him from the position which he then held, and it was so understood by the plaintiff.

That this was the intention is evidenced by the letter of September 24, 1886, by which he was reinstated in the position which he formerly held. If he had not been removed, it was impossible to reinstate him. The very use of the word “ reinstated ” shows that it was understood that the plaintiff was being restored to a position from which he had been removed. It is entirely immaterial what language was used in the notice of removal, so long as it was the plain intent to sever his connection with the department ; and that such was the intention is manifest from the language of the notice which suspended him from further duty, apparently for all time. Hothing is said about his being suspended without pay, implying that he was to hold his position, <Jo no work, and get no pay. He was removed from farther duty. If the word “ removed ” had actually been used, it would not have made the sentence any stronger; and if it had read, “You are removed from further duty in this department,” it could not be claimed for a moment that he had been suspended without pay.

We think, therefore, that the exceptions should be overruled, and the defendant have judgment upon the dismissal of the complaint in the court below, with costs.

O’Brien and Follett, JJ., concur.


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    Evelyn M. Trost, App'lt, v. Charles J. Hinman, Resp't

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Bills and notes—Presumption op ownership—Assignment.
    In an action on a non-negotiable note brought by the payee, where-the defense is that such note had been assigned, and that the assignee is the real party in interest, mere proof that plaintiff executed an assignment of all claims against defendant and another, or both, without proof of its delivery, or that of the note, to the alleged assignee, is insufficient to overcome the presumption of ownership arising from plaintiff’s possession of the note at the trial.
    Appeal from a judgment entered upon the findings of the court at circuit.
    S. A. & D. J. Noyes (Alex. Thain, of counsel), for app'lt; Horace Graves, for resp't
   Per Curiam.

This action was begun March 6, 1891, to recover on an instrument of which the following is a copy :

May 2, 1887.
“ On demand, I promise to pay Evelyn M. Trost the sum of three hundred dollars ($300).
“C. J. Hinman.”

It is alleged in the complaint that the instrument at its date was made and delivered to the plaintiff; that payment thereof had been duly demanded, and that no part thereof had been paid. These allegations are not denied in the answer, but it is averred therein, as a sole defense, that the note had been sold and assigned to John Devlin, who, when the action was begun, was the lawful owner thereof, and the real party in interest. To establish this defense, the defendant introduced in evidence a written instrument dated June 24, 1890, and signed by the plaintiff, by which, in terms, she assigned to John Devlin all her “ right, title and interest in and to any and all claims and demands I have acquired against Jabez C. SÍoat and Charles J. Hinman, or either or both of them, at the date of these presents.” No evidence tending to show a delivery of the instrument or of the note to John Devlin was given, nor was the note mentioned in the assignment. The mere proof that the plaintiff signed this assignment, without evidence of its delivery, or the delivery of the note, to John Devlin, was insufficient to overcome the presumption of ownership arising from plaintiff’s possession of the note at the trial. The judgment should be reversed, and a new trial granted, with costs to abide the event.

Yan Brunt, P. J., O’Brien and Follett, JJ., concur.


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    Emily A. Emerson, App'lt, v. Jesse M. Emerson, Resp't.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Divobcb—Almost.
    Where a limited divorce on the ground of desertion is granted to a wife, awarding her the custody of three daughters, two of whom are sickly and in need of medical attendance, and the husband is in receipt of an income of $10,00u, derived mostly from property acquired during the marriage, an allowance of $150 a month alimony is inadequate and should be increased to $200.
    Appeal by plaintiff from so much of the. judgment as awards her the sum of only $150 per month as alimony for her sup. port and maintenance, and for the maintenance and education of three of the children of the parties hereto.

      Black & King, for app'lt; Tucker, Hardy & Wainwright (Charles J. Hardy, of counsel), for resp't.
   Follett, J.

action for a from bed and board This on the ground of desertion was begun October 7, 1890. The desertion was not denied, and it was alleged in the answer that it was justified by the ill treatment of the defendant by the plaintiff, which was also set up as a counterclaim, and a separation was prayed for by him. September 8, 1871, the parties intermarried, and thereafter lived together as husband and wife until June 26, 1889, when the defendant abandoned the plaintiff, and has since refused to live with her. At the date, November 16,1892, of the entry of the judgment herein the parties had four living children: Jessie M., born June 13, 1872, who will become of full age June 13, 1893 ; Edward G\, born October 11, 1874, who will become of full age October 11, 1895 ; Florence E., born October 7, 1876, who will become of full age October 7,1897; and Adel A., born September 3, 1882, who will become of full age September 3, 19031 By the judgment the custody of the son, Edward G., was, at his request, awarded to the defendant, but the custody of the three daughters was awarded to the plaintiff, with $150 per month alimony for the support of herself and daughters, without costs to either party.

It is alleged in the complaint, and not denied in the answer, “ that at the time of the aforesaid marriage, the defendant was wholly without means ; * * * that almost all of said property was acquired while the plaintiff and defendant lived together as man and wife in the state of Texas, and almost all of such property, consisting of lands and personalty and an interest in the business of J. H. Emerson & Co., in San Antonio, Texas, is situated in the state of Texas.” The court found that the defendant owned realty in San Antonio, Texas, which produces a net income of $2,396.89 per year; that he is one-half owner of the business of J. M. Emerson & Co., of San Antonio, which has since January 1, 1889, produced net annual profits of $2,178.76; that he owns a one-fourth interest in the firm of J. M. Emerson & Sons, of New York, the net profits of which have been since January 1, 1890, at the rate of $4,000 to $4,500 per year ; that he is in receipt of a salary from J. M. Emerson & Sons of $100 per month when employed, which amounts to $900 per annum for the year preceding the entry of the judgment; thus making his annual income from $9,475.15 to $9,975.15. It was also found that the plaintiff had no property or means for supporting herself and daughters, or paying the costs of the litigation, except as derived from the defendant. The evidence in regard to the defendant’s property was given by himself, by one of his partners, and his agent The undisputed evidence is that the eldest daughter is in bad health, and that the youngest has for several years been subject to epileptic fits and requires constant medical attention. Between the date of the defendant’s desertion of the plaintiff and the trial he had furnished her and the three daughters with $122 per month, which the court found “ wholly inadequate to properly support, maintain, feed and clothe the plaintiff and the said three daughtersj in view of the defendant’s station in life and financial circumstances and to properly educate the said children.” The judgment should be modified by increasing the amount of the alimony to $200 per month from March 1, 1892, with leave to either party, in case of a change in the circumstances of either1 party, to hereafter apply for modification of this decree in respect to alimony; and as so modified, affirmed, with costs.

Van Brunt, P. J., concurs.


author: O'Brien, J.

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    Charles H. Richardson, Resp't, v. Emil Hartmann, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Appeal—New trial.
    Where a motion for a new trial was made, but no order denying such motion was entered, the absence of such an order is not supplied by the1 motion itself, or by a notice of appeal which states that the appeal is taken from the judgment and order denying motion for a new trial, and the only questions for review are those presented on appeal from the judgment, including exceptions to ruling upon the trial.
    2. Master and servant—'Wrongful discharge—Damages.
    _ A person under contract of employment for a definite term, wrongfully discharged, who,_ after endeavoring unsuccessfully to procure other employment, enters into business for himself, is entitled to have his damages measured by the amount of the agreed wages he was prevented from earning, less his profits made in his business.
    Appeal from a judgment entered upon the verdict of a jury in an action to recover damages for unlawful discharge.

      Thomas J. McKee, for app'lt; William H. Sage, for resp't.
   O'Brien, J.

The action was brought to recover damages by reason plaintiff, was employed by the defendant as his manager in the latter’s print works in Hew jersey. The contract, which was in writing, provided for the receipt by plaintiff of forty per cent of the net profits of the business, which it was guaranteed should not be less than fifty dollars per week. The plaintiff entered into the defendant’s employ on May 1, 1890, and continued therein until August 16, 1890, receiving (there being no profits) fifty dollars a week, and it is admitted by the answer that on the latter date he was discharged. The questions thus presented were as to whether or not the discharge was wrongful, and if so, the amount of plaintiff’s damages.

With respect to the first question, upon the testimony, it was peculiarly one of fact, and so regarded by counsel for the defendant, who neither moved to dismiss the complaint nor asked for a direction in defendant’s favor, and, upon the submission of the question to the jury, it was decided adversely to the defendant. Whether such verdict was or was not against the weight of evidence is not presented for review.

It is true that at the end of the case a motion for a new trial was made; but no order denying such motion was entered, and the absence of such an order is not supplied by the motion itself, or by a notice of appeal which, by its terms, states that the appeal is taken, not only from the judgment, but from the order denying the motion for a new trial, whereas by the record it does not appear that any order upon such motion was ever entered. Therefore, the only questions are those presented on an appeal from the judgment, including exceptions to rulings upon the trial.

In regard to the damages to which the plaintiff was entitled, the trial judge stated the rule as he regarded it, and no exception was taken thereto; but, at the close of the charge, the defendant requested the submission of one proposition, namely, “ that, by entering into business for himself, the plaintiff abandoned the claim thenceforward on his contract.” The judge, in effect, refused to charge this proposition, by saying “ that he would not charge it, but would leave that to the jury; ” and to this disposition of his request the defendant excepted. In determining what force is to be attached to this request, it is to be remembered that the plaintiff testified that, having unsuccessfully endeavored to get employment with one or the other of the only three print works in this country, he thereafter went into two different kinds of business on his own account, in both of which he was unsuccessful, and that the only money he had succeeded in earning since his discharge was about $300, resulting from his employment as a salesman under a commission in some cloth house, where it would appear he was engaged just prior to and at the time of the trial. The question whether or not by entering into business for himself plaintiff abandoned the claim upon his contract is not a new one. It has been recently passed upon by the general term of the court of common pleas in the case of Toplitz v. Ullman, 49 St. Rep., 226; and it was therein held that a person, under contract of employment for a definite term, wrongfully discharged, who, after endeavoring unsuccessfully to procure other employment, embarks in business on his own account, is entitled to have his damages measured by the amount of the agreed wages he was prevented from earning, less his share of the profits in the business into which he had entered. We are satisfied with the reasoning of that case, and it would serve no needful purpose to go over the ground so carefully covered by that case, which is on all fours with the case at bar. As there are no other exceptions, it follows that the judgment appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Follett, J., concur.


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    David M. Koehler, Survivor, App'lt, v. Thomas Olsen, Resp't.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Creditor's action—Excise license.
    An excise license not being the subject of assignment or transfer without permission of the board of excise, the interest or right of the licensee therein is not property which can be reached by a creditor’s action.
    Appeal from an order denying the plaintiff’s motion for the continuance of an injunction and the appointment of a receiver pendente lite.

      Charles Goldzier, for app'lt.
   Per Curiam.

This action is brought by a judgment creditor, after execution and return, upon a claim that there are certain equitable and other assets possessed by the judgment debtor which he refuses to apply to the satisfaction of the execution. These consist of a lease, fixtures, furniture, and license of a liquor saloon, in which the defendant is alleged to carry on business. With respect to this property, other than the license, it could be sold under the execution, and, as there is no allegation of fraudulent conveyance, or other cloud upon the title of the judgment debtor, resort to a judgment creditor’s action is entirely unnecessary.

The only question presented is, as to whether or not such an action is justified by the allegation that the debtor is the owner of an excise license, which cannot be taken upon execution, and which, therefore, it is necessary to obtain the aid of the court to reach. The solution of whether the action can be maintained for this purpose, and the relief to which the plaintiff thinks himself entitled accorded, must depend upon whether or not we consider such license property, and capable of transfer. Section 26 of chapter 401 of the Laws of 1892, provides:

“ The board of excise may * * * grant a written permission to a person or persons, who having a license from said board, * * * (2) to sell, assign or transfer such license during the term for which it was granted, and any person or persons who may thereupon carry on such business upon the licensed premises during the balance of the term of such license,” etc.

The condition precedent to any transfer, as will be seen from this language, is the written permission of the board of excise to the transfer. It is, therefore, a personal privilege, which is not the subject of assignment or transfer without such permission, and we agree with the view of the judge below “ that it is entirely optional with the excise commissioners to say whether they will allow a transfer of such license,’’ and that the interest or right which the debtor has in such license is not property which can be reached by a creditor’s action, as the court has no power to enforce its transfer. There being no ground alleged upon which the action itself can be maintained, the incidental provision of relief asked for pendente Ute of an injunction and receiver was properly refused.

We think, therefore, that the order should be‘affirmed, with costs.

Yah Bruht, P. J., O'Brieh and Follett, JJ., concur.


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    In the Matter of the Application of The Manhattan Railway Co., Resp't, to Acquire Title to Land of John L. Stroub, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Condemnation proceedings—Appointment op commissioners—Correction op omissions.
    Where the court in adjudging condemnation of property for the use of a railroad fails to appoint commissioners of appraisal or to fix the time for the first meeting, it has power under § 724 of the Code to supply such omission by order on proper application and proper notice.
    2. Same—Time op meeting.
    A direction that the first meeting of the commissioners take place on a date five days from that of the order and three days after its entry is improper, as it does not give the necessary time for notice to those who have appeared, as required by § 8869.
    Appeal from order appointing commissioners of appraisal in proceedings to acquire title to land.

      Smith & Perkins (Edward C. Perkins, of counsel), for app'lt; Davies, Short & Townsend (Alexander S. Lyman and Julien T. Davies, of counsel), for resp't.
   Van Brunt, P. J.

Upon an examination of the sections of the Code under which this proceeding was taken, it will be noticed that the proceeding was before the court, and not before a judge, and that by § 3369 it is provided what the judgment is to contain which is to be entered pursuant to the direction of the court or referee before whom the issues have been tried. This section provides that if the decision is in favor of the plaintiff, or if no answer has been interposed, and it appears from the petition th,at the plaintiff is entitled to the relief demanded, judgment shall be entered adjudging that the condemnation of the property described is necessary for the public use, and that the plaintiff is entitled to take and hold the property for the public use specified, upon making compensation therefor, and that the court shall thereupon appoint three disinterested and competent freeholders, etc. It is apparent from this language of the section that it was the intention of the legislature that the court, by the judgment which was to be entered upon the decision of the court or referee, should appoint the commissioners, and also should by that judgment fix the time and place for the first meeting of the commissioners; but if the court omitted, in the entering of the judgment, to do any of these things in the judgment directed to be entered, the applicant is not without remedy. Because by § 3368 it is provided that the provisions of title 1 of chapter 8 of this act shall also apply to proceedings had under this title. Title 1 of chapter 8 relates to mistakes, omissions, defects and irregularities; and by § 724 of the Code, which is included in that title, the court may supply an omission to any proceeding; and where a proceeding taken by a party fails to conform to a provision of this act, the court may, in like manner and upon like terms, permit an amendment thereof to conform it to the provision. Therefore, the court having failed to appoint the commissioners by the judgment, as contemplated by | 3369, such omission, upon proper application, and upon proper notice, may be supplied, which is what was done in the case at bar.

The court also attempted to supply the other omission, viz., the fixing of the time and place for the first meeting of the commissioners. The order appointing the commissioners was dated February 23, entered February 25, and directs that the first meeting of the commissioners be held on February 28, 1893; and, by so doing, did not give necessary time in order that the last clause of § 3369 could be applied, which provides that, if a trial has been had, at least eight days notice of such appointment must be given to all defendants who have appeared, the appointment referred to being the appointment of the commissioners, and of the time and place of the first hearing. The time fixed by this clause of the section the court had no power to shorten.

We think, therefore, that the order appealed from should be modified by reversing that part of the order which fixed the time for the first meeting of the commissioners, with leave to apply at the special term for the supplying of the omission which the reversal of that portion of the order would leave, without costs to either party.

O’Brien and Follett, JJ., concur.