author: Patterson, J.

text:
    Abbie S. Nash et al., Pl'ffs, v. William P. Hall et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed February, 1895.)

    1, Injunction—Corporation.
    An injunction will not issue against corporate officers to enjoin them from transferring stock wrongfully issued to themselves, where it is not shown that they are not able to pay the full price of the stock or to respond to a judgment for the difference between the price paid and the value of the stock.
    2. Same.
    An injunction will not be granted, at the suit of a stockholder, to restrain the payment of an unauthorized salary to a corporate officer.
    Motion to continue pendente lite an inj"unction.

      John Lindley (Austin Abbott, of counsel), for pl’ffs; Witter & Kenyon (Charles M. Karle, Robert N. Kenyon, and J. S. L'Amoreaux, of counsel), for def’ts.
   Patterson, J.

This is an application to continue, pending suit, an injunction which was issued on the 20th day of November, 1894, and to the restraining clause of. which strict attention must be paid in order that the precise questions of fact which are to be considered may not be confused with other matters which are contained in the papers submitted on the motion. • The restraint contained in the order is:

“ That the defendants be, and they hereby are, enjoined, until the further order of this court, from giving away or selling for inadequate or illegal consideration any of the goods, property or capital stock of the said company [the Hall Signal Company], and from wasting any part thereof, and from transferring any of the capital stock of said company now or at any time held by said defendants, or by any one in their behalf, which stock has been issued for an adequate or illegal consideration; and the said defendants, and each of them, is also enjoined from disposing of or paying out any of the said corporate funds by.way of gratuities', gifts, ■or in any manner than in the ordinary course of transacting the business for which said corporation was organized. ”

The defendants in the action are: William P. Hall (who was and is the president of the Hall Signal Company), Frederick P. Mitchell (who seems to have been a special agent for that company), Winfield S. Gilmore, S. Marsh Young, William F. Cochran, Irving Ingraham, Charles E. Parker, John L. Houston, Walsingham A Miller, W. Seward Webb, Thomas L. James, William J. Arkell, the Hall Signal Company, and other defendants sued by fictitious names. The plaintiffs in the action are .stockholders of the Hall Signal Company, the plaintiff Nash holding thirteen shares of the stock, and the plaintiff Ulrich holding 100 shares of the stock; that is to say, the three plaintiffs holding but 113 shares out of 20,000 shares.

A preliminary question arises respecting the right of the plaintiffs to maintain this action under the circumstances set forth in the ■complaint, and it is suggested that, in consequence of the small interest which these plaintiffs represent, and the attitude of one Coit, who is the principal affiant for the plaintiffs, to the whole subject-matter of the action, the inference is plain that the suit is not brought in good faith, but for some ulterior purpose best 'known to Mr. Coit, and that these plaintiffs are merely nominal plaintiffs, who have been induced to bring this suit for some illegitimate object sought to be accomplished by Coit. The comparative smallness of the interest of these plaintiffs as stockholders is not a matter which the court will consider at this time. There is no reason why, if wrong has been done or is likely to be done, the holder of one share should not be as fully protected in his rights as the largest holder; and there is nothing before the court to show, at present, that Coit’s attitude to the subject, as the instigator of the suit, is such as to require on ■ that ground alone a dissolution of the injunction now in force. The technical right of the plaintiffs to maintain the action for some relief seems to be •established. The affairs of the corporation are now being administered by the very persons who are charged with the perpetration of the acts alleged in 'the complaint to be unlawful, and, although some of the defendants are directors not implicated in any charge of fraud, yet it is clear that the executive officers of the corporation who would be the proper persons to institute and carry on suits, could scarcely be expected to take proceedings against themselves, and the authority for such a suit as this is to be found Kelsey v. Sargent, 40 Hun, 150, and the many cases cited in the opinion of the court in that case, and to which it is now unnecessary to make further reference.

It should be remarked at the beginning, in considering the subjects presented by the papers on this motion, that, with reference to certain of the defendants on the record, there is no charge whatever made of fraudulent or unlawful conduct, or participation in any act mentioned in the complaint, as a ground for the maintenance of the injunction. The defendants Webb, James, Miller, and Houston became connected with the company as directors long after every one of the particular facts complained of was performed, and there is nothing whatever to be imputed to them of wrong in any of the transactions connected with this matter. The attitude in which they stand to the subject is simply that of directors of the corporation and holders of certain shares of the stock said to have been unlawfully and improperly issued hy the ■officers of the company, and the transfer and voting upon which is sought to be restrained; and their principal relation to the subject-matter of the suit seems to be, at most, that of alleged holders of shares, the title to which is impeached in their hands in consequence of the issue being alleged to be fraudulent or in■effectual as against the company, and it being claimed they áre not holders of those shares for value or in such a way as would •estop the company from claiming the cancellation or retransfer of those shares. But, with regard to the defendants who were the officers of the company or its directors at the times mentioned in the complaint, there are serious questions which will require at the trial very careful attention and examination. It appears from the allegations of the complaint, which contains the only detailed account of the transactions, that the Hall Signal Company is a corporation created under the laws of the state of Maine, and had at the outset capital stock of $1,000,000, divided into 10,000 shares, of the par value of $100 each, 9,000 shares being common stock, and 1,000 shares being preferred stock; that the company was organized to make, sell, and put up railway signals and signal devices, under the patents of one Hall; that on the 22d of November, 1889, the board of directors of that-company passed a resolution which provided that the preferred stock of the company, then in the treasury and unsold, should be held at $100 a share; that on.the 6th of January, 1890, there belonged to the Hall Signal Company, and was then in its treasury, 1,000 shares of the preferred stock, and at least 4,745 shares of the common stock; that in June, 1890, the directors of the company increased their number to seven members, and that -at a stockhdlders’ meeting in that month, the defendant Cochran wvas elected a director, but it does not appear that the full number of seven directors was made up until the year 1894. It is further alleged in the complaint that on or about January 16, 1891, William P. Hall, being president of the company, sold 270 shares of the company’s preferred stock to William F. Cochran for $85 a share, and 214 shares of the common stock at $50 a share, thus making the sale of the preferred stock at $15 less than the fixed price, and the common stock at $25 a share less than the fixed price; and that at the meeting of the directors, held on that day, at which Hall, Cochran, Gilmore and Ingraham were present, and at which the presence of Hall and Cochran was necessary to make a quorum, a resolution was adopted by the vote of those present to ratify that sale, and it is claimed that Cochran now holds the shares which were sold to him irregularly, as alleged. It is further claimed that at that same meeting, at which the sales were made to Cochran, a resolution was passed that the balance of the company’s stock be held at par, and that none be sold at a less price, except on a unanimous vote of the directors ; and it is also claimed that that resolution still exists in full'force, and has never been rescinded, except in so far as it has been wrongfully modified by some of the defendants acting as directors and for their own private advantage. It is further alleged that at a meeting of the directors held May, 1891, authority was given to sell 200 shares of the stock, at $90 a share, and that at this meeting Cochran, Ingraham, Hollister, Gilmore, and William P. Hall were present, and that the presence of Gilmore and Hall was necessary to make a quorum ; and in October, 1891, at a meeting of the directors, five being present, a resolution was passed that the company having lately acquired and secured the control of some improved mechanical signals and appliances pertaining to their business, and it being necessary to have some cash capital to place the same in the market, and in order to raise that capital it was voted that the stockholders of record on October 20,1891, be given an option to purchrse an equal amount of treasury stock to their present holdings at $50 per share, and said option to hold good until November 20, 1891. It is then alleged that said directors and oneAlvah W. Hall held as stockholders nearly all of the stock which had heretofore been issued, and which was then outstanding and not in the treasury of the company, and- that hence those were the persons to be benefited by this resolution, that they might get. the stock at half its value, there being in connection with the statement an allegation that the stock was salable at the time this, last resolution was passed, and was actually sold at or near par. It is further alleged in the complaint that in the months of March,. April, and May, 1892, an authorized agent of the Hall Signal Company represented to intending purchasers of the stock that the salary of the president did not exceed $3,600 a year, and that the treasurer was acting as such without any compensation, and that the shares were bought by various persons, including these plaintiffs, upon the faith of such representations: but, notwithstanding that, the then acting directors of the company passed a resolution by which the defendant William P. Hall was authorized to purchase from the company 500 shares of the full paid common stock at $50 a share,. and that such sale was authorized ostensibly in order to remunerate Hall for extraordinary services rendered to the company, and that at the meeting at which this was done there were only three directors present, one of whom was Hall, the beneficiary of the resolution, and that Hall, knowing of the limitation, of the prices of the stock, and being a director and president of the company, took from the treasury of the company other shares, some of which were sold at $90 a share, thus taking to himself about $18,800, for which he has never accounted to the company, and that at this time the stock was actually selling at $90 a share and upwards. It further appears that on or about June 8, 1892, a stockholders’ meeting was held in Maine, and Gilmore, one of the directors, represented at this meeting that an additional capital of $1,000,000 was required, making $2,000,000 in all; that thereupon a resolution was passed authorizing the increase of the capital by the issuing of 10,000 shares of common stock, and that such stock might be issued for the purpose of purchasing property, patents, and rights, as the directors of the corporation might deem for its best interest, and that • thereupon Gilmore, Cochran, and William P. Hall, acting as a board of directors, did issue 10,000 shares of the new stock in payment for patents which were then valued at the full sum of $1,000,000; that thereupon a circular was issued, signed by William P. Hall, the president of the company and the stockholders of the Hall Signal Company, offering additional shares of the new stock of the company, to the amount of twenty per cent of the holdings of the stockholders of the old stock, at the rate of $50 a share, the proceeds or such purchase to be used for the purchase of a controlling interest of the Johnson Signal Company, and for the further development of the business of the company. This Johnson Signal Company was a New Jersey corporation, organized for the purpose of making railway signals, and the directors of the Hall Signal Company undertook to buy 2,000 shares of the stock of that company for the sum of $100,000, the object of this being undoubtedly to secure a controlling interest in the stock of a rival company. It is alleged that the amount paid was in excess of the value of the shares of the Johnson Signal Company, and it is also alleged that instead of applying the moneys received from the sale of the 2,000 shares of the Hall Signal Company stock the directors only applied $34,400 to the purchase of the Johnson Signal Company stock, leaving an indebtedness of about $50,000 on that account, to secure the payment of which they left all of the Johnson Signal Company stock for which they had contracted, in the hands of a trustee, and also pledged other securities belonging to the Hall Signal Company as further security for the Johnson Signal Company stock, and that a large portion of that still remains unpaid, and that the moneys and property of the Hall Signal Company have been grossly mismanaged and wasted in this transaction. The complaint also sets forth other acts of mismanagement on the part of the directors, William P. Hall, Gilmore, and others, and then proceeds to charge that, in the years of 1892 and 1893, one Adoniram J. Wilson was employed as a superintendent of the Hall Signal Company, and that he made certain inventions and improvements which affected the patented improvements or devices which belonged to the Hall Signal Company, and which were regarded as being the property of that company, and that on August 4, 1892, he assigned his inventions and improvements to the company; that about a year and a half after this assignment of August 4,1892, and without any further assignment or consideration whatever, the defendants Willliam P. Hall, Parker, and Gilmore, desiring to obtain possession of 3,000 shares of the stock of the company, passed a resolution, at a meeting of the board of directors held in the city of New York, in the following words:

“ That as has been agreed between the Hall Signal Company and Adoniram J. Wilson that the latter should assign and transfer to said company his entire interest in all the inventions of railroad signaling devices in and for the United States, and in all United States patents granted therefor, and that said company should pay the said Wilson suitable compensation therefor, to be agreed upon, and as the said Wilson had from time to time so-transferred his inventions of the United States applications and, patents to the Hall Signal-Company, and in pursuance of the said agreement; and as, in the judgment of the board of directors, the-United States applications and patents are equal in value to three thousand shares of the common stock of this company, and the said Wilson has agreed to accept that amount of stock in full payment to date for all such inventions, applications, and patents,— W. S. Gilmore, treasurer, be, and he is hereby, authorized and directed to transfer and cause to be transferred to Adoniram J, Wilson three thousand shares of the full-paid common capital stock of the Hall Signal Company out of the balance, of ten thousand shares of stock set over and assigned and transferred to this company by William P. Hall and W. S. Gilmore on July 6, 1892, and the said three thousand shares to be accepted by Adoniram J. Wilson in full payment to date for any and all claims of the= said Wilson against the Hall Signal Company for said applications and patents.”

It is further set forth in the complaint that the only directors present at this time were Hall, Parker, and Gilmore; that they did not constitute a quorum of directors, and that if they had donoso the votes of at least two would have been necessary; that they caused the resolution to be entered in the minutes of the board of directors of the said Hall Signal Company, under date of December 22,1893, as if it were a valid act of said corporation by its board; that the said Wilson paid no consideration for the last-mentioned 3,000 shares of stock, and never received nor controlled nor disposed of said stock for his own benefit, but that the entire transaction was a device and pretext to enable the said president, William P. Hall, and the said treasurer, Winfield S. Gilmore, to take and dispose of the stock at their own pleasure, which they did. It is further alleged that on the 4th day of May, 1894, Hall; Parker, Miller, and Gilmore, acting as directors, passed a resolution fixing the salary of Hall, as president, at $10,000 a year from the 1st of January, 1894, and that Hall has been receiving pay* ment of a salary at that amount; that Hall voted for the resolution, or was present, and his presence was necessary to make a quorum. The complaint then proceeds to state various acts of mismanagement of the directors and officers of the corporation, and violations of the laws of the state of Maine, obligatory upon corporations of this character; the failure to keep proper books and make proper entries, giving the details or an account of these various alleged unlawful transactions; the falsification of the records; and particularly that on the 22d of December, 1893, Wilson, without receiving any consideration at all, transferred 1.000 of the 3,000 shares to the defendant Webb, and 2,000 of such shares to the defendant Arkell, and that Arkell has transferred 150 shares to other parties, and that those shares are now held without consideration, and that all of the directors except Webb, James, Arkell, and Mitchell have neglected their duty of keeping an account or records; and other allegations of improper conduct. The relief prayed for is that the 270 shares of preferred stock, and 214 shares of the common stock, sold to Cochran, be declared to have been sold without authority, and that the defendants Cochran, Hall, Gilmore, and Ingraham be directed to pay into the treasury of the Hall Signal Company the difference between the price paid and the price fixed as the value of these shares; that the same relief be granted as to the 500 shares of common stock sold to William P. Hall; that a discovery be ordered as against the defendants Hall, Gilmore, Young, Cochran, Ingraham, Parker, and Houston as to 2,000 of the shares of the common stock of the company, and that they be ordered to pay forthwith into the treasury of the company, and account for all profits which any of them may have received or derived from such 2.000 shares, and that they also pay into the treasury such sum or sums as may be found on such accounting to have been lost, wasted, misapplied, or diverted from the purpose for which such sum or sums were contributed, by reason of the said transactions set forth in the complaint; that the transfer of the 3,000 shares of the common stock of the corporation to Wilson be declared to be illegal and void, and the defendants Hall, Parker, and Gilmore, and such other of the directors who have assented thereto, and any of the other defendants herein who have profited thereby, in whole or in part, may be ordered and directed to' forthwith transfer and deliver those shares to the Hall Signal Company, or pay into the treasury of the corporation the value of such shares as may not be transferred to the corporation, and that the defendants who have profited thereby be ordered and directed by this court to forthwith pay into the treasury of the corporation the full value of such shares as they may have taken, and that the court adjudge and decree that the act of the directors in attempting to increase the salary of William P. Hall be declared to be illegal and void, and. that the payments made by virtue of the resolution of May 4,1894, be restored to the treasury of the corporation, and then that an injunction be issued substantially in the words of the temporary injunction now under consideration, and that the defendants Hall, Gilmore, and Parker be enjoined from exercising as an executive. committee any of the duties of directors of the corporation or any of the powers of directors, and that the individual defendants be enjoined until the further order of the court from voting upon the stock which has been specifically referred to, and that the servants and agents of the corporation be enjoined from transferring any of the stock thus referred to, and for other relief.

I have gone thus particularly into the averments-of the complaint in order that the scope of the inquiry may be limited to those matters which stand on the record as specific accusations of wrong-doing against the various defendants, and for the reason that in actions of this kind general charges are of no consequence whatever, and, when grave imputations are made of the character here presented, the parties against whom they are made should be called upon to respond only to the specific things alleged against them. Taking up the answers that have been interposed, all of the material charges are denied, justified, or sought to be explained. All the alleged equities of the complaint are denied under oath, and it is claimed that all sales of shares were made by due authority of the board of directors. There is a charge made in some -of the affidavits of the plaintiff used on this motion, but not referred to in the complaint, respecting a purpose of the directors of the Hall Signal Company to transfer its rights and business to the General Electric Company. This intention imputed to the directors of the Hall Signal Company is specifically denied, and there is no cause whatever for an injunction to issue concerning that accusation, because the directors of this company not only disclaim any such purpose, but they are powerless to make any valid transfer of the character referred to ; it would be merely a void transaction on the part of the directors. Whether, under the law of the state of Maine, such a transfer might be made by the stockholders is a question not to be considered now. It must be left to the determination of the courts of that state as to whether or not it is competent for a corporation, with the assent of its stockholders, to make such a disposition of its property. This question does not arise under this complaint, and it is not a question we are now -called upon to decide. Taking up the specific allegations referred to in the complaint, as constituting fraudulent or wrongful conduct on the part of the directors of the Hall Signal Company, the first answer that is made by the defendants is that all of their acts and doings have been ratified by the shareholders. I have carefully examined all of the papers upon this subject of ratification, and I must say that, upon the presentation as made, I am not at all satisfied that there has been any such ratification as would constitute an acceptance or adoption of the stockholders all of the acts complained of. This alleged ratification seems to have been made pursuant to some permission of a special act of the legislature of the state of Maine, and the stockholders seem to have ratified only such transactions as were spread upon the minutes of the Hall Signal Company. I am not at all satisfied that these transactions in their real character were so fully spread upon the records as to be intelligible to all the stockholders who were present in person or by proxy at the meeting at which the alleged ratification took place. But I do not consider the question of ratification as oeing, at this time, a radical one, for, as the facts are shown, the merits of the •controversy may be disposed of, so far as this motion is concerned, without reference to that. Concerning the maintenance of this temporary injunction, the real question is, is there any occasion for any restraint whatever upon any of the parties at the present time ? We will assume that the action is properly brought. We will also assume that certain of these defendants may be responsible for their acts to the corporation, and, under the circumstances of this case, may be required to account in this action, and that they may by final judgment be compelled to pay moneys into this corporation ; but it does not follow therefrom that an injunction is necessary to the preservation or protection of any right which these plaintiffs or other stockholders may have. Concerning the 270 shares of preferred stock, and 'the 214 shares of the common stock, there can be no doubt that William R Cochran had a perfect right to buy those shares. The only thing that constituted an apparent wrong in the matter was selling them at a lower price than that which was fixed, for them by the corporation, if that restriction actually remained as applicable to those shares at the time they were sold, which is doubtful. This would leave the case merely as one in which Mr. Cochran, or those who sold him the shares, would be liable to the corporation fof $15 a share on the preferred stock, and $25 a share on the common stock; and there is no allegation whatever of insolvency of Mr. Cochran or the other parties, or that they are not able to pay the full price, or that if a judgment is rendered against him or them in this action for that difference he or they will not be able to respond to it, and precisely the same thing may be said with reference to the 500 shares of common stock' issued to Hall at $50 a share instead of par. If the resolution under which they were sold was not valid, then Mr. Hall is indebted for $50 a share of that stock to the corporation, for he knew of the limitation; and there is no allegation whatever that he is insolvent or is not able to pay the additional sum; and a money judgment is asked for in each case, and granting it would necessarily result in confirming their title to the shares. Concerning the 2,000 shares of the Hall Signal Company issued in the matter of the purchase of the Johnson Signal Company stock, it is not shown who. is the holder of those shares, nor where they are, nor in whose possession they are, nor whether they have been sold; and the only relief that can be awarded as to them would be that the parties who are implicated in the disposition of those 2,000 shares shall account for all moneys or profits which have been received upon them, and shall pay the moneys into the treasury of the Hall Signal Company ; but there is no necessity for an injunction with reference to those shares, and, indeed, there are no facts stated in respect of which restraint can be put upon the holder of a specific share or number of shares; or, in other words, there is no way of ascertaining as against whom an injunction should issue, or against what shares an injunction would be made operative in case one were to issue. The serious feature of the matter, and the one in respect of which on the argument of this case I was strongly impressed by the plaintiffs’ contention, relates to the 3,000 shares of stock issued to Wilson ; but an examination of the papers, however, makes it entirely clear that so far, at least, as the present status of those shares is concerned, the charges of fraud which have been urged against the various parties are not made out in such a way as to induce the court to pass upon the question of fact adversely to the holders of those shares. The plaintiffs have undertaken to present to the. court proof of the fraudulent issue of these 3,000 shares of stock, but in their effort to present that proof they have produced and presented evidence directly to the contrary. The history of these 3,000 shares must be borne in mind. All or most of this stock originally was issued for patents, for patent rights or improvements in railway signaling, and almost all of the capital stock of this corporation, both its first and second issue, seems to have been put out for no other consideration than patent rights and improvements. Wilson was an inventor. He owned patents for improvements, if not for original inventions, and they were transferred to and are used by this Hall Signal Company. The claim made by the plaintiffs that all his inventions and improvements and transfers thereof to the company were merely in pursuance of a duty which he owed to the company, and a right which the company had to his inventions, without further com' pensation than that which consisted in the payment to him of a salary, has been utterly destroyed by the examination of Wilson, which was taken by the plaintiffs, and which they now present as part of their proofs. I cannot assume that this statement of Wilsbn is deliberate perjury, or that Hall has been guilty of suborna lion of perjury. They testified and it is shown clearly, that from the beginning Wilson was entitled to compensation for the transfer of his patents to the Hall Signal Company; that it was left undetermined as to what that compensation should be until finally it was agreed that the 3,000 shares should be issued to him in full payment for his patents, among which he enumerates some that are stated to be the most valuable and useful of all those connected with the whole system of railway signals. If they are the most valuable, and that is not controverted by the plaintiffs, the amount paid for them would certainly seem not to be unreasonable, in view of the large amount of stock which was issued for other patents not possessing the same value; but, however that may be, it stands upon this record as clearly established that these 3,000 shares did become the property of Wffson, and were given to him in payment of what was due to him for his inventions. Now, when those shares became the property of Wilson, lie had an absolute right to dispose of them just as he pleased; and he might sell them or give them away or intrust them to Mr. Hall to be used as he might deem best for the interest of the company, in bringing in men of means and influence whose relation to the company would increase its business and secure its success, the essential thing being that there was an actual honest issue of the stock, in the first place, to Mr. Wilson ; and I am not able to say, on these papers, that that was not so, but, on the contrary, I must conclude, at this stage of the case at least, that those shares were issued for a good consideration to Mr. Wilson, and that his transfer of them has vested a good title as against the company to his transferees, Arkell and Webb, it not being charged that either Arkell or Webb was a party to any fraud, and Arkell swearing in his answer that he paid consideration for the shares transferred to him. Mr. Webb has not been served with process nor with the injunction, but 1 see nothing whatever in the case that would authorize its maintenance as against him. Concerning the payment of unauthorized salary, of course there is no occasion for an injunction. If that salary is really unauthorized, a person receiving it can be compelled to make restitution. There are no other matters involved in this motion which require particular consideration. On the whole case I am, therefore, of the opinion that the motion to continue the temporary injunction should be denied,- and that the injunction be vacated, with $10 costs, and upon the ground particularly that, whatever relief the plaintiffs may be entitled to in this action, there is no necessity and no propriety for any restraint of the court upon any of the holders of this stock at the present time, nor for its interference with the management of this foreign corporation or of its directors, the stockholders' being amply protected by such remedy as may be open to them to compel a restitution from solvent persons of the moneys on an accounting for the value of shares of stock, if such sharés have been irregularly issued, and that value is properly recoverable by the corporation. IE there were allegations or evidence of insolvency or inability of any of the parties inculpated to make payment of any moneys which may be adjudged to be payable by reason of the matters complained of, a different result might follow, and to the extent of enjoining the transfer on the books of the company of the shares which, according to the plaintiffs’ own showing, are paid for in part, at least, but no such pretense is made.


source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    Noyes F. Palmer, Resp’t, v. City of Brooklyn, App’lt. (Two cases.)

      (Brooklyn City Court, General Term,

      Filed February 25, 1895.)

    Municipal corporations—Street improvements.
    Section 6, tit. 19, chap. 583 oí 1888, does not relieve the city of Brooklyn from liability, where the work is discontinued by an affirmative act of the city, and an assessment thereby prevented.
    Appeal from a judgment in favor of plaintiff
    The opinion at special term is as follows (Clement, C. J.):
    “The plaintiff was employed as surveyor by the proper officers of the city, to make the necessary maps which were required in two proceedings for the opening of Railroad avenue and Barbey street. His compensation was rixed by the ordinances of the city. In other words, the plaintiff did not agree to do his word on a speculative or contingent fee. if the contention of the counsel for the city is correct, no competent surveyor would perform such work for the city, for he would be compelled to take the chances of the' receipt of compensation for his services. The plaintiff performed his work and delivered his maps to the corporation counsel. Subsequently the common conucil passed resolutions which rescinded their prior action. I am of opinion that the power is in that body so to do, under the general welfare clause of the charter, and for the reason that the title of the city in the new street does not vest until the confirmation of the assessment for the improvement. Laws 1888, p. 1085, tit. 19, § 31. The original proceedings may , be defective or without jurisdiction, or it may appear that the common council made a mistake in their determination of the necessity of opening the street. Section 6 of title 19 o fthe charter in no way prevents a recovery in these actions. The latter clause of che section was originally passed in 1859 (chapter 213, § 6), and was been construed by the court of appeals in Sage v. City of Brooklyn, 89 N. Y. 189, 201. Chief Judge Andrews there said: ‘If, however, it is construed as relating simply to the expense of regulating streets, to which it was confined in the original act from which it was taken (chapter 213, Laws 1859), or is intended only to declare the general principle that the expense of street openings shall be a local and not a general charge, it is not subject to criticism.’ Section 12 of title 19 has no application to the cases before me,or the reason that no report can ever be confirmed. That section would seem only to require that the expenses should be taxed by the supreme court, in order to protect the property owners against excessive or illegal charges for searcher’s or surveyor’s fees. The plaintiff only seeks to recover his fees as fixed by the ordinances. Judgment for plaintiff on demurrer in each case, with leave to defendant to answer on the usual terms.”

      Albert G. McDonald, for app’lt; John P. Adams, for resp’t.
   Van Wyck, J.

It appears, from the complaint in each of these actions, that plaintiff sues to recover compensation for making for the city the necessary maps required in the proceedings to open a street under the charter (Laws 1888, c. 583, tit. 19) ; that the defendant employed the plaintiff to- make maps at the proper stage of the proceedings, which maps he duly made and delivered to defendant, and that the amount claimed for such services is fixed by the ordinances of the city; that defendant, thereafter and before the assessments were imposed, rescinded the resolution directing. and authorizing the proceedings, and thereby abandoned and discontinued them while in their incomplete condition. The contení tian of appellant is that the city is specially exempted from alliability for any expense incurred in opening streets (Id. § 6), "and that plaintiff must look to the lien of the assessment for such expenses upon the property benefited by the new street (Id. § 1). It was the manifest intention of the legislature to declare, in these provisions, that the city shall not be primarily liable for any of the expenses incurred for the opening of streets, provided the city pursued the proceedings to completion in duly laying and collecting the assessments therefor. When the city accepts such work after employment, it cannot avoid liability to such surveyor by an appeal to section 6, if it has, by affirmative action, rescinded anddiscontinued the proceedings, and in this way prevented the posibility of levying and collecting an assessment for such expenses upon the property to be benefited by such street opening. This view seems to us to be fully sustained by the authorities. Payne v. City of Brooklyn, 52 Hun, 390; 24 St. Rep. 427; Weston v. City of Syracuse, 63 id. 501 ; Reilly v. City of Albany, 112 N. Y. 30-42; 20 St. Rep. 560; Sage v. City of Brooklyn, 89 N. Y. 189; McCormack v. City of Brooklyn, 108 id. 49 ; 12 St. Rep. 817; Donnelly v. City of Brooklyn, 121 N. Y. 9; 26 St. Rep. 27.

Judgments affirmed, with costs.


author: Gildersleeve, J.

text:
    Susan Walther, App’lt, v. American District Telegraph Company, Resp’t.

      (New York Superior Court, General Term,

      Filed January 21, 1895.)

    Neligence—Proof.
    In an action for negligence in permitting a wire on the roof of a building to become loose, the evidence was held sufficient to go to the jury on the question of ownership and control of the wire, and to justify the jury in their conclusion that the wire was owned and controlled by the defendant, in the absence of any denial or explanation.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Henry W. Bates, for app’lt; George H. Fearons and Rush Taggart, for appellee.
   Gildersleeve, J.

This is an action for damages for personal injuries sustained by plaintiff by reason of the alleged negligence of defendant in permitting a wire on the roof of Ho. 207 East Fourteenth street, in this city, to become loose from its fastenings, and permitting it to remain in that unsafe condition. The facts of the case, as fairly established by the evidence, are as follows: On or about the 3d day of April, 1889, the plaintiff, who was the janitress of the Flathouse building Ho. 207 East Fourteenth street, went upon the roof of said building, as she had a lawful right to do, about five o’clock in the afternoon, to take in clothing which had been spread upon the clotheslines by the washerwoman dur< ing the day. As she stepped upon the roof, she heard a knock upon the dumb-waiter shaft, which apparently was used as a signal by some of the tenants. The plaintiff started across the roof to see if the signal was intended for her, and, in doing so, she tripped over a fallen wire, and fell heavily, and was severely injured. Upon the trial the jury rendered a verdict in favor of plaintiff.for $4,200; and from the judgment entered thereon, and from the order denying defendant’s motion for a new trial, the defendant appeals to the general term.

The defendant contends that there is not sufficient evidence to connect the defendant with the accident; that there is no proof of the ownership of the wire by defendant, or of the responsibility of defendant for keeping it in proper condition. It is also contended that plaintiff was guilty of contributory negligence. It seems to us, however, that there is certainly sufficient testimony on the question of the ownership and control of the wire by defendant to call for an explanation from the defendant; and that, in the absence of such explanation, a conclusion is warranted that the defendant did own and control the wire that caused the accident. See Elze v. Baumann, 2 Misc. R. 72; 49 St. Rep. 629 ; Brooks v. Steen, 6 Hun, 516. The information on the ownership of the wire was peculiarly within the knowledge of the defendant, and its neglect to offer any evidence on that point may be taken as suspicious, in view of the plaintiff’s allegations and proof,' and the jury might reasonably and properly infer that the testimony, if offered, would have been adverse to the defendant. See Brooks v. Steen, supra; People v. Mc Whorter, 4 Barb. 438; Bleecker v. Johnston, 59 N. Y. 309, 313. The plaintiff’s evidence indicates that but ohe wire ran from the Flathouse in question, in which was a messenger call, to the building occupied by the defendant’s office, in which building there was no other messenger call offie'e than that of defendant. From that evidence, undenied and unexplained by any testimony offered by defendant, who was certainly in a position to know, the only reasonable conclusion must be that the wire was owned or controlled by the defendant. It therefore seems to us that there was evidence enough to go to the jury on this question of ownership and control of the wire, and that the "jury were justified in their conclusions that the wire was owned and controlled by the defendant, and that the defendant was negligent in permitting the wire to remain in a defective" and unsafe condition. It also seems to us that the plaintiff’s evidence fairly shaw's an absence of contributory negligence. The defendant offered no evidence tending to show any contributory negligence on the plaintiff’s part. This necessary fact to plaintiff’s recovery may,- therefore, be said to be established. We do not find any eriors in the rulings or in the charge that are of sufficient importance to warrant a reversal of .the judgment. The judgment and order appealed from must be affirmed, with costs,

All concur.


author: Hardin, P. J.

text:
    Addie S. Rutherford, App’lt, v. Henry C. Soop, as Executor, etc., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Executors—Birr of particulars.
    An executor will not be required to furnish a hill of particulars of his defenses, upon a reference of a claim against a decedent’s estate.
    Appeal from an order denying a motion made by the. plaintiff to compel the defendant to make specific answer under oath to the plaintiff’s claim, and requiring the defendant “ to serve upon the plaintiff herein a duly-verified amended answer herein, setting ferth and separately stating all defenses claimed to be made by the said defendant to the matters alleged in the plaintiff’s complaint herein ; or that the defendant fully and fairly apprise, in writing the plaintiff of all grounds upon which he will insist on the trial of this action in opposition to the above mentioned claim of the plaintiff; or that the defendant fully and fairly apprise the plaintiff of his reasons for disputing the said claim.”
    A claim against the testator was exhibited to the executor on the 20th day of April, 1893, and a notice of the dispute of the claim was served on the 28th of April, 1893. The agreement to refer was signed October 13, 1893, and was approved by the surrogate October 16, 1893. The claim as made was as follows :
    " The Estate of John M. Rutherford, Deceased, to Mrs. Addie S. Rutherford.
    Dr,
    To board, lodging, washing, mending, clothing, use of rooms, care, and nursing during sickness and other occasions of and for the said deceased and his wife, from November 20th, 1880, to and including January 28, 1893, eleven years, one month, and twenty-eight days................. ...........
    $10,000 00
    To services rendered the said deceased in assisting in the care of his business during the same period____
    2,000 00
    $12,000 00
    Upon which the following payments have been made:
    October 27, 1885................... $30 00
    July 16, 1890...................... 10 00
    Nov. 27, 1890...................... 20 00
    $ 60 00
    $11,940 00”
    Subjoined to the claim was the affidavit of the plaintiff, in the usual form in such cases, sworn to the 20th day of April, 1893. The notice served by the executor was in the following language :
    “ To Mrs. A. S. Rutherford: You will please take notice that I doubt the justice and validity of your claim of $11,940.00 against the above-named estate, and I do hereby dispute the same, and offer to refer it, under the statute, to some suitable and proper person as referee, to be approved by- the surrogate.
    • H. G. Soop, Executor.”
    Thereafter, an instrument reciting the presentment of the claim ■and the dispute and rejection thereof, was signed, in which instrument it was stated and agreed that “ the said matter in controversy be referred to Hon. William 0. Lamont, of Cobleskill, N. Y., counselor at law, as sole referee to hear and determine the same. Dated October 13, 1893.” In the affidavit presented in behalf of defendant at the special term it was stated that the defendant demanded a bill of items, but no itemized account had been presented, or any bill of particulars served ; and the executor -added: “That deponent cannot safely make or serve a verified •answer to the claim or complaint of the above named plaintiff until he is furnished with an itemized account of such claim, showing when such cause or causes of action accrued, what the services rendered were for, and by whose request, and the extent and character of the business transacted by said plaintiff for the said John H. Rutherford.” In the memorandum prepared by the judge who heard the motion at special term he said: “I do not think the court has the power to grant the relief which the plaintiff here asks. * * *• If I am wrong in my judgment of the power of the court, the same considerations would lead to the refusal to exercise the discretion of the court to grant the plaintiff’s request.”'

      Robert T. Johnsoa, for app'lt; F. M. Andrus, for resp’t.
   Hardin, P. J.

In Bucklin v. Chapin, 1 Lans. 443, it was held that a reference under the statute stands in place of an action, and the entry of an order to refer must be deemed its commencement. In Tracy v. Suydam, 30 Barb. 110, it was held that, where parties; agree to refer under the statute—

“ The agreement to refer need not notice matters of defense to-the claim. The account presented is, in effect, the plaintiff’s complaint ; and, there being no pleadings, and no provision in the statute for pleadings, the defendant is limited to no particular defense ; and, consequently, any and every legal defense against the-claim must necessarily be available.”

And it was also said in that ease:

“ And every species of legal proof adapted to show the injustice-of the claim, or its invalidity as a whole or in degree or amount, is admissible. And the executors are at liberty to make any defense that their testator could himself make, if alive, and the same were properly pleaded, in an action upon such claim.”

In Roe v. Boyle, 81 N. Y. 307, a similar reference had been ordered, and the court said:

“ This is not an ordinary proceeding. It is specially regulated by statute. 2 Rev. St. 89, 90. It cannot be commenced by summons. It can only be commenced by the consent of the parties and the approval of the surrogate. ít can be tried in no other way than before a referee. There are no pleadings, and the representatives; of the estate proceeded against can prove against the claim any defense which they have without pleading it in any form.”

In Mowry v. Peet, 88 N. Y. 454, it was said that :

“In trying and adjudicating upon these matters which are within the scope of the reference, the statute (2 Rev. St. p. 88, section 36) confers on the referee and the court the same powers as if the reference had been made in an action ; but the proceeding is not an action.”

Section 36 of the Revised Statutes (volume 3, 6th ed., p. 2299),. provided for an agreement being entered into, and for the entry of an order; and section 37 provided that the referee should proceed to hear and determine the matter, and that the proceedings should be the same in all respects, and the referee should have the same powers, and be entitled to the same compensation and subject to the same control, “ as if the reference had been made in an action in which such court might by law direct a reference.” In-references under that statute it was held by the court of appeals in two cases that a bill of particulars could not be required,

Townsend v. N. Y. Life Insurance Co., 4 Civ. Proc. R. 403; Eldred v. Eames, 115 N. Y. 403; 26 St. Rep. 277; and in the latter case it was held that the referees—

“ Could not change the items of an account presented and referred. The exercise of such power by the referee would enable a claimant, to obtain a reference of claims against an estate without the consent of the defendant or the approval of the surrogate, which is made by the statute the condition of such a proceeding. It is the claim which is rejected by the executor that may be referred, and none other.”

In Gilbert v. Comstock, 93 N. Y. 484, it was held that prior to the Code of Civil Procedure—

“ A contestant of a claim presented by an executor against the estate was not required to present a written answer or formal objections. The claim was open to any answer of defense, and was subject to be defeated if, at the testator’s death, the statute of limitations had run against it.”

In chapter 686 of the Laws of 1893, approved May 11, 1893, section 2718 of the Code of Civil Procedure was amended, and, as amended, contained the following language :

“ If the executor or administrator doubts the justice of any such claim, he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surrogate. On filing such agreement and approval in the office of the clerk of the supreme court, in the county in which the parties or either of them reside, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such order the proceeding shall become an action in the supreme court. The samé proceedings shall be had in all respects, the referee, shall have the same powers, be entitled to the same compensations and subject to the same control as if the reference had been made in an action in which such court might, bylaw, direct a reference.”

It is contended by the learned counsel for the appellant that immediately upon the entry of an order for a reference “the matter became and was an action in.the supreme court in every sense,, and in respect to all proceedings,” and in support of his contention he calls our attention to Adams v. Olin, 78 Hun, 309 ; 60 St. Rep. 695, and the judge who delivered the opinion in that case, in respect to a question of costs, stated that the proceeding ceased to be a special proceeding, and became an action, and was to be tried as such in respect to all subsequent proceedings. We find nothing, however, in the opinion, which indicates that the section was construed in any respect, except so far as it relates to a different rule as .to costs from the one existing under the Revised Statutes. Mor do we find anything in the language of the section which indicates an intention on the part of the legislature to overturn the well-settled rule as appears by the cases to which we have already referred, and numerous other cases, to have obtained in regard to such references. We are of the opinion that the claim, the rejection thereof, and the stipulation to refer are to be treated as superseding the necessity of pleadings on either side, and that the party rejecting the claim is at liberty to assert any defense, and that nothing is found in the section as amended which requires either party to furnish pleadings, and that the contention of the appellant is unsound, and the conclusion reached at the special term was correct. Although the statute in terms provides that " on the entry of such order the proceeding shall become an action n the supreme court,” we think what has transpired in relation to the issues between the parties remains in full force and vigor,” and that neither the plaintiff is required to serve a complaint nor the defendant an answer. We may appropriately repeat the language used in Eldred v. Eames, supra, where it is said:

“ It is the claim which is rejected by the executor that may be referred, and none other. If the power of amendment is allowed, •the whole subject of the controversy may be changed during the trial, to the manifest detriment of the defendant, and in violation of statutory authority to order a reference. The trial might thus be had upon claims that were not presented to or rejected by the executor, and whose reference was never approved by the surrogate. These conditions are made, by the statute, essential to the power to refer, and cannot be dispensed with or subverted. The distinction between statutory references and others, which are inherent in the nature of the proceeding, is not obliterated by the general language of the statute giving referees therein the same powers possessed by referees in actions.”

The plaintiff has availed herself of a provision of the statute for a reference, with a view, doubtless, of obtaining a more summary determination of her claim, and it must be assumed that such course was adopted for proper reasons, and with the expectation that the provisions of law would apply to such a reference. If she had preferred to have the rules and practice in actions apply from the beginning to the end of her efforts to recover her claim, she might have brought an action, instead of joining with the executor in an agreement to refer. Dryer v. Brown, 30 St. Rep. 48; Id., 28 id. 695, on first appeal. We are of the opinion that the special term properly refused to order the defendant to serve an answer or deliver a bill of particulars.

Order affirmed, with $10 costs and disbursements.

All concur.


text:
    Forest G. Weeks, App’lt, v. Joseph Binns, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Evidence—Pabol.
    A subsequent separate, independent and complete oral contract which, though relating to the subject of the written agreement, does not controvert nor is inconsistent with it, may be shown by parol evidence.
    Appeal from a judgment, entered on a decision granting a non-suit.

      F. E. Stone, for app’lt; Goodelle & Nottingham, for resp’t.
   Hardin, P. J.

Plaintiff’s complaint alleges that on or about August 1, 1891, at Skaneateles, he “ sold, delivered, and returned to defendant one hundred and seven of said carboys, of the value and at the said agreed price of one dollar and fifty cents each, amounting to the sum of $160.50; and that defendant accepted and received the same at New York, and paid the freight thereon for plaintiff, but has neglected and refused to pay therefor.” Defendant, in his answer, admits “ that on or about August 15,1891, said plaintiff returned 107 of said carboys to the defendant.” In defendant’s answer it is alleged “that it is the custom of trade, with which plaintiff, as defendant is informed and believes, was well acquainted to permit the purchasers of carboys to return the same wituin a year, and to receive therefor $1.50 per carboy, but that, If the carboys were not returned within a year, to pay but seventy-five cents therefor, providing the same were in a good condition.” By the evidence it appears that a written order was given by the plaintiff to and accepted by the defendant, in the following language:

“ December 28, 1888.
“Joseph Bin ns, 188 Pearl street, New York: You may enter an order for 140 carboys 66 brimstone acid, at 95c per 100 lbs., ■delivered f. o. b. cars at mill 60 days, breakage guarantied. Shipment to be made Feby. 1st, with privilege to increase order to larger car load if Skaneateles Paper Co. wishes to go in.
“Yours,
F. G-. Weeks.
“0. Gr. W.
“Accepted.
“ Joseph Binns,
“Per Joseph Harrington.”

The order was made by Charles Gr. Weeks, son of the plaintiff, .acting as agent for the plaintiff; and Harrington was then salesman for the defendant, and received the order at the plaintiff’s office, at Skaneateles. Similar transactions had taken place between the parties during the year preceding. After the written order was given, the plaintiff's agent stated to the defendant’s agent “that the usual arrangement for returning the carboys would apply to these carboys that contained the vitriol, and he said they would; * * * and the price to be paid for them should prevail.” It appeared in the evidence that the order had been signed before this conversation took place. The witness added: “I had written the order, and lie had signed it, before anything was said about the carboys. * * * I copied it in the letter bdok, and, as I handed it to him, I had the conversation about the carboys.” After this conversation had been stated, the defendant’s counsel moved to strike out the evidence. The motion was granted, and an exception was taken. The plaintiff, in effect, offered to show that it was well understood by both parties that he should be allowed the price that he paid for the carboys, to wit, $1.50 for each. There was a concession that the plaintiff paid $1.50 per carboy. The plaintiff, in effect, offered to show “ that the amount that he was to get back was the same amount that he paid.” This was objected to by the defendant, and the objection was sustained, and an exception taken. Thereupon the defendant moved “ that plaintiff be nonsuited, and the complaint be dismissed, on the ground that there is no cause of action in the written contract, on the ground that it contains the whole agreement between the parties, and cannot be varied by paroi, and that, therefore, there is no-evidence in the case to sustain the allegations of the complaint.” The motion was granted, and the plaintiff excepted.

In Batterman v. Pierce, 3 Hill, 172, where an action was brought upon a note, it was held that:

“Paroi evidence that it was given for the price of goods sold, and that, at the time of the sale the plaintiff made a promise to the defendant in respect to the goods, which has been violated, is not objectionable as tending to alter, modify, or impeach the note.”

In Unger v. Jacobs, 7 Hun, 221, it was held that:

“ The law does not exclude paroi evidence to show the further "agreement of one party because that of the other has been reduced to writing. A written agreement having been signed by one-party, paroi evidence may be given of an agreement made by the other party, as a consideration of the written contract.”

In the course of the opinion in the case, it is said:

“ The instrument executed by the defendant was designed to-contain only the agreement made by him, which did not preclude him from showing what the plaintiffs had undertaken to do, by so-much of the agreement as was made on their part, for the purpose of securing the benefit of it to himself in this action.”

In Duparquet v. Knubel, 24 Hun, 653, an action was brought, to recover the price of a range placed by Armour in an hotel owned by the defendant. Armour leased the hotel from the defendant, and soon thereafter became dissatisfied with it, and made an arrangement by which he surrendered the premises, together with 'the range and other things, to the defendant, being indebted at that time to the plaintiffs for the purchase price of the range.. The surrender of the premises was in writing, and the instrument therefor “ related by its terms only to the surrender of the leasehold premises. As part-of the consideration inducing it, evidence was given tending to show that the defendant obligated himself to-pay to the tenant the sum of $200, and also to pay to the plaintiffs the debt owing to them for the price of the range.” And, in disposing of the case, the court said:

“ As no provision was inserted in the instrument by which the surrender of the premises was made for the disposition of the range-it was entirely consistent with all that was contained in it to show the existence of the agreement alleged to have been made for the payment to the plaintiffs." This was a new subject-matter, in noway whatever affected by or alluded to in the written agreement, ana in no respect in conflict with any stipulation or recital contained in it. For that reason, the plaintiffs' were at liberty to-show, as they endeavored to do by oral evidence, the existence of the agrefement forming the basis of their recovery in this action. Parol evidence may always be given under such circumstances for the purpose of proving a separate and incidental agreement, relating to matters neither contained in nor alluded to by the terms of a contemporaneous writing.”

Numerous authorities are cited in support of the proposition laid down, to which reference is hereby made.

In Briggs v. Hilton, 99 N. Y. 517, it was held, viz. :

“At the time of a negotiation between the parties for the sale by plaintiffs to defendants of certain goods, plaintiffs gave to defendants a writing, which acknowledged the receipt of an order for the goods, and stated a time of delivery and the price. Held, that defendants were not estopped thereby from proving paroi warranty as to quality; that the instrument could not be construed as being the whole contract between the parties, but was simply a memorandum; that even if it could be construed as embodying a part of the agreement, and so conclusive as to that part, oral evidence was competent to show the rest.”

That case was referred to with approval in Routledge v. Worthington, Co., 119 N. Y. 597; 30 St. Rep. 195, and in the latter case it is said:

“The rule which rejects paroi evidence, when offered with respect to a contract between parties and put into writing, has no application to. a case like this, where, of the original agreement which has been executed, a part only is in writing, and the rest was verbal.”

The opinion delivered in Woodard v. Foster, 64 Hun, 147 ; 45 St. Rep. 77, is in entire harmony with the cases to which we have just referred. In the case in hand the oral agreement did not controvert nor was it inconsistent with the written order. Chapin v. Dobson, 78 N. Y. 75; Juillard v Chaffee, 92 N. Y. 529.

In Thomas v. Scutt, 127 N. Y. 140; 38 St. Rep. 692, in the course of the opinion, it was said that collateral agreements may be shown “because they are separate, independent, and complete contracts, although relating to the same subject. They are allowed to be proved by parol because they were made by parol, add no part thereof committed to writing.”

We think the rulings at the trial were erroneous, and that the exceptions present errors which require a-reversal.

Judgment reversed on the exceptions, and a new trial ordered, □with costs to abide the event.

All concur.


text:
    Thomas McPeak, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    1. Negligence—Contributory.
    The fact that a person, under some circumstances, could observe an approaching engine the distance mentioned by the testimony, is not sufficient to require the court to rule, as matter of law, that the plaintiff was guilty of contributory negligence.
    3. Same.
    The evidence, in this case, was held to have required the questions of negligence and contributory negligence to be submitted to the jury.
    Appeal from a judgment entered on a decision granting a non-suit, and from an order denying a motion for a new trial.

      W. A. Poucher and William Tiffany, for app’lt; D. G. Griffin, for resp’t.
   Hardin, P. J.

Inasmuch as a nonsuit was granted, the appellant is entitled to have all of the evidence construed in a manner-most favorable to his contention, as well as to have the benefit of the inferences which could legitimately be drawn from such evidence. Harris v. Perry, 89 N. Y. 308 ; Sherry v. N. Y. C. & H. R. Railroad Co., 104 id. 656; 5 St. Rep. 374; Morrison v. Met. T. & Telegraph Co., 52 id. 601. The defendant’s track, where the accident occurred, crosses Fourth street, and passes along Schuyler street. On the occasion of the accident one of defendant’s freight trains was stalled in its approach to Fourth street, and while crossing it, about nine fifty o’clock p. m. The track was wet, and as the train approached Fourth street it was passing around a curve, and there was some difficulty found in getting the use of the contrivance for depositing sand upon the track to prevent the wheels from slipping. A great noise was made by the-engine that was attempting to get the freight train cm motion. Holman, the engineer on the freight train that got stalled, said :

“We stopped there about nine-fifty on account of a liad rail. We didn’t have a very high pressure of steam. The engine was slipping bad. We stopped about four minutes, and put on the-blower, and began to take in slack,—three or four minutes. Took the slack of the train, and pulled them a little ways, and stalled again. Took slack again, and started the train, and pulled them out very slowly. The second time we took slack we stopped just long enough to get slack,—about two or three minutes. Our engine was supplied with sand. I was using it. It was on a-curve, and she wasn’t getting sand the way she ought to. Only on one side. Sometimes the sand pipe gets off the rails, and it-don’t work just right. * * * The noise was the sudden exhaust. Quite a noise, sudden, following each other; short exhaust. * * * It was a continuous noise,—a kind of blowing-noise out of the stack. * * * The cause of this stalling was an insufficiency of steam and slippery rails and the curve combined. These three causes caused us to get stuck there.”

Defendant’s witness Buskey, who was the' head brakeman on the freight train that got stalled, says :

“The engine was exhausting steam when we tried, and when we didn’t try they had the blower on, and had a kind of humming noise through the stack of the engine. The blower makes that humming noise. * * * That is the worst noise—the most, difficult to hear when you are near it—of any noise the engine makes. I guess it is the most difficult to hear when you are near the noise; more difficult than any other noise which the engine makes. * * * I call that noise a kind of humming noise. It is when you are trying to get steam. It is when the blower is on. It is a continuous humming noise ; no cessation at all. Whenever we are not trying to go ahead, that noise existed. And when we were trying to go ahead we were exhausting.”

Plaintiff was traveling north towards the fort grounds when h& reached the Fourth street crossing, when he found, standing across the sidewalk, a freight train, headed west, stalled. There were two other tracks, which were not occupied at the time the plaintiff approached the road, one known as the “south track” and the other as the “middle track.” The plaintiff was approaching the crossing with his friend Ward, and testifies as follows:

“I got down onto the crossing. Stood there for perhaps about two or three minutes when I first stopped. I looked both ways, to see if there was any train coming along. Went over a little further, and looked again. I saw a freight train stalled there on the north track. Might have stood there perhaps a quarter of a minute. I looked both ways. I looked east first, turned around, and looked to the west, to see if I could get by that train,—if it was cut in two any way so I could get around either end of it,— to see if there was an opening. I found I couldn’t get around it. I stepped back again. I should say I was about two feet from the north rail of the middle track, looking west, when this passenger train (going west on middle track) came along, and struck me, and knocked me, I should say, abóut ten feet, and threw me over on my back. My arm went out, and it took it off. The engine of the freight train was puffing and blowing off steam, so I couldn’t hear anything coming. I couldn’t hear the passenger train. Didn’t see it till I was struck. The engine of the freight train stood, I should say, about twenty feet from the crossing,— perhaps thirty feet,—west. The tail of the train extended easterly. The cars that confronted me when I came up there were box cars,—a freight train of box care. I was struck, and my arm cut off, by the passenger train, on the middle track, on the north rail, just where the point of the track comes together [meaning the frog of the switch on middle track just west of the sidewalk].”

Plaintiff was an enlisted soldier, stationed at the fort near by, and had occasion to pass and repass the crossing two or three times a week, and sometimes two or three times a day. When he reached the crossing, about 9:50, it was dark and cloudy. There was some evidence to the effect that on the night in question a passenger car was standing on the south track, east of Fourth street, and about opposite the Connor House. There was an electric light near the crossing. Defendant called an engineer, who had made measurements of the premises, and from his testimony it is claimed there was no obstruction to the plaintiff’s view of the headlight of the approaching engine for a distance of some 229 feet just before the accident, and that he could have obtained a view of the headlight of the engine at a distance of 421 feet before it reached him, although there were intervening cars on the south branch that interrupted the light afterwards and until the engine got within a distance of 249 feet. And there was evidence tending to support the position that an electric light illuminated the vicinity where the accident occurred. It appeared there was an ordinance of the city prohibiting the defendant from running its trains at the place in question faster than six miles an hour. There was evidence given tending to show that the speed of the passenger train as it came up Schuyler street was from eight to ten miles an hour. Defendant called McCarthy, the engineer of the passenger train, who testified that it was a dark night, and that the headlight of his engine was burning at the time, and that he saw the rear end of the freight train on the right-hand side of him, to wit, on the north track, when the rear end of the freight was about Sixth street, and that he slowed up his train, and came along a little further; and that just before he got where the accident occurred he saw a man on the top of the gondola, standing there, with his back towards him ; and that he got up a little further,—just about in front of him, and that he jumped off with his back towards the witness, and just as he fell the witness’ engine hit him ; and that the brakes were applied, and the train stopped; ■and that he was getting down from the engine the plaintiff was standing in front of him, by the gangway,, and that the plaintiff remarked, “ Nothing but an arm off.” In response to the testimony given by the defendant, the plaintiff testified that he did not, on the night in question, get onto any car on the freight train, or attempt to get on any, and that he did not jump off a car of the freight train upon that night, or fall from it, or- come from it in any way ; and that he did not state to any one that he expected any one on the passenger train; that he did not state' on that night that he jumped from the freight train, or anything substantially of that character. He further testified:

“ This exhaust of the engine of a freight train, or the blower, making its noise, one or the other, was being done during the entire time from the time I arrived there at the crossing, to go home, that night, until the accident. I heard no bell or whistle on the passenger train. I plainly heard this exhaust, and this blowing from the engine during the whole time. The blower made :a kind of rumbling sound; loud.”

Upon the evidence of all the circumstances attending upon the acts and omissions of the defendant on the occasion of the acci dent, we think, the question of defendant’s negligence was one of fact which should have been submitted to the jury. It was for the jury to determine what force and effect should be given to the fact, if so found from the evidence, that the passenger train was approaching the crossing at a greater rate of speed than was permissible under the ordinance of the city.

In Beisegel v. Railroad Co., 14 Abb. Pr. (N. S.) 29, it was held that:

“ It is some evidence of negligence as to third persons, on the part of a railroad company, to show that it ran its engines through the streets of a city at a speed greater than is permitted by a city ordinance, although the ordinance prescribes only a penalty for a violation of its provisions.”

In that case it appeared the trial judge charged the jury.

“ That if they were satisfied from the evidence that the engine was so running at the time, and this excess of speed beyond what the ordinance permitted contributed to the injury received by the plaintiff, it was some evidence of the negligence of defendants.”

And the court sustained the charge in an opinion delivered by Grover, J.

In Massoth v. Canal Co., 64 N. Y. 532, it was held that city ordinances of the character of the one produced in this case are competent on the question of negligence of railroad corporations, and that the proof of greater rate of speed than that prescribed, with all the other evidence in the case, is to be submitted to the jury. It was also held in that case:

“ Irrespective of any ordinance or law regulating the speed of railroad trains at crossings, the running at an excessive rate of speed is negligence, and, if a collision is caused thereby, the company is liable.”

And it was further said that:

“ As to whether the rate of speed is excessive or dangerous in the locality is a question of fact for the jury.”

Whether the plaintiff was guilty of contributory negligence was a question of fact which should have been submitted to the jury. Plaintiff testified that he looked, listened, used his eyes, and made an effort to apprehend whether the place at which he found himself was one of danger or of safety. The fact that a person, under some circumstances, could observe an approaching engine the distance mentioned by the testimony, was not sufficient to require the court to rule as a matter of law that the plaintiff was guilty of contributory negligence.

In Massoth v. Canal Co., supra, it was said:

“ It does not necessarily follow from the fact that a skilled engineer can demonstrate that from a given point in the highway the track of a railroad is visible for any distance, that an individual in charge of a team, approaching the track, is negligent because he does not from the same point see a train, approaching at great speed, in time to avoid a collision.

In Shaw v. Jewett, 86 N. Y. 616, the court was asked to charge:

“ That if they believed the plaintiff could have seen the train at distance enough from the track to have stopped his horse before reaching the track, his failure to see the train was negligence on his part, and he was not entitled to recover."

The court refused to so charge, and it was held that the refusal was not error, and in the course of the comments delivered thereon by Folger, C. J., he said :

“ That is not the rule. The plaintiff is not bound to see. He is bound to make all reasonable effort to see that a careful, prudent man would make in like circumstances. He is not to-provide against any certain result. He is to make an effort for a result, that will give safety; such effort as caution, care, and prudence will dictate.”

That doctrine was approved in Rodrian v. N. Y., N. H. & H. Railroad Co., 125 N. Y. 529; 35 St. Rep. 814, and, applying it to the case in hand, it must be said that, according to the plaintiff’s testimony, he looked both ways, and it was for the jury to determine, upon such testimony as is found in the case, whether his conduct on the occasion was that of a person using ordinary care and prudence. The question was one for the jury, and not for the court. Parsons v. N. Y. C. & H. R. Railroad Co., 113 N. Y. 355 ; 22 St. Rep. 697; Towns v. R., W. & O. Railroad, Co., 28 id. 124; Rodrian v. N. Y. N. H. & H. Railrood Co., 125 N. Y. 529 ; 35 St. Rep. 814; Sherry v. N. Y. C. & H. R. Railroad Co., 104 N. Y. 652; 5 St. Rep. 374; Chisholm v. State, 141 N. Y. 246; 56 St. Rep. 811.

Appellant calls our attention to Burke v. N. Y. C. & H. R. Railroad Co., 73 Hun, 32 ; 57 St. Rep. 7, which is unlike the case before us, as there it appeared that the deceased could “ have seen this train, and could have avoided it, if she had used her eyes for the purpose for which they were intended,” and there was no evidence that they were so used, and it was held that it was error to refuse to charge that the deceased was bound, ia virtue of the evidence in that case, to turn her head, and look for the train, before entering upon the track. We think the language of Andrews, J., in Rodrian v. N Y., N. H. & H. Railroad Co., 125 N. Y. 529 ;

35 St. Rep. 814, should be applied to the ease in hand. He there said:

“ Tf, in case of an accident at a crossing, it appears that the person injured did look for an approaching train, it would not necessarily follow as a rule of law that he was remediless because he did not look at the precise place and time when and where looking would have been of the most advantage.”

The judgment in that case was reversed because of a defect in thé proof. At a later part of the opinion it is said :

“ There is not the slightest evidence that she looked up or down the track before attempting to cross, or stopped, or listened; the only evidence being that she appeared to be looking directly in frtint of her.”

We think the trial judge fell into an error when he withheld the case from the jury. Judgment and order reversed, and a new trial ordered, with costs to abide the event.

All concur.


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    First National Bank of Carthage, Resp’t, v. Prosper L. Eaton et al., App’lts.

      (Supreme Court, General Term, Fourth Department

      Filed February, 1895.)

    Appeal—Appealable order.
    No appeal lies from an order, sustaining a demurrer to a part of the answer.
    Appeal from an order snstaining a demurrer.

      H. C. Cook, for app’lts; A. E. Kilby, for resp’t.
   Hardin, P. J.

As the appeal is from an order sustaining the demurrer to a part of defendants’ answer, and no appeal is taken from any interlocutory judgment, the appeal should be dismissed, Code, section 1349; Bank v. Lynch, 76 N. Y. 514; Sheffield v. Robinson, 62 St. Rep. 763; Lee v. Timken, id. 764; Haffey v. Lynch, 68 Hun, 507 ; 52 St. Rep. 762. The appeal should be dismissed.

Appeal dismissed, without costs.

All concur.


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    Celia Salisbury et al., Resp’ts, v. Binghamton Publishing Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Creditor’s action—Discontinuance.
    A creditor, who has instituted a creditor’s action in behalf of himself and others similarly situated, who shall come in and prove their debts, cannot discontinue it after an interlocutory judgment has been entered, declaring the rights and liabilities of various parties.
    Appeal from an order granting a discontinuance.

      T. B. & L. M. Merchant, for app’lt; Gill & Stillwell, for resp’ts.
   Hardin, P. J.

Although the appeal book before us does not contain the complaint, answer, or the report of the referee upon-which the interlocutory judgment was entered, we discover from the appeal papers before us that an action was brought by the plaintiffs’ intestate, as a creditor of the Binghamton Hydraulic Power ' Company, against the stockholders of said company. A preliminary injunction was obtained, and that was sustained. The action seems to have been commenced and conducted upon the principles laid down in Pfohl v. Simpson, 74 N. Y. 137. After the issues were joined, there was a reference to the late Judge Edwards, “as sole referee, to hear, try, and determine the same and all matters in controversy therein, and to take proof against all parties in default.” It seems the referee rendered his report on the 24th of February, 1.892, which was filed, and he settled an interlocutory judgment, upon notice, which was presented to a special term held on the 13th of April, 1892, and the interlocutory judgment was allowed by that court. The judgment contains extensive provisions, among others one providing for a further reference, and declaring the rights of several defendants as between themselves, and provides for the oosts of this action, and contains a contingent provision for the payment of any extra allowance that might be made in the final judgment, and provides for the collection from sundry defendants of amounts to be paid into court by paying the same to the county treasurer, and that, from such funds so paid into court, the treasurer’s fees be allowed, and that he “pay the costs of this action to plaintiff’s attorneys, and to the attorneys of such other parties to whom costs may be adjudged, hereinbefore directed, and such other and further costs and expenses herein as the court may allow and direct to be paid from said moneys, and that the residue of said fund be paid over by said county treasurer to such person or persons and in such sums as the court shall direct by the final judgment to be entered herein.” It also contained a provision that certain enumerated creditors “are required to exhibit and prove their claims, and thereby make themselves parties to this action, before the referee herein, * * * on contributing and paying to plaintiff’s attorneys their respective proportions of the expenses of this action, to be then settled by the said referee; and, in default thereof, said creditors who are in default are to be precluded from all benefit of this judgment, and from any distribution thereunder which shall be made, but claims of creditors which have already been proved before the referee are not required to .be proved again.” Over and beyond the provisions already quoted, the decree declared liabilities and rights of sundry parties in appropriate language mentioned therein.

In Maicas v. Leony, 113 N. Y. 619 ; 22 St. Rep. 149, it was held that, if the referee commits errors of law or of fact, ‘they cannot be corrected by a motion made at special term to set aside the report and all proceedings thereunder, but by appeal from thé judgment entered upon the report.” The privilege of the plaintiff to discontinue an action is not absolute and unqualified. 'Whether an order of discontinuance shall be allowed ordinarily before a judgment is entered rests in the discretion of the court in which such an order is sought. Young v. Bush, 36 How. Pr. 240; Wilder v. Boynton, 63 Barb. 547; Carleton v. Darcy, 75 N. Y. 375.

Matter of Butler, 101 N. Y. 309, it is said that, in' the exercise of its power to control the entry of an order, there is a discretion, and that, where no facts and nothing appears to show a violation of the right or interest of the adverse party, the plaintiff may discontinue. In the case in hand, the plaintiffs’ intestate, as a creditor, filed his bill in behalf of himself and others who were similarly situated who should come in under the bill and establish their rights.

In 2 Barb. Ch. Prac. p. 169, it is said that, in such a case, “others are allowed to come in at any time, either before or after the decree, until the fund is actually distributed and paid out.” And it is further suggested that “a creditor coming in under the decree takes the position of the complainant.” And it is further stated:

“Where a creditor files a bill in behalf of himself and all others who shall come in and prove their debts under the decree, and contribute to the expenses of the suit, he may discontinue his suit at any time before there has been a decree therein for the benefit of himself and the other creditors. But, after a decree, he cannot "deprive the other persons of the same class of the benefit of the decree, if they think fit to prosecute it.”

That doctrine seems to be sustained by numerous cases that have arisen since the author used the language we have quoted.

In Innes v. Lansing, 7 Paige, 583, it was said that such a creditor “may discontinue his suit at any time before there has been a decree, therein for the benefit of himself and the other creditors.”

In Cummins v. Bennett, 8 Paige, 79, it was said that it was a matter of course to permit the complainant to dismiss his bill at any-time before decree, upon payment of costs. But an order for leave to dismiss, upon payment of costs, is conditional; and in a note to that case it is'said, at page 81, viz.:

“It is discretionary with the court to refuse a complainant permission to dismiss his bill, if a dismissal would work a prejudice to the other parties.”

And in Watt v. Crawford, 11 Paige, 472, the chancellor observed :

“Before any decree or decretal order has been made, in a suit in chancery, by which a defendant therein has acquired rights, the complainant is at liberty to dismiss his bill, upon payment of costs. But after a decree has been made, by which a defendant has acquired rights, either as against a complainant or as against a co-defendant in the suit, the complainant’s bill cannot be dismissed without destroying those rights. The complainant, in such a case, cannot dismiss without the consent of all parties interested in the decree; nor even with such consent, without a rehearing or upon a special order to be made by the court.”

In Picabia v. Everard, 4 How. Pr. 113, it appeared that the action was to foreclose a mortgage which had been assigned to one of the defendants ; and in 1844 a decree had been entered in the suit by default, but it had not yet been enrolled, and the assignee (the petitioner) asked for relief to be made a party plaintiff, or for leave to vacate the decree of foreclosure and dismiss the suit, and the motion was denied, and, in the course of the opinion delivered in that case, it was said:

“To establish a precedent which should give the plaintiff this right, especially after decree, might be made to operate vexatiously and oppressively. Every decree affects other rights besides those of the plaintiffs. All parties become interested in it, and. any of them may take steps to have the effect of it;" citing Carrington v. Holly, 1 Dick. 281, and several other cases.

Brinckerhoff v. Bostwick, 99 N. Y. 194, is in harmony with the cases to which we have referred. In that case it was said:

“The action is really the action of all the stockholders, as it was necessarily commenced in their behalf and for their benefit. It could not have been commenced by one stockholder for himself alone. It is true that, at any time before judgment, the original plaintiff, before the others were made parties, could have discontinued the suit, or could have settled his individual damages; * * * but, if he had prosecuted the action to judgment, then the judgment would have been for the benefit of all the stockholders, and he would then have ceased to have control over it, because the rights of the other stockholders would at once have attached thereto.”

The rule was recognized in Trevain v. Insurance Co., 11 Hun, 286.

In Mattison v. Demarest, 1 Rob. 723, alluding to the principle which we have already adverted to, the judge who delivered the opinion said:

“But the moment the decree was entered in the suit the rights of the other creditors attached to it, and the proceedings in all the other suits were or might be stayed.”

And in that case, as well as in Averill v. Patterson, 10 N. Y. 500, it was intimated that the rule as-it existed in the old court of chancery had not been changed by the Code.

On the 20th of January, 1894, the appellant gave notice of a motion to be heard on the 3d of February, 1894, “for an order referring all matters in this action left undetermined by said interlocutory judgment, and thereby directed to be thereafter determined, to some suitable person, to take proof thereof, and particularly of such debts made or owing by the Binghamton Hydraulic Power Company, and remaining unpaid, and not heretofore proven and established in this action, as the stockholders found liable to contribute to the payment of the debts of said company, by said interlocutory judgment, may be liable to pay thereunder,” and to consider and determine the several particulars mentioned in the interlocutory judgment. On the 25th of January, the plaintiffs gave notice of a motion to be heard at the same term, “for an order permitting the plaintiffs to discontinue said action "without costs, unless some of the parties hereto, creditors of said Binghamton Hydraulic Power Company, shall desire to proceed with the prosecution of said action in their own name, and in that case that such party or parties be required to pay to plaintiffs or. their attorneys the sum of two thousand two hundred and six dollars and two cents ($2,206.02) for their expenses in this action, and that, upon such payment, an order be made substituting such parties plaintiffs herein, and relieving these plaintiffs from further responsibility connectéd with the prosecution of said action.” Several affidavits were read at the February special term in regard to the matters mentioned in the two notices of motion to which we have just referred; and the special term held on the 3d of February, 1894, ordered a reference “to take the proofs of the parties, and to report to this court the amount of the disbursements on behalf of the plaintiffs in said action, and also the value of the services of Gill & Stillwell as attorneys for the plaintiffs in said action to date.” Proofs were taken before the referee mentioned in that order, and a report was made on the proofs and the .report, and the motion papers were again brought before the special term held on the 2d of June, 1894, when the order appealed from was made. On looking into that order, we find that it confirms the report of the referee who heard the matters relating to the motion, and made his report, bearing date May 5, 1894. And the order also denied the motion “for the appointment of a new referee, made on behalf of the Binghamton Publishing Company and other defendants," and granted the motion to the plaintiffs to discontinue, “unless, within sixty days from the date of the entry of this order'and the service of a copy of it, * * * the Binghamton Publishing Company and any other creditors of the Binghamton Hydraulic Power Company who may desire to further prosecute said action shall pay to the plaintiffs or their attorneys the sum of $1,901.16, together with interest on $1,385 from February 21, 1893, together with $60, referee’s fees, paid by the plaintiff upon the reference herein.” It appears by one of the affidavits used upon the hearing of the motions that some negotiations had been had in respect to a settlement of the action between the attorneys of some of the defendants. However, no written evidence of the settlement between any of the several defendants themselves, or between them and the plaintiffs is produced. Nor is there anything in the affidavits indicative that the appellant ever gave assent to a settlement upon the terms that are mentioned in the motion papers. Nor is there any evidence in the motion papers tending to show that the attorneys had authority to settle upon the terms mentioned in the affidavits relating to the negotiations and the projected settlement We have found nothing in the motion papers which warranted the court in refusing to name a referee in the place of Judge Edwards, who had died, after the entry of the interlocutory judgment. We think the special term ought to have appointed a referee to carry out the provisions of the interlocutory judgment. When such a hearing shall have taken place before the referee, and his report shall be brought before the court, and an application made based upon the interlocutory judgment and the report of such referee, an application for a final judgment, to accord with the provisions of the interlocutory judgment, may provide properly for the distribution of the funds, and for the adjustment of the rights and liabilities of the several parties, and the proper allowances to be made, in accordance with the tenor of the interlocutory judgment and the rules and practice in such cases. The foregoing views lead to the conclusion that the order appealed from should be reversed, and either party allowed to apply to the special term to name a referee in place of Judge Edwards to hear the proofs of the respective parties, in accordance with the provisions of the interlocutory judgment.

Order reversed, with $10 costs and disbursements to the appellant, with leave to either party to apply to the special term for the appointment of a referee upon the usual notice.

All concur.


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    Celia Salisbury et al., Resp’ts, v. Edgar E. Strong et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Appeal from an order granting a discontinuance.
    The appellants Strong, Carlisle, and Turney were judgment creditors of the Binghamton Hydraulic Power Company, and recovered judgments, and also Seymour and Whitlock, composing the firm of Seymour & Whitlock, were the judgment creditors of the power company, and were restrained by the témporary injunction, and the interlocutory decree makes that temporary injunction permanent. The interlocutory judgment makes provision for the plaintiff’s claim, and for the costs and disbursements, and for an additional allowance, should one thereafter be granted. It also contains provisions protecting and providing for the payment of the other creditors, including these appellants. The interlocutory judgment that was entered upon the report of the referee, to hear and determine, appointed Hon. W. B. Edwards referee, to take proof of claims of creditors who had not already proved their claims. The referee died November 23, 1893.

      E. K. Clerk, for app’lts; Gill & Stillwell, for resp’ts.
   Hardin, P. J.

Plaintiffs have appealed from that portion of the order which allows a discontinuance of the action. They also appeal from that portion which provides that, in case the money is not tendered to the plaintiffs’ attorneys, an order may be entered discontinuing the action, “together with $10 costs of the motion, and $60 costs of said reference.” Inasmuch as we have considered the questions raised in respect to the same order in the case heard at this same term between Salisbury et al. and the Binghamton Publishing Company, and have, according to the views expressed in our opinion, reached the conclusion that the order should be reversed in that case, we think the same views should be applied to the appeal in this case, and that the portions of the order appealed from should be reversed.

The portions of the order appealed from reversed, with $10 costs and disbursements.

All concur.