text:
    In the Matter of an Application by Lott Delaney for a Writ of Certiorari.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Municipal corporations—Fire commissioners—Discharging -firemen.
    Under chapter 822 of 1887, amending the charter of Saratoga Springs, and repealing section 61 thereof, the fire commissioners had no power to discharge a fireman, on the sole ground that there were no moneys unappropriated or tax levied for the payment of his salary.
    Application by Lott Delaney for a writ of certiorari to the-board of fire commissioners of the village of Saratoga Springs to-compel the reinstatement of relator as a member of the fire depart-of said village. Judgment for relator.

      McCall & Brusnihan, for relator: A. W. Shepherd, for resp’ts.
   Putnam, J.

By chapter 322, Laws 1887, amending the charter of the village of Saratoga Springs (chapter 220, Laws 1886), a board of fire commissioners was created for said village. The act provided, among other things, that said commissioners should control the expenditure of all funds belonging to the fire department, should have power to employ a clerk, chief engineer, assistant engineer, superintendent of the fire alarm telegraph, and four or more firemen, and the entire and exclusive management and control of all apparatus for the extinguishing of fires in said village, and of all property belonging to, or intended to be used by, the fire department thereof. The act further provided that the compensation of said engineer, assistant engineer, superintendent of the fire alarm telegraph, and firemen should be paid out of the funds of the fire department, and that such employes may be removed by said commissioners, but not without cause, and after having a reasonable opportunity to be heard. By the charter of said village the trastees thereof are authorized to raise by an annual tax, to be levied in June of each year, for the use of the fire department, the sum of $7,000, and, if necessary, in their discretion, a further sum of $1,000; this seven or eight thousand dollars constituting the fire department fund, and the village having no power to raise any other or greater sum. But chapter 32-2, Laws 1887, supra, provides that all penalties for infractions of by-laws ■enacted by the fire commissioners, and all sums required by law to be paid as taxes by incorporated fire insurance, companies, shall be added to the fire department fund. On March 19, 1895, the relator was appointed fireman, by a- resolution of said fire commissioners, for one year from May 1, 1895, at a salary of $600, payable monthly. The commissioners at the same time appointed, for the said period, a chief engineer, superintendent of fire alarm telegraph, clerk, and nine other firemen. On March 20th the relator accepted said appointment, and acted thereunder until June 7, 1895, when the board of fire commissioners assumed to discharge him. Relator was not removed for cause or on charges, or after an opportunity to be heard, but on the sole ground, as stated by the respondents in the return, that- on March 19th, when he and the other employes were appointed, no money or tax for the fire department fund for the ensuing year had been voted or levied, either for salaries of employes, or ■ other expenses of the department; that there was only $1,762.18 to the credit of the fire fund in the hands of the receiver of taxes, which sum was then anticipated and appropriated for the salaries of the then employes, and for other expenses; that by the employment of relator and others on the 19th of March, 1895, the fire commissioners attempted to incur a debt or expenditure of $7,800, in violation of the express provisions of section 61 of the charter of said village, which provides that “no debt shall be incurred or created by said village, by the trustees, or any other officer thereof in their official capacity; * * * nor shall any expenditure be made or incurred until the money or tax for that specific object shall have been voted or levied as herein directed” ; that the contract made, or assumed to be made, with the relator on March 19th, was void, and hence that the respondents disregarded it, and the services of relator were dispensed with, because no legal contract of employment existed with him.

It is not suggested that relator and the other employes, so appointed on March 19,1895, were not in fact necessary, or required by the fire commissioners in the performance of their duties under the act of 1887 ; but, as there was "no money unappropriated in the hands of the village receiver, in the funds of the fire department, and there being none levied at the time to pay the wages of the said employes for the ensuing year, respondents contended that the fire commissioners had no legal authority to appoint either said chief engineer, superintendent, secretary, or firemen ; that the commissioners should have waited the levy of the taxes in June following. If the contention of the respondents is correct, the fire department of the village in May, 1895, and until the levy of the taxes, in June of that year, would have been disorganized, and the village without fire protection ; and. it follows that if, in the course of any year, after the .levy of the annual tax in June, the fire fund, through any unusual or unforeseen expenditure, should be exhausted, the commissioners would be unable to employ firemen necessary to do the work until the ensuing June.

With some hesitation, we have reached the conclusion that the position taken by the respondents cannot be sustained. We think that the act of 1887 shows an intent to confer upon the' fire commissioners power, at any time, to employ men when necessary and proper to keep the fire department in an efficient condition. They have absolute control of the expenditure of the funds belonging to the fire department. They are given the absolute right to appoint firemen. Under the act, we see no reason to doubt that they may in any year control the appropriation of the funds of the department, by a resolution adopted before, as well as after, the tax is. levied. The control of the expenditure of the funds of the fire department, given to the fire commissioners, is unqualified. An examination of the whole act shows an intent to confer upon them such power as is necessary to keep the fire department in an efficient state. We think their power is not. restricted by section 61 of the charter, but only restricted by the provisions of the act of 1887 itself. The act provided that the compensation of officers and employes shall be payable out of the fire fund. This fund, as we have seen, is a sum' not exceeding $8,000, which the trustees of the village may levy annually ; the amount received from the annual tax on incorporated insurance companies and certain penalties. The commissioners, under the statute, cannot incur in any year a liability beyond the amount of said fire fund. Should they assume to do so, their,act would be without authority. But to that extent they can legally contract, without regard to the provisions of section 61, supra. Had the respondents made it appear that the employment of relator and others on March 19, 1895, created a liability beyond the amount authorized by the statute of 1887, it may be that they would have been authorized to discharge relator. But his dismissal was not placed on that ground in the return of the respondents, but on the sole ground that his employment was in violation of the provisions of section 61, supra.

We think that the doctrine established in the case of People v. Leary, 17 Wky. Dig. 116, approved in Mingay v. Hanson, 102 N. Y. 695, as to the water commissioners of said village, applies. In the case cited it was held :

“That under the Laws of 1872 (chapter 763) a new department was organized, under the control of water commissioners, who have the power to manage and control, repair, make alterations, and use all necessary precautions for the preservation and security of the waterworks. The commissioners receive and expend the income and rents derived from the waterworks, in the discharge of their duties. The statute, as a whole, indicates a power in the commissioners quite independent of the trustees, and confers upon them all the power before that time possessed by the trustees of the village. The trustees have no control over the funds derived rom the waterworks, which are to be expended by the commissioners in the discharge of their duties under the law. Undoubtedly the water commissioners are officers of the village, which is liable for their acts done within the authority conferred by the law; but they are officers to whom powers are given in excess of the powers given to the officers of the village under the charter of 1896. As to such officers and such powers, the restriction of section 61 is, by implication, and of necessary, repealed.”

It will be seen that the case cited is quite similar to this. In that case the powers of the water commissioners of the village of Saratoga Springs to incur a debt was considered, and it was held that the water commissioners were not restricted by the provisions of section 61 of the charter. Here, as in that case, a new department was made by the act of 1887, creating a board of fire commissioners. Such board controls the property belonging to the fire department, and the expenditures of funds thereof Although the fire commissioners are officers of the village, powers are conferred upon them by the act in excess of the powers theretofore possessed by the trustees under the charter. It is true that it appears in the case cited that the water commissioners received the greater part of the funds used by them from water rents entirely under their control, while the greater part of the fire department fund is raised by a tax levied by the trustees of the village. But the act of 1887 provides that the "fire department, and hence the trustees, after levying the tax for the fire fund, have no more control over it than they have over the water fund received from water rents by the water commissioners of said village.

On the whole, we think, as held in the case cited as to the water commissioners, that as to the fire commissionerr, and the powers conferred upon them by the act of 1887, the restriction of section 61 of the charter is repealed by implication, as well as by the express enactment contained in section 5 of the act.

The case of Latham v. Richards, 21 Hun, 360, to which we are referred by the learned counsel for respondents, is not parallel. There the trustees of the village of Saratoga Springs assumed to create a debt for a large amount in the purchase of a farm for a cemetery, no money or taxes for that specific object having been voted. In that case there was a plain attempt to violate the provisions of section 61 of the charter. Ho subsequent statute had, by implication or otherwise, repealed section 61 of the charter, which was therefore applicable, and hence the contract attempted to be made by the trustees was void. In the case under consideration, an act passed subsequent to the act of 1866, creating a new department, authorized the fire commissioners to make the contract with relator under which he claims, and, if the latter act is inconsistent with the provisions of section 61 of the said charter, that section must be deemed repealed pro tanto.

We conclude that the relator is entitled to judgment, with the usual costs.

All concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    The People ex rel. The Chicago Junction Railways and Union Stock Yards Company, App’lt, v. James A. Roberts, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Taxes—Foeeign cobfobatiob.
    Where the business of a foreign corporation, viz., the receiving of dividends upon the stock owned by it, and the declaring, from the money so received, of dividends upon its own stock and transmitting the same to its stockholders, is done in the city of New York, and it is entirely independent of, though organized, for the purpose of purchasing a large part of the stock of another foreign corporation, such corporation is taxable as a foreign corporation doing business in this state.
    2. Same.
    Where a foreign corporation is taxable as doing business in this state, the decision of the comptroller as to the amount upon which it will be taxed, will not be disturbed, unless clearly shown to be erroneous.

      Certiorari to review the action of the comptroller in taxing relator’s capital stock.

      Seward, Guthrie, Morawetz & Steele {William D. Guthrie and JEdward JD. O'Brien, of counsel), for relator; T. JE. Hancock, Atty. (Jen. (G. D. B. Hasbrouck, Dep. Atty. (Jen., of counsel), for resp’t.
   Herrick, J.

This is a certiorari to review a decision of the comptroller in taxing the relator’s capital stock. The relator is a foreign corporation, incorporated under the laws of the state of New Jersey. It is described by its treasurer as “ a proprietary company.” Its entire capital is invested in the stock of another corporation, the “ Union Stock Yards & Transit Company, of Chicago, 111.” It was formed for the purpose of purchasing the stock of the Union Stock Yards & Transit Company, and has purchased and now owns the greater portion of the stock of such company, in which there are about a dozen other stockholders. The stock of the Union Stock Yards & Transit Company, owned by the relator, is deposited with the Central Trust Company of New York, and forms the basis or security for a series of bonds issued by the relator, amounting to $10,000,000. The relator, in addition to its bonds, has also issued stock. The relator is a separate and distinct corporation from the Union Stock Yards & Transit Company. The latter continues to carry on business the same as before the relator’s corporation was formed. Apparently, the only business done by the relator is to receive the dividends upon the stock owned by it in the Union Stock Yards & Transit Company, pays its office expenses, and divide the dividends so received in dividends among its own stockholders. The only other business it seems ever to have transacted was the purchase of the stock of the Union Stock Yards & Transit Company. It has • an office in Jersey city, and one in New York. Its dividends are received in New York city, the directors meet in New York city and declare dividends upon the relator’s stock, and the checks for the payment of such dividends are made out in New York city and transmitted therefrom. It will thus be seen that all the business of the relator,— that is, the receiving of dividends upon the stock owned by it, and the declaring, from the money so received, of dividends upon its own stock and transmitting the same to its stockholders — is done in the city of New York. The business carried on in Chicago by the Union Stock Yards & Transit Company, by which this money is earned, is a separate and distinct business from that done by the relator, and is done by a separate and distinct corporation, and must not be confused with that done by the relator, which is carrying on a separate and distinct business from it. The relator is therefore taxable as a foreign corporation doing business in this .state, and, being so taxable, the decision of the comptroller as to the amount upon which it shall be taxed, we have heretofore held, will not be disturbed, unless clearly shown to be erroneous. The amount is not seriously questioned by the relator.

The writ of certiorari should be squashed, and the decision of the comptroller affirmed, with $50 costs and disbursements.

All concur. .


text:
    T. H. Benton Crane, as Receiver, etc., App’lt, v. Elizabeth N. Shuler et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Appeal—Findings op pact.
    The appellate court is not at liberty to reverse the findings of fact by the trial court where there is any evidence to sustain them.
    Appeal 'from a judgment in favor of defendants.

      Westbrook, Burke & Hover (Z. S. Westbrook, of counsel), for .app’lt; Hale, Bulkeley & Tennant (Matthew Hale, of counsel), for resp’ts.
   Herrick, J.

The defendants Henry A. Booth and Alice M. Booth were not parties to the action brought by the First National Bank of Amsterdam’ against Elizabeth N. Shuler and others, and therefore are not bound by the proceedings in said action, the findings of the referee therein, or the judgment thereon. The question of fact litigated in this action, as to the payment of the mortgage sought to be foreclosed, was not in issue in the former action I have referred to. The trial court has found that the mortgage in question has been fully paid and satisfied, and it 1ms also found that such payment and satisfaction was made by the husband of the defendant Shuler, before he was insolvent, and was made for sufficient consideration; that is, an agreement by his wife to execute with him deeds for the conveyance of certain real estate, whereby her right of dower therein would be released. Upon an examination of the record in this case, it appears that there was some evidence to sustain these findings of fact. We consequently, under repeated decisions of this court, are not at liberty to reverse such findings. Standing unreversed, they effectual! v dispose of plaintiff’s cause of action. As an original prop-osition, I should feel inclined to hold that the plaintiff’s objection to the testimony of the defendant Shuler of transactions and conversations with her deceased husband were incompetent, under section 829 of the Code, but the cases of Uhlmann v. Brownell, 19 St. Rep. 18; and, Gillies v. Kruger, 33 Hun, 314; affirmed, by 102 N. Y. 666, constrain me to hold to the contrary.

Judgment should be affirmed, with costs.

All concur.


author: Putnam, J.

text:
    Caroline Overbagh et al., Resp’ts, v. Minard Oathout, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 3, 1895.)

    1. Pleading—Complaint—Separate statement.
    Where, in an action of ejectment, the plaintiff’s claim is found upon three written instruments reserving an annual rent, and upon defendant’s breach of the covenants contained in said instruments, and upon the right to re-enter therein contained, the complaint contains three separate causes of action which should he separately stated.
    2. Same—Allegation oe ownership.
    A general allegation in the complaint that the plaintiff is now, and for six years last past has been, the owner of all the right, title and interest of the lessor in the demised premises, and the rents, covenants, and reservations therein, and entitled to receive the rents therein reserved, sufficiently shows title to maintain an action of ejectment.
    Appeal from an order in part denying motion to have the complaint made more definite and certain, and to have the separate causes of action therein separately stated.

      Andrew Vanderzee, for app’lt; Theodore B. Gates, (Edgar T Braclcett, of counsel), for resp’ts.
   Putnam, J.

This is an appeal from an order denying in part defendant’s motion to have the complaint made more definite and certain, and to have separate causes of action therein separately stated. The action was ejectment for nonpayment of rent, and the complaint set forth three leases,—the first by Isaac D. Yer Planck to David Lester, dated March 15, 1791, covering 137 acres; the second made by Isaac D. Yer Planck to David Lester, dated on the 12th day of September, 1797, covering fifty-one acres, from which thirty-eight acres have been released; and the third made by Isaac D. Yer Planck to David Lester, dated June 20,1801, covering fifty-nine acres. The complaint stated that the yearly rent of the leases was thirty-four and one-quarter bushels of good, merchantable wheat, or $20.04, to be paid on the 1st day of May in each year, but did not state the rent reserved or amount in arrear on each lease; that the plaintiffs have succeeded to the rights, title, and interest of Isaac D. Yer Planck in the demised premises, and the rents, covenants, and reservation in said leases; that the defendant is owner and in possession of a portion of the leased lands." The complaint alleged that notice of intention to re-enter has been given and asked to recover the premises, with $195.27 for withholding the same. The motion was granted in part, by directing the service of an amended complaint stating the amount of annual rent reserved on each lease, but denying the motion in all other respects.

I think the complaint contains three separate causes of action, which, under the provisions of section 483 of the Code of Civil Procedure, should have been separately stated and numbered. It sets up three separate leases, under which plaintiffs claim to recover. They could have brought and maintained an action under each lease separately, and a judgment for or against them would not have estopped them from maintaining a suit on the other leases. It is difficult fo see why the causes of action in favor of plaintiffs under the several leases mentioned in the complaint are not as much separate as if the action were brought upon three promissory notes or three bonds. On the trial, plaintiffs will be compelled to produce different evidence to maintain their separate causes of action under each of the three leases. They will be obliged to show in each case the lease, the fact that defendant is in occupation of the premises therein described, a breach of the covenants contained in the lease, giving a right of re-entry, and notice of intention to re-enter. The judgment in the action must determine the amount of rent due on each lease, and the defendant, before judgment, or within six months after plaintiffs are put in possession of the premises thereunder, may pay up the rent in arrears. Hence the same evidence will not support the several causes of action under the several leases set out in the complaint. The cause of action under each lease will require different testimony. Although the action is ejectment, plaintiffs’ claim is foundéd upon written instruments reserving an annual rent, and upon defendant’s breach of the covenants contained in said instruments, and upon the right to re-enter therein contained. Hence the action is in fact upon three sealed instruments, and it is quite clear that it contains three separate causes of action. That the different causes of action set forth by plaintiffs should be separately stated, is apparent. The defendant may wish to contest as to one, and not as to the others. He may conclude to pay the rent in arrear on one of the leases, and otherwise contest plaintiffs’ claim. With the complaint as it is, defendant would be seriously embarrassed in answering, or conducting his defense. If the several causes of action in the complaint are separately stated, plaintiffs will necessarily be compelled to set forth in their pleading which of the leased lots the claim defendant is the owner and in occupation of.

It has been held that a complaint in an action of ejectment is sufficient if the plaintiff alleges that lie is seised and possessed of some interest in the premises, and entitled to the possession thereof, and that he is not compelled to show how he acquired title to the premises. Austin v. Schluyter, 7 Hun, 275; Walter v. Lockwood, 23 Barb. 228; People v. Mayor of New York, 28 id. 248. So I think the general allegation in the complaint, that the plaintiffs are now, and for six years last past have been, the owners of all the right, title and interest of the lessor in the demised premises,,, and tlie rents, covenants and reservations therein, and entitled to jeceive the rents therein reserved, is sufficient.

No question as to whether the complaint, as it is framed, states a cause of action, has been discussed by counsel for the respective parties, or is before us for consideration. Were it otherwise, we should doubt whether the pleading sets forth sufficiently the covenants contained in the leases, or any facts showing a breach of the conditions thereof which entitles the plaintiffs to re-enter or maintain the action.

The order should be modified by requiring, in addition to, the amendment therein directed, that the separate causes of action set forth in the complaint shall be separately' stated and numbered, and, as modified, affirmed, with, $10 costs and disbursements to appellant.


author: Herrick, J. Putnam, J.

text:
    John H. Titus, Administrator, etc., Resp’t, v. The Town of New Scotland, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Negligence—Contributory.
    In an action for negligence, it is incumbent upon the plaintiff to establish affirmatively, freedom from contributory negligence upon the part of the decedent, and there must be evidence showing proper care and caution under the circumstances, or evidence from which the jury can infer proper care and caution upon the part of the deceased.
    3. Same.
    In such case, the care and caution necessary to be observed is to be measured by the circumstances of each case, and is commensurate with the difficulties and dangers of the locality, and the danger to be apprehended.
    3. Same.
    The evidence, in this case, was held insufficient to sustain a finding that the plaintiff was free from contributory negligence.
    Appeal from a judgment for plaintiff, and an order denying a new trial.

      Parker & Fiero (J. Newton Fiero, of counsel), for app’lt; J. A. Griswold, for resp’t
   Herrick, J.

T,his is an appeal from a judgment entered upon the verdict of a jury in favor of the - plaintiff, and against the defendant, and from an order denying a motion for a new trial. The plaintiff’s intestate was killed in an accident occasioned by a wagon in which he was being driven going off the side of a bridge located in the defendant’s town. The alleged negligence of the defendant was in maintaining, or permitting to remain, a bridge upon one of its highways without guards, or rails, and, as is claimed, with the planks constituting the floor thereof of unequal lengths, so that the wagon in which plaintiff’s intestate was at the time of the accident, after going a short distance on the bridge, came to a placó where the planking thereof did not extend as far out to the side as at the entrance to the bridge, in consequence of which the wheels of such wagon ran off the side of the bridge, overturned the wagon, precipitating the intestate into a creek below, the wagon falling upon him, and keeping him there until lie was dead.

For the purposes of this discussion, *it will be assumed that the evidence given upon the trial was sufficient to warrant the finding by the jury that the defendant was negligent in not properly maintaining and caring for the bridge in question. In addition to that, however, it became incumbent upon the plaintiff to establish, affirmatively, freedom from contributory negligence upon the part of the intestate. Absence of proof upon that question is fatal to the plaintiff’s cause of action. The jury are not to be left to guess or conjecture; there must be' evidence showing proper care and caution under the circumstances, or evidence from which the j ury can infer proper care and caution upon the part of the deceased. Is there any such evidence in this case? ^Plaintiff’s intestate, together with one Cameron, were driving from the city of Albany to their home^, in the county of Greene. Both had been drinking. The intestate appears to have been almost helplessly drunk. Cameron admits that he felt the effects of what he had been drinking. Cameron was driving, and the intestate, at the time or ju'st prior to the happening of the accident, was down upon his knees in" front of the wagon seat, his intoxication being such that he could not remain upon the seat. It was about half past seven in the evening, and seems to have been intensely dark. The bridge in question is between twelve and thirteen feet in width. The road is a little over thirty-three feet from fence to fence, The traveled portion of the road is eleven feet in width. Before reaching the bridge, the horses had gone off the roadway at various points, and come back, and, some distance before reaching the bridge, the horses again strayed away from the road. About forty rods distant from the bridge stood a house, in which a light was to be seen as it was approached.

Cameron says:

“I knew about where the bridge was in a general way, and that I was coming close to it when I saw the light. Now and then I watched the light. I didn’t really think about the bridge until I struck upon it. I came on it all right with the horses. I knew it was there. I hadn’t been looking out for it as I came along; not particularly. I supposed I was in the road as much as I am in the chair. I sat there easy. I was not thinking about running off the bridge. I supposed I was in the road, and getting across the bridge right along. I wasn’t giving myself any particular uneasiness about the bridge. I knew it was there, and thought it would be all right when I got there.”

Again he says:

“ It was quite dark. You could not see the road to drive without the lantern, except to see generally the fences and the make of the road.”

And again he says:

“ I could, not see the road at all sitting in the seat. I had the lines in one hand, and the horses kind of picked their way They walked right along until we came to this bridge. I had to leave it to their instinct, or what they could do as to following the road. I knew when we came to the bridge. The next thing I knew, we were bottom side up, or the wagon was.”

He stated that the first three or four planks as he went on the bridge extended farther out over the side of the bridge than those next succeeding them ; and that, before reaching the bridge, they were off the road, and the horses turned in again; and, upon examining the bridge next morning, he says :

“I saw the mark of the left-hand wagon wheel where it first went on the bridge. It didn’t go straight in crossing these three or four planks. I was out of the road, and had to go kitiering to get out on the bridge. After the wheel got on the bridge, it went straight on the plank. When it got to the end of the third plank, then the wheel went down in consequence of a short plank.”

Upon his cross-examination he testifies:

“I was about halfway out of the road before I came to the bridge. I got out of the road corning down from Mead’s to the bridge. The wagon tipped twice, and I noticed it and pulled in. When I was out of the road at the bridge, I didn’t notice I was out of the road until I went off the bridge. I had been out twice before that. The wagon tipped a little, and I knew I was out of the road, and pulled the team in, and wear on. I know now that the fact was that I was out of the road just before I got to the bridge. Within twenty feet of the bridge I was in the ditch at the side of the road. I didn’t know then; I know it now. We were about three feet three inches from the beaten track. Before we got to the bridge, the horses hauled into the road; I didn’t. If the horses had gone straight ahead, three feet from the bridge, my left wheel would not have come within three feet of the bridge"; they would not have touched the bridge.”

This testimony of the plaintiff’s principal witness, the survivor of the accident, shows pretty clearly how the accident happened, and its cause, and furnishes evidence from which the jury wer$ to find that plaintiff’s intestate exercised due care and caution' and was not guilty of contributory negligence. The care and caution necessary to be observed is to be measured by the circumstances of each case, and is commensurate with the difficulties and dangers of the locality, and the danger to be apprehended. The plaintiff’s intestate in this case, I think, was properly .chargeable with the manner in which Cameron conducted himself. If Cameron exercised due and proper caution under the circumstances, it inures to the benefit of the plaintiff; and if he did not, the plaintiff’s intestate, I think, must be held responsible for it There is no evidence that Cameron did anything by way of precaution; no affirmative evidence of any act done by him; and I can find no evidence from which the jury could draw any inference of care and precaution on his part. Cameron knew that he was approaching a narrow bridge. He knew that he had already strayed from the road. It was so dark that he could not see the road at all sitting in the seat. He made no effort to guide his horses at all, leaving it, as he says, to their instinct. He says that he was not looking out particularly for the bridge, although he knew it was there. It seems to me that in approaching a narrow bridge, crossing a stream, upon a night like that testified to in this case, the conduct of Cameron, as testified to by himself, was not such as to warrant the jury in finding affirmatively that he was free from contributory negligence.

The j udgment and order should be reversed, and a new trial granted; costs to abide the event..

Mayham, P. J., concurs.

Putnam, J.

(dissenting).—The question in this case is whether thp trial court was justified in submitting to the jury, the question as to the alleged contributory negligence of plaintiff’s intestate or his servant.

Judge Denio, in Johnson v. Railroad Co., 20 N. Y. 78, says:

“The true rule, in my opinion, in this: The jury must eventually be satisfied that the plaintiff did not by any negligence of his own contribute to the injury. The evidence to establish this may-consist in that offered to show the nature or cause of the accident or in any other competent proof. To carry a case to the jury, the evidence on the part of the plaintiff must be such as if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendant. It is not absolutely essential that the plaintiff should give any affirmative proof touching his own conduct on the occasion of the accident.

In Chisholm v. State, 141 N. Y. 246-249; 56 St. Rep. 811, Judge Bartlett remarks:

“Although it is a fundamental principle that the absence of negligence on the part of the plaintiff, contributing to the injury, must be affirmatively shown by him, yet this may be done by direct proof or by circumstances. Hart v. Bridge Co., 80 N. Y. 622; Hoffman v. Union Ferry Co., 47 id. 176-186; Button v. Railroad Co., 18 id. 248. If different conclusions can be drawn from these circumstances, it is a question for the jury, or in this case, for the commissioners. * * * In Harris v. Uebelhoer, 75 N.Y. at page 175, Chief Judge Folger remarked: ‘A public highway may be used in the darkest night, — a night so dark as that the keenest and clearest vision might not be able to detect obstacles and defects. In such a case, any man traveling upon it is practically a blind man. One passing along a sidewalk has a right to presume it is safe.’ McGuire v. Spence, 91 N. Y. 303 ; Weed v. Village of Ballston, 76 id. 329; Brusso v. Buffalo, 90 id. 679.”

In this case, Cameron, the driver of plaintiff’s intestate, was sworn, and stated all facts which occurred at the time of his death. The accident happened on a dark night, •— so dark that Cameron could not see the roadway, and was compelled to allow the horses to choose their way. He could only see the fence on each side. I infer from the evidence that the team was going on a walk. The horses had been out of the traveled part of the road twice shortly before they reached the bridge, but they were in the roadway when they actually came to it. It is to be inferred from the evidence that, if the planks had been properly placed on the bridge the accident would not have happened, as both wheels were on the planks when the wagon reached it.

The question before the jury was, did the evidence, by any construction that could be fairly placed upon it, show' the absence of contributory negligence on the part of Cameron. As we have seen, he had a right to presume the bridge safe. If his testimony was to be relied on, he was driving' slowly along a road with which he was not familiar, on a night so dark that he could not see the roadway, allowing the horses to choose their way, when his wagon was overturned by a defect in a bridge on the highway. It is difficult to see what Cameron could have done that he did not do. Not being able to see the roadway, as Judge Fol-GER, remarked in Harris v. Uebelhoer, supra, he-was “practically a blind man.” He could not guide the horses in any other way than he testified he did, — when he found by the pitching of the wagon they were out of the road, he turned them back into it. It may be that his safest course, under the circumstances, was the one he adopted,—to allow the horses to pick their way. I cannot understand how he could have taken any other course, unless he had alighted from the wagon -and led the horses. The fact that the horses, before they came to the bridge, were out of the roadway twice, does not necessarily show negligence on the part of the driver. _ The night was so dark that he could not see the roadway, and the experience teaches ns that, under such circumstances, such an occurrence is likely to happen to the most careful driver. The circumstances surrounding the death of plaintiff s intestate being fully shown, it seems to me, that whether Cameron did or did not do all that a careful driver should have done under the circumstances was a question of fact.

As Judge Allen said in Massoth v. Canal Co., 64 N. Y. 529 :

“The question of contributory negligence in cases of this character is ordinarily one of fact for the jury. It depends usually upon a variety of circumstances, and upon inferences from the facts proved, calling for the exercise of practical knowledge and experience, and is peculiarly within the province of a jury of twelve men.”

And as Judge Bartlett remarked in Chisholm v. State, supra:

If different conclusions can be drawn from these circumstances,, it is a question for the jury."

I regard the case as a close and doubtful one, but am inclined to believe that the trial court properly submitted the questions, involved to the jury."


text:
    Sarah Kirby, Resp’t, v. The President, etc., of Delaware and Hudson Canal Company et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Judgment—Several liability.
    Where the legal relations between the plaintiff and one defendant and between plaintiff and the other defendant are different, the jury have the power, if they believe the evidence justifies them, in holding one defendant to be, and the other not to be, responsible.
    Appeal from a judgment in favor of plaintiff and from an order denying a motion for a new trial.
    Action by Sarah Kirby against the president, managers, and company of the Delaware & Hudson Canal Company and Dell Brown for personal injuries received in consequence of the explosion of a hot-water heating apparatus in an hotel of which defendant Brown was owner and proprietor, and in which defendant railroad company, by permission of defendant Brown, had a ticket office; plaintiff being at the time of the accident in the sitting room of the hotel, which was from time to time used by ladies waiting for trains; she having gone there after taking a meal at the hotel, to wait for defendant’s train, on which she was to proceed on her trip. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

      Lewis E. Oarr, for app’lt railroad company; Henry A. Johnson (John H. Peck, of counsel), for app’lt Brown ; Warren, Patterson & Faulkner (Charles E. Patterson, of counsel), for resp’t.
   Herrick, J.

The action against the defendant is one founded upon alleged negligence. In such cases the plaintiff may proceed against any one, all, or such number of the wrongdoers as he may choose. Roberts v. Johnson, 58 N. Y. 613. The liability is a joint and several liability. Kain v. Smith, 80 N. Y. 458-468. In action of tort,' where two or more are sued together, a jury may find in favor of one defendant and hgainst the other. . Lansing v. Montgomery, 2 Johns. 382; Drake v. Barrymore, 14 id. 166; Lockwood v. Bull, 1 Cow. 322 ; Beal v. Finch, 11 N. Y. 128-134. In this case the legal relation between the plaintiff and the defendant Brown, and between the plaintiff and the defendant railroad company, were different; and it seems to me, therefore, that this is peculiarly a case where the above-cited rules are applicable, and where it might well be held that the jury had the power, if they thought the evidence justified them, in holding one defendant responsible and the other not. Upon the trial, in charging the jury, the court said, “I think they cannot find against one and in favor of the other, under the testimony in this case,” to which exception was taken. That, I think, was error, sufficient to call for a reversal of the judgment. That being so, there is no occasion at this time to examine the other questions argued upon this appeal.

The judgment and order appealed from should be reversed, and a new trial granted ; costs to abide tile event.

All concur.


text:
    Hilton Bridge Construction Company, App’lt, v. Gouverneur AND OSWEGATCHIE RAILROAD COMPANY et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Parties—Supplemental complaint.
    An allegation in a supplemental complaint for foreclosure of a mechanic’s lien that an assignee of a contractor claims an interest adverse to plaintiff, is Sufficient to bring him in as a necessary or proper party defendant.
    Appeal from a judgment, entered on an order sustaining a demurrer to the supplemental complaint to bring in other parties defendant.

      JEdward Winslow Paige, for app’lt; Q uggenheimer, Untermeyer & Marshall, for resp’t Louis Marshall. .
   Herrick, J.

This is an equitable action for the foreclosing of a mechanic’s lien. The defendant the New York Central & Hudson River Railroad Company heretofore made a motion to have the defendant Louis Marshall made a party to this action. The motion was granted. An appeal was taken therefrom, which was ultimately passed upon by the court of appeals in 145 N. Y. 390; 64 St. Rep. 834, where a full statement of facts of the action are set forth; and it was there held that the defendant Marshall was at least a proper, if not a necessary, party, as the assignee of the original contractor in the case. Thereafter the plaintiff, by supplemental complaint, brought in the defendant Louis Marshall as a party defendant. To that supplemental complaint the defendant Marshall demurred, which demurrer has been sustained in the court below.

That the defendant Marshall isa proper, if hot a necessary, party to this action, has been heretofore decided by the court of appeals, and is not an open question to us here now. The only question open for discussion is whether the plaintiff has pleaded sufficient facts in his supplemental complaint to bring the respondent Marshall in as a proper or necessary party to the action. That Moffett, Hodgkins & Clarke Company were the original contractors in this action, the plaintiff being the subcontractor under them. In this supplemental complaint the plaintiffs have reiterated all the matters and things set forth in the original complaint, and set forth a judgment in an action wherein the. Moffett, Hodgkins & Clarke Company were the defendants, and by which the defendants O’Brien and Boo raen were appointed receivers of the said Moffett, Hodgkins & Clarke Company. Then follows this allegation :

u And, further, that it is claimed by the above-named defendant Louis Marshall that before the appointment of such receiver the Moffett, Hodgkins & Clarke Company assigned to him, the said Louis Marshall, all its interest in any sum which might be found due and' owing to that company from the New York Central & Hudson' River Railroad Company.”

It is claimed here by the respondent Marshall that such allegation is not sufficient as against him. As heretofore stated, the court of appeals has held that Marshall, as the assignee of .the Moffett Company, is a proper party to this litigation. Section 447 of the Code of Procedure reads as follows:

“ Any person may be made a defendant who has or claims to have an interest in the controversy, adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of the questions involved therein.”

If the assignee of a contractor is a necessary or proper party in proceedings to enforce a mechanic’s lien, is one who claims to be an assignee a proper party? Is he an adverse party to the plaintiff, within the meaning of the Code? It seems to me that within the meaning of the section of the Code I have quoted, any person whom it is necessary or proper to make a party to the proceedings, for the complete determination of the rights of all persons concerned, and to finally determine the litigation, and who is not united in, or has a common interest with the plaintiff, or who refuses to join him in, the prosecution of the action, may be said to be a party adverse to the plaintiff. If I am correct in this, then it seems to me that an allegation, in the language of the Code, that such party “ claims ” such adverse interest, to wit, to be the assignee of the contractor, is a sufficient allegation of his interest in the proceeding. In the foreclosure actions, when it is desired to cut off parties who have acquired liens subsequent to that of the mortgage, by judgment,0decree, or otherwise, it has been customary, from time immemorial, to allege that such parties “have, or claim to have,” a lien subsequent to' that of the mortgage, the sufficiency of which statement, so far as I have been able to discover, has never been questioned. See Frost v. Koon, 30 N. Y. 428-448; Bloomer v. Starges, 58 id. 168. It will be observed that the language of the Code itself does not require an absolute statement of the interest of the adverse party. Under that, it is only necessary to allege that he claims an interest. The object and purpose of this section of the Code was to enforce the old equity rule that all persons interested in the subject of the suit should be made parties, either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and to secure a final determination of their rights. To accomplish this it is necessary not only to bring in any persons who have an interest in the controversy, or in the subject-matter thereof, in fact, but also those who even claim to have any interest therein. To finally dispose of all controversies, cut off all liens, and prevent a multiplicity of suits, it must be obvious that it is necessary not only to dispose of all actual interests, causes of action, or liens, but also of claims to such rights. So that if it is necessary and proper, for a complete determination-of the proceedings to foreclose a mechanic’s lien, to bring in the assignee of the original contractor, it is also proper, if not necessary, to bring in any person who claims to be such assignee; and an allegation that a defendant claims to be an assignee in an allegation of fact, in the language of the Code, and is sufficient to show that he is a proper party for a complete determination of the proceedings and to prevent a multiplicity of suits.

For these reasons the order sustaining should be reversed, with costs and disbursements of this appeal, and costs in the court below.

All concur.


author: Ward, J.

text:
    Daniel Crowell, as Administrator, etc., App’lt, v. Howard Thomas, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Master and servant—ITEaLiG-ENCE.
    The master is bound to take heed that he does not, through his want of care, expose his servant to unnecessary risks or danger, either in the character of the tools with which he supplies him, or the place in which he requires him to operate.

      2. Same—Concurrent negligence.
    Where, even though the negligence o£ the co-employes contributed to the accident, it is done in conjunction with the negligence of the master himself, through his alter ego, and without which the accident, would not have occurred, the master is liable therefor.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Charles Van Voorhis, for pl’ff; . Walter 8. Hubbell, for def’t.
   Ward, J.

The deceased, Elizabeth Crowell, a girl of eighteen years of age, was employed in the canning factory of the defendant in the village of Eairport, Monroe county, in the summer of 1892. She had worked in the factory the year before a short time, earning $1.25. In June, 1892, she worked a couple of weeks, and again about a week before the 9th of August, at which time she was fatally scalded, in consequence of an explosion of a barrel in the factory caused by steam. The business of the factory was canning fruit of various kinds. The duties "of tho deceased were to work at a table, handle, cleanse the fruit, pour syrup upon it, and assist in the canning. The barrel referred to wa§ stationed in a large room, where the girls and women employed in the factory were at work. ■ It was placed upon a table, and the top of the barrel was about seven feet high. It was an ordinary' barrel, with iron hoops, and not made specifically for the purpose for which it was used. From this barrel hot and cold water was taken, for the use of the factory in canning the fruit, as needed. The water was taken from an ordinary faucet in tho lower part of tho barrel. Two pipes were connected with this barrel, one a cold-water pipe and the other a steam pipe. These pipes entered the barrel from the top, and at each pipe, at a point just above the head of the barrel, was a valve, by means of which the water or steam could be turned on or shut off. The steam pipe where it entered the barrel was a three-quarter inch pipe. On the top of the barrel, and behind the two pipes, was a vent pipe an inch in diameter, and extending above the top of the barrel five or six inches. It was put there to allow the steam to escape from the barrel. The steam from the steam pipe communicated directly with the water in the barrel. There was no steam gouge at the barrel, so that you could tell how many pounds of steam there were in the barrel, and the only means of escape of steam was through the pipe above specified. An expert witness testified, in effect, that this barrel would hold about fifteen pounds to the square inch before bursting. The fireman of the factory testified that at the time of the accident he had on about seventy pounds of steam. The. steam pipe to the barrel was attached to a main pipe or feeder, that conveyed the steam directly from the boiler. The expert testified as follows:

“ Q. Gan you tell this jury how much pressure a common whisky barrel will hold of steam before it bursts ? How much to the square inch? A. .1 shouldn’t think it would exceed fifteen pounds. Q. Will you tell the jury on a common whisky barrel what the pressure would be of seventy pounds of steam to the square inch, coming from a steam boiler. A. Fifteen tons. The Court; Q. Will it be the same to the square inch on the barrel as in the boiler? A. Yes, sir."

James Burlinghame was the defendant’s superintendent at the factory, having full charge of the same, employing and discharging the workmen, and directing the whole operations of the factory, and there was evidence upon which the jury could find that in the management of the factory he was the alter ego of the defendant. He had had charge of it for several years; had been the owner of it prior to the ownership of it by the defendant. He was daily on duty at the factory, and appeared to be entirely familiar with its operation. His brother, Llewellyn Burlinghame, was an employe in the factory, and his principal duty was to take charge of this barrel, manipulate the steam connected with it, and take the water from it as needed. One witness says the girls and women did not draw the water from the faucet. “Llewellyn used to do that mostly. He most always attended the barrel. I never saw any woman draw hot water through the faucet before. That wasn’t our business.” This was said with reference to the fact of the deceased drawing the hot water on that morning, to which we shall refer hereafter. The evidence does not disclose that prior to the morning of the accident the deceased had anything to do with the barrel, or had any acquaintance with its use, or knew how the steam was communicated to or operated in the barrel, or what protection there existed against accident from the use of steam in the barrel. The steam had not been used in this barrel, until the morning of the accident, that season, except early in July, on one occasion, and the evidence tended to show that the deceased had no knowledge in regard to that transaction. The engineer of the factory and the brother having charge of the barrel had discovered that the cold water ran out of the escape pipe on account of the presiure, and to obviate this difficulty the engineer whittled out a plug to fill this escape pipe, and inserted the plug in the pipe about the 19th of July. This plug extended above the top of the pipe four or five inches. One witness swears that he saw the plug in the pipe a week or two before the accident. Another witness swears that while standing on the floor you could plainly see the plug; that it extended above, the barrel, so that you could see it plainly. Another witness testified that, before the plug was put in, cold water that was forced out by fhe pressure could be plainly seen, and also it could be seen that the water was not forced out after the plug was put in. The engineer testified that he cautioned the brother not to permit the plug to be in the pipe when the steam was putin the barrel. After the explosion of the barrel, and injury to the deceased, the plug was found in the escape pipe, establishing the fact that at the time of the explosion there was no escape of the steam that was being forced into this barrel. On the morning of the accident, and before the deceased went to work, and while the brother was at the barrel, the superintendent appeared, and directed the brother to go upstairs, and attend to other business, saying that he would attend to the barrel. The superintendent himself turned the steam on the barrel, and directed the deceased to attend to the faucet, and take the hot water to the table as needed. . She obeyed, and was engaged in this work when the explosion occurred that destroyed her life. The head of the barrel blew out, and she was scalded to death. There was no coil or pipe passing through the cold water in the barrel through which the steam could pass; a familiar contrivance for heating water. No caution was given to the deceased by the superintendent as to any risk or danger in her working around this barrel and operating this faucet. A very slight inspection of the barrel would have enabled the superintendent to have seen when hé turned this steam into the barrel, and directed the deceased to do this work, that the vent hole was closed by this plug, and there was no escape for the steam that was being put into this weak vessel; and it was for the jury to determine from the whole evidence whether he had not been guilty of negligence under the circumstances. The law governing such cases is well stated in Tissue v. Railroad Co., reported in 3 Atl. 667, by the supreme court of Pennsylvania, as follows:

“ While it is true that the master does n'ot warrant the absolute safety of those he employs to do his work, yet he is bound to take heed that he does not, through his own want of care, expos-his servants to unnecessary risks or danger, either in the character of the tools with which he supplies him, or the place in which he requires him to operate.”

See Bailey v. R., W. & O. Railroad Co., 139 N. Y. 302; 54 St. Rep. 550.

There was evidence to go to the jury upon the question whether the defendant, through his superintendent, did not understand the whole situation, the amount of steam that was liable to be forced into this barrel; the capacity of the barrel to withstand it; the means of escape, if any; whether any insnection was made of the barrel before putting, the steam into it, and putting the deceased at work there; whether it was not the duty of the superintendent to make such inspection; whether it was not negligence in having failed to do so.

The learned counsel for the defendant insists that, while the cause of the explosion was negligence, it was in consequence of the negligence of the engineer and of the brother, who were co-servants with the deceased. The difficulty with that contention is that the superintendent superseded the brother, took charge of the barrel himself, directed the deceased in her work, and was for the time being in charge of the cause of the accident. It was the superintendent that provided the unsafe and dangerous place for the deceased to work, without giving her notice of her danger. Even if the negligence of the coemployes contributed to this accident, it was done in conjunction with the negligence of the defendant himself, through his alter ego, and without which the accident would not have occurred. The defendant is therefore as liable as though he were the sole cause of the accident. Cone v. Railroad Co., 81 N. Y. 206; Booth v. Railroad Co., 73 id. 38; Brehm v. Railroad Co., 34 Barb. 256 ; Shear, and R. Neg. § 10. A master is liable for an injury to a servant caused by the concurrent negligence of the master and a fellow servant. De Weese v. Mining Co., (Mo. Sup.) 31 S. W. 110.

The exceptions taken at the trial bring up the question here considered. We are of the opinion that the case should have gone to the jury upon the question of the defendant’s negligence. A new trial should therefore be granted, with costs to abide event.

All concur.


author: Follett, J. O’Brien, J.

text:
    Abbie S. Nash et al., App’lts, v. Hall Signal Company et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Pleading—Complaint—Different defendants.
    Where two directors in a corporation waste its funds during one year and one of said directors in connection with another director, by some act not connected with the first, waste the funds in another year, the three cannot be joined in an equitable action brought by or in behalf of the corporation to compel them to account for and pay the damages sustained by these independent, wrongful acts, and the complaint, setting up such acts, is demurrable.
    Appeal from an interlocutory judgment, sustaining a demurrer to the complaint.

      Austin Abbott, for app’lts; Charles M Earle, for resp’ts.
   Follett, J.

In case A. and B., directors in a corporation, waste its funds during one year, and B. and C. directors, by some act not connected with the first, devastavit in another year, the three cannot be joined in an equitable action brought by or in behalf of the corporation to compel them to account for and pay the damages sustained by these independent, wrongful acts. Wasting the property of a corporation by its directors is a tort. A. is not liable for the acts of B. and G, and C. is not liable for the acts of A. and B., and these independent, tortious acts constitute distinct causes of action, which cannot be united in one complaint. The interlocutory judgment should be affirmed, with costs, on the opinion of Lawrence, J., at special term.

Van Brunt, P. J., concurs.

O’Brien, J.

(dissenting).—Upon the authority of Brinckerhoff v. Bostwick, 88 N. Y. 52, I think the action is maintainable. The suit is one brought by a stockholder, who, on behalf of the corporation, demands an accounting for the property which has been taken . or allowed to be taken from the corporation. The acts complained of, although happening at different periods of time, are but cumulative, and constitute a single cause of action. It is true that certain of these defendants were not directors, but were transferees of the assets of the corporation; but their being made parties does not change the nature of the action, nor make what was one cause of action multifarious. The purpose sought is to enable a court of equity to reach out and recover diverted assets. Although different relief may be accorded as against the different defendants, this does not effect a severance or multiplication of the cause of action. I do not think the demurrer upon this ground is good, and, as it was sustained in the court below, the judgment sustaining it should be reversed.

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

This is an action brought by resident stockholders of the Hall Signal Company, a corporation created under the laws of the state of Maine, having its business office in New York, against the directors and their transferees of its assets. The plaintiffs sue on behalf of themselves and all other stockholders who shall come in and contribute to the expenses of the action, and the corporation is joined as one of the defendants. It is alleged in the complaint that the directors, or some of them, have voted money and treasury stock from the treasury to some of their own number, and to their superintendent in some cases, without legal consideration; in some cases for grossly inadequate consideration, in some cases when no quorum was present, in some cases when the presence of the donee was necessary to a quorum, in some when the vote of the donee was necessary to a majority, and in all cases contrary to the standing rule of the board established under the direction, of a stockholders’ meeting. It is also alleged that they have voted treasury stock to some of their own number at $50, when they knew that said stock was selling at over $90; that they have taken stock from the treasury at $50, and with it filled orders at $90 and over, obtained from the purchasers by the company’s agent; that the directors have failed properly to apply and account for moneys received by them for the company; that they have neglected its interests, and imperiled its assets. It is also alleged that during all this time the corporation had its principal office in the city of New York for doing business, and that those transactions were had in the city of 'New York, and that the defendants issued their circulars from the office of the defendant company, 50 Broadway, New York. It is further alleged that the principal individual defendants voted five hundred shares of the stock to one of their own number, the president, at one-half the par and little more than one-half the market value, under the pretext of remunerating him for “extraordinary services” previously rendered; that they also voted to him an increase of salary to $1,000, and paid a back amount for four months before the time of the vote, and that they paid to him, and he received from them, out of the treasury of the company, such baelc pay. Furthermore, that after their superintendent had been employed about a year and a half at a fixed salary, and had assigned to the company the inventions and improvements made by him, and the company had become the patentee and owner thereof, they voted three thousand shares of the stock to him, on the pretext that is was a reasonable and necessary compensation for assignments made a year and a half previously, and that a transfer of these three thousand shares to him was only a cover for allowing the president and treasurer, who are defendants, to take and dispose of the three thousand shares at their.pleasure. Many other statements and allegations are also contained in the complaint, designed to show that a discovery and accounting are necessary. One of these statements is to the effect that the directors have bought, with the funds of the corporation, and without the stockholders’ assent, shares of stock in the corporation theretofore issued to other persons or corporations. That those acts were done with intent to gain control of the corporation, and to dictate its corporate acts and the acts of the board. There are many other acts of improper conduct alleged on the part of the directors, or some of them, but enough has been stated to show the general character of the complaint. It is further alleged in the complaint that the reasons why this suit is brought by the plaintiff are that the defendants Hail, Gilmore, Parker, Houston, Webb, Miller and James, or some of them, now compose the board of directors of said corporation, and that it would be useless to ask said board to bring this action, as said directors, or .a majority of them, are chargeable jointly and severally with the management of the corporation,- and have pecuniary interests opposed to the interest of the corporation and of the stockholders. It is stated in the plaintiff’s brief, and not denied, that all the individual defendants have answered. The corporation alone demurs to the complaint, assigning as ground of demurrer: First, that the court has no jurisdiction of the subject .of. this action; second, that the complaint does not state facts sufficient to constitute a cause of action; third, that the court has no jurisdiction of the defendant; fourth, that causes of action have been improperly united, in that a cause of action in equity against the corporation has been joined with causes of action at law against the other defendants, or some of them, specifying the different paragraphs of the complaint in which said alleged iimproper joinder of causes of action appear, and also that the causes of action stated in the complaint do not affect all the parties to the action ; fifth, that there is a misjoinder of parties plaintiff, 'in that Charles F. Ulrich appears by the complaint to have received his stock long after each and every of the acts and transactions set forth in the complaint had occurred, while the plaintiffs Abbie S. Hash and Anna S. Hash are alleged to have received their stock in 1892, when some of the transactions and acts 'set forth in the complaint had not taken place. By the complaint it appears that no relief in favor of the plaintiffs individually is asked. The relief prayed for is that the defendants who have not demurred may be required to repay to the treasury of the defendant corporation the amounts alleged to have been illegally taken or obtained by them therefrom.

There is enough stated in the complaint, I think, to bring this case within the principle established by Brinckerhoff v. Bostwick, 88 N. Y. 52; and Briggs v. Spaulding, 141 U. S. 132. It is quite apparent from the allegations of the complaint, and from the very demurrer which is interposed in this action, that the corporation refuses to prosecute the individual directors who are claimed to have been guilty of an abuse of their trust or a misapplication of the funds of the company, and it is also quite apparent that the individual defendants, against whom relief is mainly sought, are still in control of the corporation. As was said by Raparlo, J.r in the case of Brinckerhoff v. Bostwick, supra: “ In such cases a demand upon the corporation to bring suit would be manifestly futile and unnecessary. A suit prosecuted under the direction and control of the very parties against whom the misconduct is alleged and a recovery sought would scarcely afford to the shareholders the remedy to which they are entitled; and the fact that the delinquent parties are still in control of the corporation is of itself sufficient to entitle the shareholders to sue in their own names. Hodges v. Screw Co., 1 R. I. 312; Heath v. Railway Co., 8 Blatchf. 347, Fed. Cas. No. 6,306.” In addition to the cases above cited, the cases of Holmes v. Abbott, 53 Hun, 617; 25 St. Rep. 644; Garner v. Harmony Mills, 6 Abb. N. C. 212; Gaines v. Chew, 2 How. 619; and Brinkerhoff v. Brown, 6 Johns. Ch. 139,—are authorities which support the right of the plaintiffs to maintain this action. I am of the opinion, also, that this court has jurisdiction of the action. Fisk v. Railroad Co., 53 Barb. 513; Code Civ. Proc. § 1780. The presumption is that the plaintiffs are "residents of this state, and objection cannot be taken to the jurisdiction of the court on the ground of their nonresidence unless the fact of such nonresidence appears upon the face of the complaint. In Gurney v. Grand T. Railroad Co., 38 St. Rep. 557, Yan Brunt, P. J., said : “Objection to jurisdiction -may be raised by demurrer where it appears upon the face of the complaint that the court has no jurisdiction of the person or subject-matter; but, unless want of jurisdiction appears upon the face of the complaint,- the objection must be raised by a motion to set aside the summons where an appearance would confer jurisdiction ; or in cases where an ap•pearance would not confer jurisdiction it may be raised by answer, or at the trial, or upon1 appeal, or by the court itself.” The demurrer in this case is general, and, as some of the alleged illegal resolutions are stated in the complaint to have been passed at a meeting or meetings of the directors held in the city of New York, it would appear that a general demurrer on the ground of want of jurisdiction cannot be sustained. Without pursuing this branch . of the case further, it is sufficient for me to refer to the opinion of Mr. Justice Patterson in denying the motion for an injunction. I do not think that the objection that there is an improper joinder of the plaintiffs in this action can be sustained. Both of the plaintiffs are stockholders, and, for the purposes of this demurrer, must be presumed to be bona fide holders of their stock; and it does not affirmatively appear upon the face of the complaint that the plaintiff Ulrich acquired or became possessed of his stock after all the transactions, the validity of which forms the subject of this action, bad taken place.

The remaining question in the case is whether the complaint is not multifarious, within the meaning of subdivision 7 of section 488 of the Code of Civil Procedure. Where two causes of action are joined in the same action, a demurrer to the complaint upon the ground that all of the defendants are not affected by both causes will lie, even at- the instance of a defendant who is so affected. See Nichols v. Drew, 94 N. Y. 22 ; Stanton v. Railway Co., 2 id. 298, It is quite apparent that all the causes of action stated in the complaint do not relate to all of the defendants. Without specifying all the instancrs in which causes of action are stated which do not relate to or affect all-the defendants, it is sufficient to say that in paragraph 10 of the complaint a cause of action against Hall, Cochran, Gilmore, and Ingraham, is stated for the sale of stock to the defendant Cochran at an improper or illegal price, and that damages are prayed for against those four defendants for the sale by them as directors to the defendant Cochran. The defendant Miller is not concerned'in this cause of action, and had no part in the transaction. So far as cari be ascertained from the complaint, Miller did not become a director, nor have anything to do with the defendant company at all, until May 4, 1894, when it is alleged that he, with other directors, voted illegally to increase Hall’s salary. This appears to be the only cause of action against Miller set out in the complaint, except the general charge in paragraph 41 that he failed to keep proper accounts and records of the company. The alleged illegal sale of stock to Cochran in 1891 has nothing to do with the alleged illegal increase of the president’s salary in 1894, nor were all of the same directors concerned in both transactions. Again, the allegation contained in the thirty-ninth paragraph of the complaint in respect to the alleged illegal transfer to and acceptance by the defendant Webb of stock illegally issued in December, 1893, has nothing to do with the transaction in which Miller is alleged to have been concerned in paragraph 30 of the complaint. There are other instances in the complaint of the joinder of causes of action in which some of the defendants were concerned with others in which only a portion of the defendants took part. The case, therefore, seems to fall within the doctrine laid down in Nichols v. Drew, supra, and Stanton v. Railway Co., 2 N. Y. Supp. 298. For these reasons I am of the opinion that the demurrer on the ground that causes of action have been improperly united should be sustained, and thae the defendants have judgment thereon, with leave to the plaintiffs to amend upon payment of costs.


author: Follett, J.

text:
    Francis Higgins, as Receiver, App’lt, v. James J. Ridgway, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

      2. Bills and notes—Accommodation endorser.
    An agreement between a president of a bank and an accommodation endorser that the latter would not be held on a note, is a defense to his liability thereon.

      2. Evidence—Bills and notes.
    In such action, it is competent to prove by the accommodation endorser that he received no benefit from the note.
    Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.

      Benjamin Yates, for app’lt; Edward P. O'Dwyer, for resp’t.
   Follett, J.

This action was begun February- 23, 1893, to recover on a promissory note made and indorsed by the defendant October 31, 1890, whereby, for value received, he promised to pay to his own order $14,250, three months after date, at the North River Bank, in this city. The defense interposed is that the note was made and indorsed for the accommodation of the bank, and upon the agreement of its president that the defendant should not be held liable thereon. At the time the note was made, the defendant was a clerk of Paige, Carey & Co. Mr. Paige, the senior partner, was a director of the North River Bank, and had extensive dealings therewith.' The defendant testified that, in 1889, Mr. Gedney, the president of the bank, requested him to make a note for $15,000, but that he objected, saying that his note for that amount would not be good, and that he did not wish to do it; that Mr. Gfedney replied: “The note is for the bank. You will get nothing for it, and you will not be held on the note.” The defendant made the note, which was passed to the bank, and went to the credit of the account of Paige, Carey & Co. This note was four times renewed, the last renewal being the one in suit. When or by whom the indebtedness to the bank was reduced from $15,000 to $14,250 does not appear. The defendant testified that, when the note was last renewed, he objected to signing it, and that Mr. Gedney replied: “You take no risk. You are not held on the note, and you assume no obligation.” The defendant received no benefit from the original note or any of its renewals. The cashier of the bank testified that the' avails-of the first note, of which all others were renewals, were credited to the loan account of Paige, Carey & Co. It is conceded that the defendant’s indorsement was an accommodation one, and that he received no benefit therefor, which fact was known to the president and cashier of the bank. The president of the bank was sworn as a witness, and denied that he told the defendant that he would not be held on this note; but he testified that the defendant objected to signing the original notes and its renewals, and he told, him that he did not think he would be called upon to pay it. The trial court submitted but a single question to the jury, which was whether there was an agreement between the president of the bank and the defendant that he would not be held liable on the note. The jury were instructed that, if such an agreement were not made, they must find for the plaintiff, but, if it were, they must find for the defendant. To this instruction the plaintiff excepted, which is the only exception taken by the counsel for either party to the charge. The agreement testified to by the defendant, and found by the jury to have been made, was a defense to,the note. Garfield Nat. Bank v. Colwell, 57 Hun, 169 ; 32 St. Rep. 929. There is no. distinction, in principle, between the case cited and the one at' bar. This note was never delivered by the defendant, nor received by the bank, for the purpose of charging the defendant with liability thereon.

It is urged that the plaintiff’s exception to the following question was well taken : “Q. Was there ever credited to you with the North River Bank any suin'of money or any credit by reason of the note in suit, or any of its predecessors ?” The defendant answered, “Mo.” It was entirely competent to show that the defendant received no benefit from the note. The cashier of the bank so testified at folio 52. It cannot be said that the verdict of the jury was contrary to the evidence. It was simply a question of credibility between the defendant and the president of the bank; and the circumstances under which the note was made, the way the avails were used, and the situation of the defendant, who was a mere clerk of Paige, Carey & Co., to whose credit the avails were placed, strongly tended to render it highly probable that the defendant testified to the truth.

The judgment and order should be affirmed, with costs.

All concur.


text:
    In the Matter of the Petition of Charles H. Corbett et al., for the Payment of a Claim Against an Estate.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Executors, etc—Claim against decedent—Unverified answer—
    Waiver.
    An objection to the want of a verification of the executor’s answer, in a proceeding to compel the payment of a claim, must be made before the hearing.
    3. Same—Answer.
    An answer in such case, which alleges that the estate is insolvent and not sufficient to pay its indebtedness, and that the claim of the petitioner has been settled, compromised, and fully satisfied during the life of the deceased, aud is not a legal claim against his estate, is sufficient to show that it is doubtful whether the claim is valid and legal and denying its validity or legality.
    Appeal from a decree granting the application.

      A. B. Ottaway, for app’lt; Walter L. Sessions, for resp’ts.
   Ward, J.

In December, 1894, Charles H. Corbett and William H. Hart presented a petition to the surrogate of Chautauqua county setting forth that they were judgment creditors in a judgment entered and docketed in the clerk's office of Chautauqua county on May 10, 1890, for the sum of $659.65, and interest thereon, less $350 paid May 8, 1893. This judgment was against Chauncy L. Sheldon, deceased. The petition alleges that Sheldon had departed this life leaving a last will and testament, which had been admitted to probate and letters testamentary issued thereon to the respondent A. J. Graham, as sole executor of the will; that such executor had qualified, and made an inventory of the personal property of the deceased, amounting to $1,932.92, and that the executor had sufficient assets in his hands applicable to the payment of such judgment, that could be applied thereon without injuriously affecting the rights of others entitled to payment from the estate of the deceased; and praying a decree requiring the executor to render an account of his proceedings and pay the judgment, and that he be required to show cause why he should not do so. The order to show cause was granted, and upon its return the petitioners appeared by attorney, and the executor also appeared, and by attorney, and filed an answer entitled in the proceeding, which, among other things, alleged that the estate of the said Sheldon was insolvent, and there would not be sufficieht assets to pay the indebtedness of the said estate and the expense of administration, and further allege “ that the claim mentioned and described in the petition herein was compromisedj settled, and fully satisfied during the lifetime of Ohauncy L. Sheldon and that the same was not a legal claim against the estate of Chauucy L. Sheldon. Wherefore the executor prays for a decree of the court denying the petition of the petitioners, together with costs.” This answer was not verified, although in writing. No objection was made on behalf of the petitioners to the want of such verification, or that the answer was insufficient in any respect; but the parties proceeded before the surrogate to litigate and dispose of the matters stated in the petition and the answer. On behalf of the petitioners the probate of the will of the deceased and the inventory of his estate were proved, as well as the judgment set forth in the petition.

The executor offered in evidence a receipt of the petitioners given to the deceased, which was as follows : "

Sherman, N. Y, May 8, 1893.

“ Received of 0. L. Sheldon three hundred and fifty dollars in full satisfaction of judgment against H. Sheldon & Go., provided a check we have taken against G. G. Bennett is paid when due, which is ($333.90 amount of check) July 20, 1893.

Hart & Corbett.”

Walter L. Sessions was the attorney appearing for the petitioners upon such proceeding,» and he admitted in evidence “ that the sum of $350, the amount of this receipt (the receipt above given), was paid in.full,” and he further admitted that the check of O. G. Bennett referred to in the receipt was paid, and constitutes a part of the $350.

The surrogate found sufficient assets out of which said judgment could he paid without'injury to the creditors, and directed the payment of the balance claimed upon the judgment of the petitioners out of such assets, and refused to dismiss the petition. This proceeding was under section 2722 of the Code of Civil Procedure, which provides that a creditor may take proceedings before the surrogate for the payment of his debt, or his just proportional part, at any time after six months have expired after letters were granted; and the section further provides that on the presentation of such petition the surrogate must issue a citation accordingly, and on the return thereof he must make such a decree in the premises as . justice requires, but must make a decree dismissing the petition without prejudice to an action or an accounting in behalf of the petitioner, where the executor or administrator files a written answer duly verified setting forth facts which show that it is doubtful whether the petitioner’s claim is valid or legal and denying-its validity or legality absolutely or on information and belief.” The contention of the appellant is that such an answer has been filed by the executor, and consequently the proceeding should have been dismissed, while the petitioners contend that the answer does not meet the requirements of the statute, and was not verified as required by it. Other points are raised by this appeal which it is unnecessary to consider here.

The learned surrogate filed an opinion in the proceeding, which is before us, wherein he seems to concede that he had no authority to try the question whether there had been a valid compromise, settlement, or satisfaction of the judgment between the petitioners and decedent, under the line-of authorities of which Jaffray v. Davis, 124 N. Y. 164; 35 St. Rep. 106, is an instance; but he says the question presented to him was whether the issue as raised by the executor’s answer deprived the surrogate of jurisdiction; and he concludes that the executor had failed to file the answer required by section 2722, above cited, in that the answer was not verified, and it fails to set forth facts showing the legality and validity of the claims, or to deny the same. And he further concludes that the only question before him was whether there was personal property of the estate of the deceased applicable to the payment of the judgment which could be applied without injuriously affecting the rights of others; and he holds, upon the inventory alone (there being no other evidence of the fact before him), that there was such property in the hands of the executor sufficient to pay the judgment, and ordered it to be paid. By failing to object (so far as this record discloses) until after the decree had been made and entered to the want of verification of the answer, and proceeding to the proof as though the answer was sufficient in that respect, the petitioners waived the objection that they here make, and that the surrogate relied upon, that it was not verified. A person can valve a statutory, and even a constitutional, provision in his own favor. In re Cooper, 93 N.Y. 507; Vose v. Cockcroft, 44 id. 415; Buell v. Trustees, 3 id. 197. He can waive the right of trial by jury, and many other important rights in legal proceedings, civil and criminal. The objection that a pleading is not verified cannot be taken at the trial (Schwartz v. Oppold, 74 N. Y. 307), and it is a familiar rule that a party receiving without objection an unverified pleading, "where one is required, waives the right to object to the pleading for the want of verification. The answer was certainly sufficient, in the language of subdivision 1 of section 2722 of the Code, to show that it is doubtful whether the petitioners’ claim is valid and legal, and denying its validity or legality. It alleges that the estate is insolvent and not sufficient to pay the indebtedness of the estate. It alleges that the claim of the petitioners has been settled, compromised, and fully satisfied during the lifetime of Sheldon, and was not a legal claim against his estate. The averment that it was not a legal claim against the estate was equivalent to a denial that it was so. The allegation that the claim had been satisfied and settled was sufficient to admit proof of the fact so alleged. The parties so regarded it upon the proceeding before the surrogate, and gave proof upon the issues raised by the pleadings. That proof showed a compromise and settlement of the petitioners’ claim, sustaining the allegations of the answer to the extent of creating a disputed claim or question as to whether there was'an accord and satisfaction, or whether the estate in equity was entitled to a relief or discharge, either in part or in whole, from the judgment which the surrogate’s court had no jurisdiction to try. McNulty v. Hurd, 72 N. Y. 518; Jaffray v. Davis, 124 N. Y. 164; 35 St. Rep. 106; and see cases cited at page 520, 72 N. Y. supra. The surrogate should have dismissed the proceedings for want of jurisdiction.

Another difficulty appears in the way of the petitioners. The surrogate adjudged that the deceased left property sufficient to pay their debt. There was no proof before him, so far as appears by the record before us, to justify such a conclusion. The inventory upon which the surrogate seems to have relied was the only proof, and that was insufficient.

The decree appealed from should be reversed, with costs to be paid by the respondents.

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


author: Per Curiam.

text:
    James E. Clement, Resp’t, v. Congress Spring Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Tbiai,—Nonsuit.
    Failure to move for a nonsuit or to ask for a direction of a verdict precludes the defendant from moving to set 'aside the verdict as against the evidence.
    2. Witness— Ceedibility.
    The credibility of two witnesses, whose testimony is in direct conflict, is for the jury.
    Appeal from a judgment entered on a verdict in favor of the plaintiff.

      J. W. Grane {A. W. Shepherd, of counsel), for app’lt; J. W. Houghton, for resp’t.
   Per Curiam.

— The sole question in this case was whether plaintiff was employed by defendant for one year from March 1, 1892, as he claimed, or whether such employment ceased October 1, 1892, when-he was discharged by defendant. On this question there were only two witnesses sworn,—the plaintiff in his own behalf, and Mr. Sheehan on the .part of defendant. The testimony of the two witnesses w;as in direct conflict. Plaintiff swore positively that he was hired for one year from March 1, 1892, while Mr. Sheehan testified that his employment ceased on October 1st. We are unable to see how we could properly reverse the judgment on the facts.

The defendant made no motion for a nonsuit, or for a direction for a verdict, but acquiesced in the submission of the case to the •jury. In Pease v. Bell, 7 Hun, 454, Learned, J., says:

“The failure of a defendant to move for .a nonsuit, or to ask the court to direct a verdict for the defendant, is an admission that there is sufficient evidence to go to a j ury; and the defendant is thereby precluded from moving to set aside 'the verdict as against evidence.”

See, also, Barrett v. Railroad Co., 45 N. Y. 628-682.

Had the defendant, however, moved for a nonsuit at the close of the trial, or for a direction for a verdict, this was not one of those cases where the trial judge could properly have withdrawn the case from the jury. It is only where there is a decided preponderance of evidence in favor of one of the parties that a court is justified in directing a -verdict or granting a motion for nonsuit.

See opinion or Potter, J., in Morss v. Sherrill, 63 Barb. 21. Under the doctrine laid down in the case cited and many other "kindred cases, it was the province of the jury to pass upon the credibility of the two witnesses sworn in the case, there being no decided preponderance of evidence either way.

We have examined the exceptions to the rulings of the court below taken on the trial, and think none of them require a discussion or a reversal of the judgment.

Judgment affirmed, with costs.


text:
    Edward Butcher, Jr, App’lt, v. John L. Henning et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Appeal—Restitution.
    The restitution of money, paid under a judgment, which is afterwards reversed, will not be ordered, where the money was paid over to the successful party's attorney in satisfaction of a debt due from his client.
    Appeal from a judgment in favor of defendants.
    This action arose out of a previous suit brought by Bullard & Howe, plaintiff’s-assignors, against James H. Kenyon and Ellen M. Kenyon, in which the Kenyons recovered judgment, which was affirmed on appeal to the general term, and a motion for leave to go to the court of appeals was denied. Thereafter Bullard & Howe voluntarily paid" to defendants herein, who were attorneys of the plaintiff in that suit, the costs sought to be recovered in this action, and defendants, acting on the advice of their clients, applied the sum so received in payment of debts due by their clients for printing, and also as a payment on account. Subsequently a motion for reargument was granted in the suit against defendants' clients, and upon a rehearing the judgment was reversed, the case retried, and judgment rendered against the said Kenyons.

      B. G. Bullard {B. B. Bullard, of counsel), for app’lt; John J. Healey, Jr. (William H. McCall, of counsel), for resp’ts.
   Per Curiam.

In Langley v. Warner, 3 U. Y. 327, it was held by the court of appeals that where a judgment had been collected, and the money paid to the attorney who prosecuted - the suit, an action will not lie against the attorney to recover back the money after a reversal of the judgment, although by agreement between him and his client, he retained the money in payment of a debt from the latter to him. The facts in the case cited were quite similar to those appearing in the case under consideration. We are not aware that the doctrine established in Langley v. Warner, supra, has ever been doubted or overruled. Grauer v. Grauer, 20 N. Y. Supp. 854; Wright v. Nostrand, 53 N. Y. Supr. Ct. 381-386; Simpson v. Hornbeck, 3 Lans. 53-55; Forstman v. Schultinq, 108 N. Y. 110-113; 13 St. Rep. 483.

The judgment should be affirmed, with costs.


text:
    David Van Schaick, Resp’t, v. Joseph H. Ramsey, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Damages—Conversión.
    In an action for conversion, the plaintiff can recover only his interest in the property at the time of the conversion.
    Appeal from a judgment for plaintiffs.

      Maynard & Gilbert (Isaac IT. Maynard, of counsel), for app’lt ; William F. Beutler, for resp’t.
   Putnam, J.

On the trial, plaintiff read in evidence a contract made between him and defendant’s testator, in two parts, marked “A” and “B,” of which-the following is a copy:

“ Plaintiff’s Exhibit A.

“ For value received, and in consideration of one dollar, in hand paid me by Joseph H. Ramsey, of Howe’s Cave, N. Y., I, David Yan Schaick, late or at present of Albany, hereby agree with the said Ramsey to sell him at his option one hundred shares New York and Montana Mining and Milling Company stock, at any time he may elect to buy the same one year from this date, at pat-value of one hundred dollars for each share. The scrip for the same shall be issued by the company to the said Ramsey for me, to be used as collateral to"raise five thousand' dollars for the use of the company on my account. If the said Ramsey does not elect to buy the stock, the scrip for the same shall be transferred to me. • David Yan Schaick.

“Dated July 27th, 1885.”

“Plaintiff’s Exhibit B.

' “Whereas, one hundred shares of the New York and Montana Mining and Milling Company stock has been issued to me by the said company in pursuance of an agreement of this same date between David Yan Schaick and myself, the stock is to be used as collateral to raise five thousand dollars for the use of the company on his account. In case the said one hundred shares are not purchased by me as provided in the said agreement, the scrip for the same to be transferred to the said Yan Schaick.

“Dated July 27th, 1885. J. H. Ramsey”

It was admitted that the New York & Montana Mining & Milling Company issued stock certificate No. 9 for 100 shaves, dated July 27, 1885, to Joseph H. Eamsey, the defendant, and that the defendant, subsequent thereto, sold and transferred the said certificate and the stock therein called for to Greorge Westinghouse, Jr., of Pittsburgh, Pa., and received therefor $10,000. It also appeared that, after the agreement A and B was executed, plaintiff transferred the stock therein described to Greorge Westinghouse, Jr., as collateral for a loan of $5,000, which sum Eamsey received, and paid to the New York & Montana Mining & Milling Company. Afterwards Eamsey transferred the stock to Westinghouse. The latter paid him $10,000 for the stock, —$5,000 when it was placed with him as collateral, and $5,000 afterwards, when the absolute transfer was made. Plaintiff claimed that, by the transfer of the stock to Weitinghouse, Eamsey unlawfully converted it. The referee so found, and awarded judgment against the defendant for $10,000, the par value of said stock, with interest and costs.

Sedgwick, in his work on the Measure of Damages (volume 2, p. 391, marg. p. 480), says:

“There are many cases, however, where the plaintiff, though entitled to recover, is not at liberty to receive the full value of the property. So, in cases of pledge, if the pledgee tortiously sell the pledge, or otherwise wrongfully put it out of his power to return the article pledged, the pledgor’s right of recovery is clear; but the pledgee in such action has a right to have the amount of his debt recouped in the damage.’’

See, also, Insurance Co. v. Dalrymple, 25 Md. 269-307; Wheeler v. Percles, 43 Wis. 332; Behlen v. Perkins, 78 Ill. 449; Grumann v. Smith, 81 N. Y. 25; Smith v. Reeves, 33 How. Prac. 183.

In the case under consideration, assuming that Joseph II. Eamsey, by the absolute transfer of the stock to Greorge Westinghouse, Jr., converted it, and hence that the plaintiff was entitled to recover, yet, as in the case of a pledgor, his recovery, should not have exceeded the amount of his actual damage. He should only have been allowed to receive an indemnity for the actual injury. Let us consider the situation at the time of the alleged conversion. Eamsey had then, as he was authorized to do under the contract A and B, pledged the stock to Westinghouse, to secure a loan of $5,000. He had received the money, and paid it into the company for the plaintiff. Thus, in fact, Eamsey had paid plaintiff $5,000 on account of the stock by paying that sum to the corporation on his account. If, then, Eamsey had never made any subsequent transfer to Westinghouse, and had concluded to take the benefit to purchase under the contract, plaintiff having received $5,000 on account of the stock, Eamsey would only have been obligated to pay him the additional sum of $5,000. Again, if there had been no subsequent sals bv Eamsey to Westinghouse after the transfer to the latter as collateral for a loan of $5,000, and Eamsey had not elected to purchase the stock before plaintiff would have been entitled to the retransfer from Westinghouse, he would have been obligated to pay the latter the sum of $5,000 loaned upon the stock. Before the alleged conversion, plaintiff had received $5,000 on his stock collected and paid him by Ramsey. It is not alleged or claimed that he ever had repaid to Ramsey or Westinghouse the amount so loaned. Wc think plaintiff’s real interest in the stock should be deemed to have been $5,000, and that his recovery should have been limited to that sum and the interest thereon.

If the judgment from which this appeal is taken is allowed to stand, the respondent will receive for the stock the amount of the judgment, $10,000 and interest, and also the $5,000 paid by Ramsey to the New York & Montana Mining & Milling Company on his account. Although -Ramsey lawfully obtained for and paid for plaintiff $5,000 on the stock before the alleged conversion, and although such conversion was of stock legally mortgaged for one-half its value, plaintiff, by the judgment herein, was allowed to recover the full value of the stock. We think plaintiff’s damages should have been limited to the actual amount of his interest in the stock at the time of the alleged conversion.

There are other questions raised which we do not think it necessary to consider or discuss. ”

For the reasons above suggested, the judgment should be reversed, a new trial granted, and the referee discharged; costs to abide the event.

All concur.