author: Gray, J.

text:
    Amanda Palmeri, Resp’t, v. The Manhattan Railway Co., App’lt.

      (Court of Appeals,

      Filed May 3, 1892.)

    1. Master and servant—Servant’s torts.
    Plaintiff purchased a ticket of defendant’s agent and passed through to • take the cars after some altercation about the amount of the change. The ticket agent immediately afterwards came out upon the platform of the station, charged her with having given'him a counterfeit piece of money, and demanded another quarter in place of the one given her. She refusing to comply with his demands he called her a counterfeiter and a common prostitute, placed his hand on her and told her not to stir until he had procured a policeman to arrest and search him. He detained her for a while, but let her go as he failed to get an officer. Held, that defendant was liable, as the ticket agent was acting within the scope of his employment in doing the acts complained of.
    2. Same—Evidence—Habitual litigant.
    In such case an offer by defendant to prove that plaintiff was a habitual, litigant is inadmissible, as it had nothing to do with the case.
    Appeal from judgment of the supreme court, general term,, second department, affirming judgment for plaintiff, entered upon a verdict of a jury.

      Brainard Tolies, for app’lt; James D. Bell, for resp’t.

       Affirming 39 St. Rep., 23.

   Gray, J.

Quite recently we had occasion to consider a case where the ticket agent of a railroad company directed the arrest by police officers of a person in the railroad station whom he suspected of being a counterfeiter, and the company was thereafter sued for false imprisonment. In that case the facts were briefly' stated that the ticket agent had been notified by the police authorities to watch for men of a certain description suspected of passing counterfeit bills. Upon a certain occasion two men came into-the station and one of them tendered a bill in payment for tickets. The agent suspected them of being the counterfeiters wanted by the police and thought the bill looked “ queer,” but, nevertheless,, took it and gave back the change with the tickets, saying nothing to them. He then sent for a police officer, to whom he pointed out the men, who were there on the station platform. The bill was subsequently pronounced to be genuine and the man was-•discharged. We held that the company was not responsible in damages, because the agent was not, in what he did, acting within the scope and line of his duty. His acts were not such as could be deemed to be performed in the course of his employment, or such as were demanded for the protection of his employer’s interest; but rather those of a citizen desirous of aiding the police in the detection and arrest of persons suspected of being engaged in tire commission of a crime. His duty, as the particular agent of the company, was to have refused to accept and change the bill tendered in payment for passage tickets if he supposed it was not genuine; and when he did accept it, his only purpose could have been to further the efforts of the police authorities by such a step, .and could not possibly be considered as something which his employers or his employment required of him. I refer to the case of Mulligan v. New York & Rockaway Beach Railway Co., 42 St. Rep., 83.

In the present case, however, the acts of the ticket agent were ■of a different character.

The plaintiff purchased a ticket of the agent at the elevated railroad station, and passed through to take the cars; after some altercation about the amount of the .change. The ticket agent, immediately afterwards, came out upon the platform of the station, ■charged her with having given him a counterfeit piece of money, and demanded another quarter in place of the one given him. She insisted upon her money being genuine and refused to give another quarter, or to hand back the change. He became angry and ■called her a counterfeiter and a common prostitute. He placed his hand upon her and told her not to stir until he had procured -a policeman to arrest and to search her. He detained her in the station for a while, but let her go when he failed to get an officer. This action was then brought to recover damages; because of injury sustained from the unlawful imprisonment, or the restraint imposed upon the plaintiff’s person, accompanied by the slanderous words publicly spoken concerning her. The jury believed her story and the judgment which she has recovered the appellant seeks to avoid principally upon the ground that the ticket agent was acting outside of the scope of his employment in doing the acts complained of. The appeal must fail. This is not like the Mulligan case. Here the agent was acting for his employers and with no other conceivable motive ; losing his temper and injuring ■and insulting the plaintiff upon the occasion. He believed that plaintiff had passed a counterfeit piece of money upon him and thus had obtained a passage ticket and good money in change. What he did was in the endeavor to protect and to recover his employer’s property and if, in his conduct, he committed an error, which was accompanied by insulting language and the detention •of the person, the defendant as his employer is legally responsible in an action for damages for the injury. For all the acts of a ■servant or agent which are done in the prosecution of the business entrusted to him the carrier becomes civilly liable, if its passengers or strangers recel ve in j ury therefrom. The good faith and motives of the servant are not a defense, if the act was unlawful. Once the relatian of carrier and passenger entered upon, the carrier is answerable-for all consequences to the passenger of the willful misconduct or-negligence of the persons employed by it in the execution of the contract whiqh it has undertaken toward the passenger. This is a reasonable and necessary rule, which has been upheld by this court in many cases, of which Weed v. Pan. R. Co., 17 N. Y., 362; Hamilton v. Third Ave. R. R. Co., 53 id., 25; Stewart v. B. & C. R. R. Co., 90 id,, 588, and Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 id., 117; 30 St. Rep., 578, are sufficient instances.

What materially distinguishes the present from the Mulligan case is that there the servant of the company was not acting fertile protection of the company’s interests, but went quite outside of the line of his duty to perform a supposed service to the community, by procuring the arrest of criminals whom he knew the authorities were endeavoring to apprehend. That did not enter-into the transaction of his employer’s business; whereas, here the ticket agent clearly was engaged about the company’s affairs; but,, in the belief of the jury, unlawfully detained the plaintiff and insulted her by slandering her character. It is needless-to consider the case of Mali v. Lord, 39 N. Y., 381, so much relied upon by the appellant. There is no parallel between the case of a clerk in a store, who has a person arrested and searched upon suspicion of a theft, and whose general employment could not warrant such, an act, arid the present case of an agent, who is considered to be invested by the carrier with a discretion and a duty in matters of his employment, from which an authority is inferable to do whatever is necessary about it. Though injury and insult are acts in departure from the authority conferred or implied, nevertheless, as they occur in the course of the employment, the master becomes responsible for the wrong committed. Judge Andrews, in Rounds v. D., L. & W. R. R. Co., 64 N. Y., 129, points out the distinguishing principle of these cases and- refers to Mali v. Lord in the course of his opinion.

The offer by defendant, upon plaintiff’s cross-examination, to-show that she was a habitual litigant, was properly excluded.. It had nothing to do with the issue, and, if true, would not prove her unworthy of belief; any more than it would follow,. from her admission of its truth, that the litigations which such a tendency had encouraged were not upon meritorious grounds. The testimony of the witness Murphy, a bystander upon the occasion, as to the ticket agent’s conversation with him, I think was-admissible as occurring simultaneously and as illustrating somewhat the transaction, but, even if questionable, the defendant appears to have objected to the testimony after it was in, and obtained no ruling by motion to strike out When, subsequently, upon it appearing to the court that the plaintiff did not hear the conversation, an objection to the testimony continuing was- con?sidered proper by the judge, and was at once sustained.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Earl, Ch. J.

license: Public Domain

text:
    Jean Albert Tauziede et al., App’lts, v. Francois Henry Jumel et al., Resp’ts.

      (Court of Appeals,

      Filed May 3, 1892.)

    Bes ad judicata—Purchaser pendente lite.
    This action was brought for the purpose of fixing the rights of the parties in respect to certain property held in trust by defendant E. and for a sale of the same and a division of the proceeds among the parties. One Chester had previously brought an action against Tauziede and the other defendants for the same relief, in which, the parties being the same as this, except the plaintiff Holt, an interlocutory judgment was entered directing the sale of the real estate, which was made for $340,000, and on the final judgment it was held that the interests of the'parties should be computed on that basis. Held, that the decision made in that action as to the "basis or computation should control the decision of this as to Holt, one of the assignees, though not a party to the former action.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for defendant entered upon decision after trial at special term.

      John J. Machlin, for app’lts; Edward Winslow Paige, foj? resp’ts.

       Affirming 39 St. Rep., 336.

   Earl, Ch. J.

In the action brought by Chester against Francois Henry Jumel and others, 125 N. Y., 237; 35 St. Rep., 4, one of the principal questions was whether the percentages and interests of De Chambrun and these respondents claiming under-him should be computed on the basis $152,525.43, or of $340,000, and it was held that they were to be computed upon the latter-sum. That action was commenced before this, and all the parties to this action were parties to -that except the plaintiff Holt. Subsequently to the commencement of that action Holt took conveyances of interests in the property in controversy from the plaintiff Tauziede and the defendant Tauziede, and thereafter he commenced this action, wherein he prayed judgment that the defendant Elliott be directed to sell the real estate held by him in trust and that the proceeds of the sale be divided among the parties to the action according to their respective interests. In that action there was an interlocutory judgment directing a sale of the real estate, and in pursuance of that judgment he sold the real estate for $340,000. • Upon the final trial of the action, it was held, following the decision in the Chester case, that the interests of these respondents should be computed upon the basis of $340,000. Upon this appeal the sole complaint of the plaintiffs is that the computation of the interests were made upon an erroneous basis, and .that it should have been made upon the basis of $152,525.43. As it does not appear that the complaint in the Chester action had been filed at the time of the conveyances to-Holt the lis pendens in that action was inoperative as notice to him of the pendency of that action, and therefore the judgment in that action does not estop and bind him as if he were a party thereto. But the judgment in that action binds all the persons who were parties thereto including the plaintiff Tauziede.

We are also of the opinion that the' decision made in that action should as authority control the decision of this as to Holt That decision upon the question referred to was based upon the written agreements between the parties and their relations to each other and to the property, and taking all those matters into consideration, the court in that action reached the conclusion that the sum of $340,000 was to be taken as the basis of the computation ■of the interests of the parties. Here the same undisputed facts were before the court in this action, and it cannot be said now that there was error in reaching the same conclusion. It is not of much importance what the precise allegations in the pleadings in those actions were, or what particular name was given to the interests of these parties in the real estate and the proceeds thereof to be divided. The undisputed facts are before the court, and upon them in this, as in the prior action, the rights of the parties must be determined. We cannot yield to the contention of the plaintiffs in this action without overruling our prior decision upon substantially the same facts, and we are not disposed to do that, and see no reason to do it.

The judgment should be affirmed, with costs.

All concur.


author: Andrews, J.

text:
    Patrick Cudahy et al., App’lts, v. Clark D. Rhinehart, Sheriff, Resp’t.

      (Court of Appeals,

      Filed May 3, 1892.)

    1. Appeal—Revebsal.
    Where the reversal oí a judgment is on questions of law only, it is incumbent on the respondent in order to sustain the order to point out some ruling and exception taken on the trial which was erroneous, and where the findings of the trial court justified the judgment, this court cannot go outside of such findings in search of other facts which, if they had been found, would have required a different result, especially where none of the facts upon which the general term proceeded were uncontroverted.
    3. Attachment—Refusal to indemnify sheriff.
    Where there are several attaching ■ creditors of the same property, the title to which is in dispute, and on demand some give indemnity to the sheriff and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, though their attachment may he prior to that of those who give indemnity.
    Appeal from judgment of the supreme court, general term, second department, reversing judgment in favor of plaintiff rendered upon a trial by the court without a jury.

      JohnJ. Maeklin, for app’lts ; Charles Putzel, for resp’t.

       Reversing 39 St. Rep., 860.

   Andrews, J.

The order of the general term is general, and as it does not state that the reversal was upon the facts, the only question we can consider is whether upon any question of law presented by any exception the reversal was justified.

It appears from the opinion that the general term proceeded upon three grounds: (1) that title to the attached property was not shown to have been in Bani & Turner, the defendants in the attachment; (2) that the sheriff demanded of the plaintiffs a bond of indemnity against the seizure of the property, which was refused, and (3) that the bond given by the plaintiffs was only intended to indemnify the defendant against the seizure of certain property not found.

The difficulty in the way of maintaining the reversal, or of examining here the questions upon which the reversal proceeded lies-in the circumstance that the facts upon which these questions-depend were not found, nor was any request made to find them, and there is no exception to any ruling upon either of the questions upon which the reversal was founded. The general term could reverse on the facts in the absence of any exception Roberts v. Tobias, 120 N. Y., 1; 30 St. Rep., 189. If the order of reversal had stated that the reversal was on the facts, it would then become the duty of the court to ascertain from the record whether there was any evidence to sustain the conclusion of the general term.

But as the record stands, importing conclusively for the purpose of review here that the reversal was on questions of law only, it is incumbent on the respondent in order to sustain the order to-point out some ruling and exception taken on the trial which was erroneous. No such ruling or exception appears. Upon the findings of the trial court, which do not touch the questions raised by the general term, the judgment awarding damages to the plaintiffs was justified, and we cannot go outside of such findings in search of other facts, which if they had been found would have required a different result, especially as none of the facts upon which the general term proceeded can be said to have been uncontroverted.

No other course is open to us, therefore, except to reverse the order of reversal.

But the plaintiffs claim that a larger judgment should have been awarded them than was given by the trial judge, and that this court should correct the error in that respect But in this contention the plaintiffs encounter the difficulty that the general term had power to reverse or affirm on the facts, and it reversed the order on the defendant’s appeal and held that the plaintiffs ought not to have recovered - anything, thereby practically affirming the-finding of the trial judge so far as it excluded a recovery beyond the $550, and reversing his finding as to that sum. There was evidence tending to show that the plaintiffs had refused to indemnify the sheriff for the seizure of the property under their attachment, and that the bond subsequently given by them was given-for a specific and different purpose, and that the plaintiffs accompanied its delivery with written directions supplementing the previous understanding that the bond was not to be treated as having any relation to the property previously seized under the several-attachments.

We think it is a sound principle that where there- are several' attaching creditors of the same property, the title to which is in dispute, and on demand some give indemnity to the- sheriff and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, though their attachment may be prior to that of those who give indemnity. The sheriff • is ibound to act with openness and good faith, and must fully apprise the parties of the facts of the situation, and where this is done and any creditor refuses to give indemnity, it would be very inequitable to permit him to stand by and leave subsequent attaching creditors to take the responsibility and tight the battle, and in case they are successful take the fruits of the victory. The principle stated was adopted by the court below, and is supported by authority. Smith v. Osgood, 46 N. H., 178; see Drake on .Attachments, § 189.

The general term had power to affirm on the facts the judgment denying the plaintiffs’ claim for damages beyond the sum recovered, and this is substantially the effect .of the order of reversal. This is an answer to the claim now made that the court .should in disposing of the appeal go beyond a simple reversal of the order of the general term. The statute does not preclude the •court from presuming that an affirmance by the general term was upon the facts. The presumption that the court below proceeded ■on questions of law applies to appeals from reversals only, Code Civ. Pro., § 1338, and here, as we have said, the order of the general term, though a reversal in form, was an affirmance of the trial court upon the claim to recover a sum beyond the amount •of the original judgment. The result is that the plaintiffs are •only entitled to have the original judgment restored.

Order reversed and judgment of the special term affirmed, with •costs.

All concur.


text:
    The A. Hall Terra Cotta Co., Resp’t, v. Andrew T. Doyle, App’lt.

      (Court of Appeals,

      Filed May 3, 1892.)

    •Appeal—Coubt op appeals—Amount involved less than $500.
    Plaintiff in an action to foreclose a mechanic’s lien alleged the making of a contract to furnish materials to the amount of $1,250, and that there was a balance due of $652. The answer alleged that the agreement was to furnish $1,000 worth of materials. The referee found in favor of plaintiff, and gave judgment for $652. Held, that the pleadings and proceedings and the evidence disclosed the fact that the amount in controversy was for less than $500, and so the case was not appealable to this court.
    Appeal from judgment of the New York common pleas, general -term, affirming judgment in favor of plaintiff entered on re";port of referee.

      Charles J. Hardy, for app’lt; McCall & Arnold, for resp’t

       See 38 St. Rep., 1023.

   Gray, J.

This appeal must be dismissed .inasmuch as the ■amount in controversy is less than $500. The complaint was, in form, for the foreclosure of a mechanic’s lien, filed against the defendant’s property. The plaintiff alleged the making of a contract, under which he was to furnish to the defendant certain terra -cotta building materials of the value of $1,250; and that there was a balance due to him, under the contract, of $652. The answer put in issue the contract price; alleging that the plaintiff .agreed to furnish the materials for the sum of $1,000, and that de.fendant agreed to pay “ something extra ” if plaintiff proceeded promptly, which he failed to do. The referee found the fact as to contract price in favor of the plaintiff, and directed judgment in accordance with" his legal conclusion that the plaintiff should recover of the defendant $652.16. The defendant specifically requested the referee to find, as a legal conclusion, that the plaintiff was entitled to judgment against him for only the sum of $402.

The controversy upon the trial turned upon conflicting evidence adduced by the parties upon the subject of what was the agreed price at which the materials were to be furnished. The pleadings and proceedings, and the evidence, when referred to, as we have the right to do, disclose to us clearly that the amount in controversy was for less than $500. Knapp v. Deyo, 108 N. Y., 518; 13 St. Rep., 823. Nor was the action one which was appealable as affecting the title to real property, or an interest therein. Norris v. Nesbit, 125 N. Y., 650; 33 St. Rep., 603.

The question raised and discussed by the appellant upon this appeal is that the court was without jurisdiction to determine the action, inasmuch as the lien had been discharged by a bond, furnished pursuant to the provisions of the lien act, (§ 24, chap. 342, Laws of 1885), and hence no action in foreclosure could be maintained. But this does not make the case appealable by drawing into the controversy the whole of the judgment rendered.

It is true that the complaint prays judgment as for a foreclosure and sale; but with its other allegations of indebtedness and of lien proceedings, it had also alleged the giving of the bond discharging the lien of record. It was quite competent, therefore, for the court to direct any judgment consistent with the case made by the complaint and embraced within the issue. Code, § 1207; Benedict v. Benedict, 85 N. Y., 625. That was done in this case. 'The judgment directed and entered here was only against the defendant personally. It did not adjudge a foreclosure and sale of the defendant’s interest in the premises described in the complaint; but, on the contrary, merely adjudged that “plaintiff had a good ■and valid lien * * * and, but for the filing of the bond ■*- * * would be entitled to a judgment foreclosing, etc.”

As this case is not appealable to this court, in any aspect we may look at it to discover the amount involved, I think the appeal should be dismissed. This result is reached by us with less reluctance, inasmuch as we consider the appeal to be without merit

Appeal dismissed, with costs.

All concur.


text:
    Martin Barney, Resp’t, v. Louis E. Fuller et al., App’lts.

      (Court of Appeals,

      Filed May 3, 1892.)

    Attorneys—Monbyshad and received—Evidence.
    Plaintiff alleged in his complaint that he delivered $930 to defendants, a firm of attorneys, which with $1,200 collected by them they converted to their own use. Defendants answered that they acted as attorneys for plaintiff under an agreement by which they were to receive $3,000 for their services, of which they received the two sums named on account. On the trial plaintiff testified that they were to have ten dollars a day and. expenses, which was disputed by defendants, and plaintiff was allowed,, over defendants’ objection, to introduce evidence of the value of defendants’ services. Held, no error,
    Appeal from judgment of the supreme court, general term,, fourth department, affirming judgment in favor of plaintiff entered on verdict and order denying motion for new trial on the minutes.

      T. K. Fuller, for app’lts; Henry Purcell, for resp’t.

       Affirming 39 St. Rep., 926.

   Earl, Ch. J.

The complaint in this action alleged that the-defendants were a firm of attorneys and counselors at law, doing business at Syracuse, New York; that in November, 1887, the plaintiff delivered to one of the defendants the sum of $980, to-be retained by his firm until called for by the plaintiff, and that the defendants collected and received for him the further sum of $1,200,. under a power of attorney from him; that they refused to pay over the sums thus received, or any part thereof, to him,, and unjustly, wrongfully and unlawfully converted the same to their own use; that before the commencement of the action 'he duly demanded the sums of money mentioned of the defendants, amounting to $2,130, and he prayed judgment against the defendants for that sum, besides interest. The substance of the answer of the defendants is that they acted as attorneys for the plaintiff under an agreement by which they were to receive $3,000 for their services, and that they received the two sums mentioned in the complaint to apply as payment under that agreement.

Upon the trial of the action it was undisputed that the defendants had acted as attorneys for the plaintiff, and had rendered services for him as such. The plaintiff gave evidence tending to show that the defendants rendered the services for him under a special agreement by which they were to have ten dollars per day for their services while actually engaged in his service, besides their expenses when absent from home. The defendants, as witnesses on their own behalf, denied that agreement, and gave evidence tending to show that they rendered the services under a special agreement by which the plaintiff was to pay them the gross sum of $3,000, and that he was to pay them to apply upon that sum while they were engaged in rendering services the sum of ten dollars per day, besides their expenses. Thus each party disputed the agreement alleged by the other.

There was no dispute upon the trial that the defendants were entitled to retain out of the moneys which came to their hands whatever compensation was dxle to them for their services, and the entire controversy between the parties was as to the amount of that compensation.

' The defendants could not be compelled to pay over to the plaintiff these moneys until they had been paid for their services; and hence it was competent and material upon the trial to determine the agreement between the parties as to the compensation, and the amount thereof

Upon the trial the plaintiff offered to show by competent evidence the value of the defendants’ services. The defendants objected to this evidence, but the trial judge overruled the objection, and received the evidence; and in this it is. strenuously contended by them that the trial judge committed error. .We think the evidence was competent upon two grounds: (1.) As the defendants denied under oath the special agreement alleged by the •plaintiff, and he denied under oath the special agreement alleged by them, the jury, for the purpose of settling the conflict between the parties, could find that their minds did not meet upon any special agreement. Assuming that the parties on both sides intended to testify truthfully, it must be assumed that they were mistaken, and that the special agreement which each party alleged was not in fact assented to by the other, and thus was not in fact made. If no special agreement was in fact made, then .the defendants were entitled to retain for their services the fair value of such services; and hence it was competent for either party to give evidence of that value. (2.) It has been held in several cases that where one party to an action to recover the value of services or- of property sets up a special agreement as to the price or value, which is controverted by the other party, who also alleges a special agreement, that it is proper for either party to prove the value of the services or of the property, as bearing upon the issue between them, and the probability that the one or the other agreement was made. Cornell v. Markham, 19 Hun, 275; Cornish v. Graff, 36 id., 160; Knallakan v. Beck, 47 id., 117; 13 St. Rep., 235; Sturgis v. Hendricks, 51 N. Y., 635; Kavanagh v. Wilson, 70 id., 177.

Where a plaintiff in an action to recover for services rendered claims that the defendant made a special agreement to pay him a certain sum for such services, the defendant denying such agreement not only has the right to give evidence directly disproving it and contradicting the plaintiff’s evidence in reference thereto, but he has the right also to give evidence showing that it is extremely improbable that such a contract was made; and if he can give evidence showing that the price claimed by the plaintiff is vastly disproportionate to the value of the services, it has a tendency to impair the force of the plaintiff’s evidence and the weight which it would otherwise receive; and we can see no reason to doubt that such evidence is competent. The defendants seem to rely for the exclusion of such evidence mainly upon the case of Marsh v. Holbrook, 3 Abb. Ct. App., Dec. 176, where the plaintiff ■claimed a special agreement whereby the defendants agreed to pay him for legal services the sum of $5,000, “if he got the case,” Upon the trial the defendants did not dispute the special agreement, and in fact admitted it. Under such circumstances the court did not err in excluding evidence as to the value of the services. If the defendants in that case had disputed the special agreement, and then as bearing upon the existence of such an agreement had offered to show the value of the services, a different question would have been presented for the consideration of the court.

We have carefully examined and considered the other exceptions to which our attention has been called, and do not think that they point out any error or need any particular attention-now.

The judgment should be affirmed, with costs.

All concur, except Andrews, J., taking no part.


author: Peckham, J.

text:
    The People, Resp’ts, v. Aaron A. DeGrauw et al., App’lts.

      (Court of Appeals,

      Filed May 3, 1892.)

    Plankroad companies—Tubnfikes.
    Plaintiffs’ complaint set forth the incorporation of the H. & J. Plank-road Co. in 1853, for the term of thirty years, on the road of the J. & H. Turnpike Co.; that the charter lapsed in 1883 and had never been renewed; that defendants without being incorporated act as a corporation within the county of Queens under the name of the H. & J. Plankroad Co., by maintaining toll gates and levying toll, and asked the court to restrain defendants from so acting. Defendants answered, denying that they were illegally exercising the privileges of. the plankroad company, and alleged that they were acting under the franchises of the H. & J. Turnpike Co., organized in 1813, and still subsisting. The case was tried on an agreed statement that the stockholders in the turnpike company had selected certain of the plankroad directors and made them officers in the turnpike company, and that they had operated the road. The special term on these findings dismissed the complaint. Held, no error, as the facts agreed upon were not at all what the complaint alleged, and from them it appeared that the defendants were not acting in the capacity of a plankroad corporation or assuming the rights of any such corporation.
    Appeal from a judgment of the supreme court, general term, second department, reversing a judgment dismissing complaint.

      A. N. Weller, for app’lts; Francis M. Van Vechien, for resp’ts.

       Reversing 42 St. Rep., 797.

   Peckham, J.

This action is brought against the defendants for the purpose of obtaining a perpetual injunction against them, enjoining them from acting as a plankroad corporation. The title of the action, as contained in the summons and complaint, after naming personally the defendants, contains this language: “ Doing business under the name and style of the Hempstead <& Jamaica Plankroad Company, and John Doe and Bichard Boe,, whose names are unknown to plaintiff, intending thereby to designate and describe all persons acting as or claiming to be stockholders in said Hempstead Plankroad Company.”

The complaint set forth the incorporation of the Hempstead & Jamaica Plankroad Company, in March, 1852, for the term of thirty years, for the purpose of operating a plank road from the village of Hempstead, in Queens county, to the village of Jamaica, in the same county, and on the road of the Jamaica & Hempstead Turnpike Company. It alleged the expiration of the charter in March, 1882, and that it had never been renewed, and that by operation of the law it had ceased to exist at the time last mentioned.

It further alleged that the defendants without being incorporated act as a corporation within the county of Queens, under the name and style of 'the Hempstead & Jamaica Plank Hoad Company, and exercise within that county corporate rights, privileges and franchises not granted to them by the. law of the state, by exercising jurisdiction as a plank road company over the public highway, and by maintaining toll gates on it, and by levying and collecting tolls from persons using it. Upon these allegations the j udgment of the court was asked to restrain defendants from acting as such plank road corporation.

The cause of action is thus plainly seen to rest in the fact that these defendants without being incorporated act as a corporation under the name and style of the plank road company above named.

Thus acting as such named corporation and without being incorporated, the complaint alleges the defendants have performed various illegal acts, such as erecting toll houses on a highway and collecting tolls. These acts are not set out as separate and distinct Causes of action, but are clearly stated as corporate acts performed by defendants under their user of the name of the old plank road corporation whose charter had expired by limitation, but whose rights and privileges the defendants still assumed to exercise.

The defendants answered by denying that they were illegally exercising the privileges or franchises of the plank road company, and alleged that they were acting as, and using the rights, privileges and franchises of the Hempstead Turnpike Company, which .was a corporation duly organized in 1812, and still subsisting.

The case was tried upon an agreed statement of the facts, from which the court made its findings, and from the latter it appeared that shortly before the commencement of this action a meeting of the stockholders of the plank road company and of the turnpike company was held, and after the transaction of other business (fully set forth in the findings of facts), the persons claiming to be stockholders in the turnpike company elected certain of the defendants directors in such company for one year, and until their successors were appointed, and the directors then elected these defendants, who have appeared in this action, officers of the turnpike company, and since that time the road has been run and operated under the directions of this turnpike company as a toll road.

Upon these findings the special term dismissed the complaint, with costs.

Upon appeal the general term reversed the judgment entered upon the decision of the court below and granted a new trial From that order the defendants have appealed here.

The general term granted a new trial on the ground that the reorganization under the turnpike charter was illegal.

We think the special term judgment was right.

The defendants were proceeded against expressly and solely upon the ground of their assumption of the corporate name and privileges of the plank road corporation, which, as the plaintiff alleged, was a corporation that had expired by its own limitation and was not in existence. The facts were agreed upon, and from them it appears that in truth the defendants were not acting in any such capacity or assuming the rights of any such corporation. On the contrary they were assuming to perform the acts which, the complaint alleged were illegal, under and by virtue of the. powers of another corporation which was once legally incorporated, and which they claimed was still in existence. That corporation was not limited in its existence by any definite time, and was not shown to have been dissolved, and it was no party to this, action. The cause of action set up in the complaint was not proved, and hence it was proper to give judgment for the defendants, without considering the question whether the actions of defendants were legal or illegal by reason of the legality or illegality of their organization under the charter of the turnpike company. The defendants were not proceeded against on any such ground, and the fate of this action should not depend upon the solution .of the problem as to the existence of the turnpike company and its regular organization in the absence of allegations regarding it in, the complaint, and in the absence of the turnpike corporation as a. party defendant.

We intimate no opinion on the question of the validity of the: proceedings of defendants regarding the turnpike company. It is not before us, and was not properly before the general term.

We find nothing in the case which would naturally incline a. court to make any special effort to uphold a judgment in the plaintiffs’ favor. They allege the death of the plank road corporation by the expiration of the time provided in its articles of association, and they claim in substance that the real estate upon which the turnpike and subsequently the plank road were built, reverts to the original owners, and that the road has become a. public highway. The stockholders in the plank road and turnpike corporations will thus lose their property, which but for this-claimed forfeiture would still exist, and probably be of some value. The failure to obtain an extension of the corporate life in. some form, and by some proper means, was a pure inadvertence. The stockholders endeavored in good faith to take the steps necessary to accomplish that end, and failed, without intentional or culpable neglect. To sustain this action would appear somewhat like an effort to enforce the consequences of a forfeiture which arose from no willful omission to perform the necessary acts to prevent it, and where equitable considerations would seem to oppose its enforcement. These considerations, while unavailing in case a cause of action in accordance with the complaint had. been properly proved, are not without weight in construing the complaint, and the cause of action therein stated. Whether any wise public policy demands the commencement of another action-is a question the solution of which is confided to the attorney-general.

Upon this record the order of the general term is erroneous, and it is therefore reversed, and the judgment of the special term affirmed, with costs.

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


author: O’Brien, J.

text:
    The People, Resp’ts, v. The Fitchburg Railroad Company, App'lt.

      (Court of Appeals,

      Filed May 3, 1892.)

    1, Costs—Extra allowance—Submission op controversy.
    An extra allowance cannot be granted in a controversy submitted to the court by agreement and which first appears in the form of an action upon the calendar of the general term.
    3. Same.
    The provision as to granting an extra allowance for a difficult and extraordinary case was intended to apply only to actions commenced in the ordinary way and in which an answer or demurrer was interposed.
    Appeal from judgment of the supreme court, general term, third department, denying motion for extra allowance.

      O. A. Torrey and T F. Hamilton, for app’lt; 8 W. Rosendale, atty.-genl., for resp’ts.

       Affirming 44 St. Rep., 229.

   O’Brien, J.

The question involved in this appeal is the right of the defendant to an additional allowance of costs under the provisions of § 3258 of the Code of Civil Procedure. It is claimed that the case was a difficult and extraordinary one within the meaning of that section. The state claimed that the defendant was bound to pay to the comptroller over $1,800 in taxes under the provisions of chapter 143 of the Laws of 1886, in consequence of its consolidation with other railroad companies organized under the laws of other states. The defendant denied its liability. A written submission of the controversy was made between the defendant and the attorney-general under the provisions of § 1279 of the Code. After stating the facts each party demanded judgment; the state that it recover the taxes, and the defendant that it be adjudged that it was not liable to pay the same, “ with costs of the action."

The general term upon the submitted case directed judgment for the plaintiffs, with costs. Upon appeal to this court the judgment was reversed and it was held that the defendant was not liable for the payment of the taxes demanded. The case having been remitted to the supreme court, the attorney for the defendant moved upon affidavits and the record for an additional allowance, which motion was denied, as the order states, “For the reason that, notwithstanding the fact that the court would ordinarily have the power to grant an additional allowance, the parties hereto have stipulated as to costs in the submission presented to the court, the court is, for that reason, without power to grant an additional allowance of costs.” By § 1281, costs in such cases are always in the discretion of the court but no costs can be taxed for any proceeding before notice of trial. If the provisions of the Code, authorizing the court to grant an extra allowance in certain cases,, have any application to controversies submitted by agreement of the parties, we do not think that the power of tlie court in .that-respect would be limited or affected by the terms of the submission. The fact that both parties, when stating the relief to-which they deemed themselves entitled, claimed costs also, did not. necessarily entitle the successful party to costs in the judgment. ¡Nor would an omission to claim costs as part of the relief necessarily deprive either party of them in case of success, if the court in the judgment directed their recovery. The whole matter of costs "still remained in the discretion of the court, and as an additional allowance is one of the incidents that may follow a. judgment for costs, that also remained open for the determination of the court, in the exercise of its discretion, and as justice might require." But we do not think that a controversy submitted to-the court by agreement and which first appears in the form of an action upon the calendar of the general term is a case in which an extra allowance may be granted. That provision embraces “ a. difficult and extraordinary case, where a defense has been interposed, in any action ” and was, we think, intended to apply only to actions commenced in the ordinary way and in which an answer or demurrer was interposed.

The extraordinary expenses of a litigation, which were intended to be covered by this provision of the Code, seldom, if ever, attach to the determination of a question submitted to the general term by agreement of the parties. The labor and expense involved in settling the facts or the law in an action commenced and prosecuted in the ordinary way are rarely, if ever, incurred or made necessary in a case where the parties agree upon the facts and submit them to the general term for the purpose of ascertaining in a friendly way what their legal rights are. The expense which usually attends the determination of a controversy at the-circuit or special term is saved. The power of the court to award to the successful party even general costs is limited to costs after notice of trial ana the right to any costs whatever, whether the-action is at law or in equity, is subject to the discretion of the-court. It may also be observed that in actions commenced and prosecuted in the ordinary way, where an additional allowance has been or may be properly granted, the expense and labor involved in an appeal to the general term, or even to this court,, is not considered in the process of determining whether the case is properly within the section at all, and if so, the amount that, should be allowed as sufficient indemnity to the party succeeding. The legislature in enacting the provision had reference to proceedings in an action in those courts which ordinarily exercise original jurisdiction and not to proceedings in an appellate court, and such seems to be the view of this court in Wolfe v. Van Nostrand, 2 N. Y., 570. It is quite true that the general term may very properly be said to be a court of original jurisdiction when deciding a controversy submitted to it upon an agreed case, but, so far as concerns the present question, the judgment may be treated as the determination of an appeal, and it seems to us that. such a case is not within the letter or the spirit of the statute. On this ground, therefore, the order appealed from should be-affirmed, with costs.

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


text:
    Andrew J. Dexter, Resp’t, v. William Ivins et al., App’lts.

      (Court of Appeals,

      Filed May 3, 1892.)

    Motion for reargument

      James Q. Burnett and Thos. F. Byrne, for app’lts; James & Thos. JB. Troy, for resp’t.

       See 44 St. Rep., 244.

   O’Brien, J.

The learned counsel for the defendants is mistaken in supposing that the exceptions which are made the basis for this motion for reargument were overlooked in the decision of the case. On the contrary, they were fully and carefully considered, though not referred to in the opinion. The counsel requested the court to charge in substance that the evidence established a discharge as matter of law. This was properly refused,, as the question was for the jury upon the letters that passed between the parties and all the circumstances of the case. If the defendants intended to discharge the plaintiff, they could have-said so in words not liable to be misunderstood. Upon the evidence the court could not have held, as matter of law, that the-plaintiff was discharged, and understood that he was, or that the plaintiff intended to terminate the contract, while as a' matter of fact such a conclusion might have been reached by the jury. The remark which the learned judge made after refusing the request was undoubtedly incorrect. But upon the decision of the appeal we thought, as we still think, that it did not prejudice the defendants. When the whole charge is read, it is quite apparent that the only questions which the court submitted to the jury were whether the plaintiff had been discharged, and if not, then whether he held himself in .readiness at all times to perform the contract These issues were properly in the case upon the pleadings and evidence.

The motion should be denied.

All concur.


author: Per Curiam.

text:
    John W. Young, App’lt, v. Sophia Young, Impl’d, Resp’t.

      (Court of Appeals,

      Filed May 6, 1892.)

    Appeal—Case—Exceptions.
    Exceptions taken to refusals of the court to find on request, if properly-taken under § 994 of the Code, are properly inserted in the case. The decision of the general term, in this case, that the exceptions were not duly and properly taken, is not supported by the facts shown.
    Appeal from order of the New York common pleas, general term, affirming order denying motion to resettle case.

      F. F. Bullard, for app’lt; Robert F. Deyo, for resp’t

         Reversing 44 St. Rep., 652.

   Per Curiam.

The plaintiff’s exceptions, if duly taken under •§ 994 of the Code, were properly inserted in the case. Code, § 997; French v. Powers, 80 N. Y., 146. It does not appear that they were not properly taken in the manner and within the time prescribed in § 994. They were directed to be stricken out of the case on the settlement, on the ground that exceptions so taken are not to be inserted in the case, but are brought up in connection with the judgment-roll. In this case we think the judge erred. Section 997 seems to be decisive that such exceptions may be inserted in the case. The general term affirmed the order on the ground that only exceptions properly taken could be incorporated into the case, and that the exceptions inserted by the plaintiff had not been taken in time. This does not appear. We think there is no doubt that the plaintiff, in order to make his exceptions valid, must have conformed to the provisions of § 994, and that if the exceptions were not taken in the manner there provided they are not valid. If the plaintiff, by mistake or inadvertence, has not conformed his practice to that section, his exceptions will fail unless he is relieved under § 724, or in some other way.

As it stands, the plaintiff is entitled to a reversal of the order, ■since the ground upon which the general term proceeded is not ■supported by any facts appearing in the papers.

Orders of special and general terms reversed and motion to resettle the case granted, with costs.

All concur.


text:
    The People, App’lts, v. John H. Phelps, Resp’t.

      (Court of Appeals,

      Filed May 6, 1892.)

    Abortion—What constitutes offense of—Penon Code, § 294.
    Mere suggestion or advice to go to a physician and get some medicine to procure an abortion, without evidence of its being acted upon, does not constitute the crime of abortion under § 294 of the Penal Code.
    Appeal from judgment of the supreme court, general term, third department, reversing judgment and conviction of the crime of abortion.

      Charles A. Kellogg, for app’lts; V. P. Abbott, for resp’t

       Affirming 39 St. Rep., 598.

   Gray, J.

The defendant was accused in the indictment of the crime of abortion, alleged to have been committed by advising Sarah Nicholson to take a medicine, drug or substance and to use means to procure such miscarriage. He was thereupon tried, convicted and sentenced. The general term reversed the judgment of conviction, on the ground, in substance, that under § 294 of the Penal Code, the provisions of which were deemed to have been violated by the defendant, the crime of abortion is not made out by proof of mere advice to take medicine. W e Agree with them m their interpretation of this section. That section provides that: “A person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, * * * advises or causes a woman to take any medicine, drug or substance * * * is. guilty of abortion, and is punishable,” etc. This section is found in the chapter on “Abortion," and immediately precedes one which subjects the woman who takes the medicine, drug or substance with intent to produce miscarriage, to punishment by imprisonment In this case, the evidence showed that the defendant’s advice to the woman was given when she was pregnant, and was, in substance, that she should go to a certain physician and get some medicine to produce an abortion, and that she could produce the abortion if used at the right time. This advice was not acted upon, and it did not appear that she ever took anything at all, in the way of medicine or drug. It would be a very-strict and literal, if not an extraordinary, construction of this section to hold that proof of the mere suggestion, or advice, without evidence of its being acted upon, could convict a man.

The courts are enjoined to construe the provisions of the Penal Code “ according to the fair import of their terms, to promote justice and effect the objects of the law ” (§ 11), and such a conviction would seem to be very opposed to such a command. The object of our penal law is to define the nature of crimes and to prescribe-their appropriate punishments. While it would be perfectly competent for the legislature to impose a punishment for the mere giving of advice to a woman to take a medicine tó procure an abortion, irrespective of its being acted upon, I do not think that-we are warranted in saying that that was their intention here. For a man to be “ guilty of abortion,” within the provisions of this chapter, who has advised the woman to take a drug, it is-necessarily and logically to be implied that his advice should have been followed by the act. Otherwise, we should have to draw the apparently absurd conclusion that the legislature intended that abortion could be committed or caused by the act of offering advice. The chapter and its provisions, with respect to the man and the woman and to the manufacturer, giver or vendor of medicines, concern facts and the commission of criminal acts. Assuming that the defendant gave the advice of which accused, it does not appear that the woman took it and, therefore, the fact was wanting to constitute an element of the crime charged. He was accused of the crime of abortion; not of an attempt to commit the crime.

The order of the general term should be affirmed.

All concur.


author: Follett, Ch. J.

text:
    Ezra B. Hayden, Resp’t, v. The State, App’lt.

      (Court of Appeals, Second Division,

      Filed May 6, 1892.)

    1. Cauals—Appbopbiation of wateb.
    On May 14,1866, the state temporarily appropriated the water of Owasco Lake and Oriskany Creek hy aresolution to that effect. June 19,1867, the state permanently appropriated the water power on Owasco outlet. Plaintiffs, in November, 1867, filed their claim for the water so taken, and March 4, 1870, resolutions were adopted by the canal board defining the quantity of water intended to be permanently taken by the resolution of June 19, 1867, to be 3,600 cubic feet per minute and not of the whole stream, and an award was made for the water taken. February 15, 1879, the state appropriated 368-1000 of an acre and all the water in the raceway crossing it, and this claim for damages was brought, Held, that the state had not, prior to February 15, 1879, taken all the water from the stream, and an allowance of $1,000 for the amount not previously appropriated was right.
    3. Same.
    To make a legal and permanent appropriation of land or water for the use of a canal the quantity must be definitely ascertained and described so that the owner may know how much he has lost and what he is entitled to be compensated for.
    Appeal from an award and order of the court of claims which awarded he claimant for land taken................ $21 49 For water..................................... 1,000 00
    Total................................. $1,021 49
    The state conceded its liability for the land taken.

      B. V. Rowland, for resp’t; S. W. Rósendale, att’y-gen., for app’lt.
   Follett, Ch. J.

May 14, 1866, the state temporarily appropriated the water of Owasco and Oriskany creek, under this resolution:

Resolved, That the canal commissioners in charge of the middle and eastern divisions would not only be justified, but, in view of the past and present scarcity of water on the Port Byron and eastern portion of the long levels of the Brie canal, it is their duty to make a temporary appropriation of the waters of the Owasco lake and the Oriskany creek, as provided by the statute.”

A claim for the damages under this appropriation was filed, but no appraisement was made and the damages were afterwards •included in the claim filed after the adoption of the resolution of June 19, 1867.

June 19, 1867, the state permanently appropriated the Port Byron water power on the Owasco outlet, pursuant to the following resolution:

Resolved,- That the map for the permanent appropriation of the Port Byron water power on the Owasco outlet for the feeder to the Brie"canal, this day submitted by the state engineer and surveyor, is hereby approved and the water and lands necessary for said feeder are herebj permanently appropriated.”

November 9, 1867, the Haydens filed their claim for compen■sation for the permanent appropriation of the waters of Owasco creek. March 4, 1870, while the foregoing claim was pending and before it was tried, resolutions were adopted by the canal board defining the quantity of water intended by the resolution of June 19, 1867, to be permanently appropriated, by which it was fixed at 3,600 cubic feet per minute, and not of the whole stream. The following is a copy of the resolutions of March 7, 1870:

Resolved. That the map for the permanent appropriation of the Port Byron water power on the Owasco outlet for a feeder to the Brie canal, this day submitted by the state engineer and surveyor, is hereby approved, and the water and lands necessary for said feeder are hereby permanently appropriated, and, whereas, doubts have arisen as to the extent of such appropriation, therefore,
Resolved. That the water and lands appropriated or intended to be appropriated by this board was and is the water known as the Beach Mill water power, then claimed by the Bank of Auburn, being equal to power for ten run of stone and machinery, ■or equal to a flow of 3,600 cubic feet per minute under the head •of 27 feet with the right and power to keep in repair the 1 Parks dam,’ so called, at the head of the raceway, also the raceway known as the Beach raceway, with the rights and privileges that the said Bank of Auburn had and acquired under said Beach, also the land necessary and as described or delineated on said map to convey the water to the canal from the end of said Beach raceway.”

In June and July, 1870, evidence in Hayden’s case was taken "before the appraisers. March 11, 1871, the appraisers awarded him, as stated by the findings $6,301.23, but as stated by the evidence he was awarded $6,651.23.

November 17, 1871, the canal board increased the award to $8,183.74, which was paid. February 15, 1879, the state appropriated 368-1000 of an acre and all the water in the raceway crossing it Under which appropriation this claim for damages was filed June 23, 1879. January 4, 1882, the canal appraisers awarded $21.49 for the land taken, but nothing for the water. The claimant appealed and his appeal was heard before the board of claims, where, January 14, 1886, the award was reversed, and a rehearing ordered. On the retrial the award now appealed from was made. The only question in this case is whether, under the permanent appropriation of June 19, 1867, the state acquired all” of the water of Owasco creek. If it did, the allowance of $1,000 is wrong; if it did not, it is right.

The attorney-general contends that the state permanently appropriated all of the water of the Owasco outlet by the resolution of June 19, 1867, and that the canal board had no power by the subsequent resolutions of March 4, 1870, to limit the quantity of water taken to “ 3,600 cubic feet per minute under the head of '27 feet,” though the resolution was passed before the damages were assessed. To make a legal and permanent appropriation of land or water for the use of a canal, the quantity must be definitely ascertained and described so that the owner may know how much he has lost and what he is entitled to be compensated for. If the water to be appropriated is described as all in a certain lake or all flowing in a particular stream, such would undoubtedly be a sufficiently definite description. But in this case the resolution did not state that all of the water of the outlet, or that any particular quantity or part of it was appropriated, and the description was too indefinite to effect a legal appropriation. The original attempt to appropriate not being effective, the officers of the state had power by subsequent action to make a definite and permanent-appropriation of a given quantity of water. Under this limited appropriation the claimant’s damages were ascertained and paid, and it would be inequitable to allow the state to successfully assert that the award was for all of the water instead of for 3,600 cubic feet per minute. The report of the canal appraisers (Senate Doc. No. 56) made in 1869 was made before the claim filed November 9, 1867, was tried, the claimant was not a party to it and it "is not binding on him.

The board of claims well decided on sufficient legal evidence-that the state had not, prior to the appropriation of February 15,. 1879, taken all of the water from the stream.

The order and award should be affirmed, with costs.

All concur.


text:
    The People ex rel. William A. Stephens, App’lt, v. The Greenwood Lake Association, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Associations—Expulsion op member—By-laws.
    The by-laws of the defendant provide that a member may be expelled at a special meeting of the board of trustees, and that special meetings are to-be called by notice in writing to each member of the board. Relator was-expelled at a special meeting. One of the trustees did not receive written notice of this meeting, and aid not attend. Held, that the failure to notify said trustee rendered the action taken invalid, although there were enough votes to have overcome that of the absent member, and that relator was entitled to a mandamus reinstating him as a member.
    Appeal from order denying motion for mandamus..

      M. H. Cardozo, for app’lt; A. Otterbourg, for resp’t.
   Per Curiam.

The trustees of the respondent assumed to act upon certain charges made against the relator, and to expel him from the association, thus depriving him of his rights as a member of the corporation; and the relator claiming that such expulsion was not in accordance with the provisions of the by-laws, now asks to be reinstated as a member of the corporation. The relator is entitled to the relief sought, unless it appears that the bylaws were .strictly complied with. Section 3 of art. 4 of the-by-laws provides for -meetings of the trustees. They are required to hold a regular monthly meeting, and special meetings are to be called by the secretary, on the direction of .the president or vice-president, by a notice in writing to each member of the board. And no special meetings can be held at which a member can be expelled except by complying with these provisions. By § 6 of art. 6, a member may be expelled at a special meeting of the board of trustees.

It appears in the papers on which this application was made to-the court below, that one of the trustees never did receive a written notice to attend this meeting, and was not present thereat. And we think that in consequence of the failure to give a written notice to the trustee Evans, the board of trustees acquired no jurisdiction to expel the relator at that special meeting.

The claim that there were enough votes to have overcome the vote of the absent member in no way affects the question, because in order that valid action may be taken by such a board, all the members of the board must be legally summoned, although the majority may control the action of the board when legally convened ; the. argument being that the reasoning of one member of a board may influence, "and .frequently has influenced the minds of many of his associates as to the propriety of the contemplated action, and whose votes would have been the opposite of what they were had such member been present. In re E. N. Tramways, L. R., 5 Ch. Div., 963; Imperial Mercantile Cred. Ass'n v. Coleman, 6 Chy. App. Cas., 558; Paine v. Irwin, 16 Hun, 390; Duryea v. Traphagen, 84 N. Y., 652.

This court has settled that where notice is required to be given to a trustee of a meeting of a board of which he is a member, and no provision is made as to the manner of service, it must be personal as required at common law. People ex rel. Decker v. Hoboken Turtle Club, 38 St. Rep., 4, and cases there cited.

We think, therefore, that the relator was entitled to the mandamus reinstating him as a member of the corporation, and that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with costs.

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


author: Patterson, J.

text:
    The People ex rel. Robert O’Rau, App’lt, v. Charles F. MacLean et al., Com’rs, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Municipal corporations—Police—Removal.
    The removal of a policeman on the charge of being in a liquor store during his tour of patrol duty cannot be sustained where there is no evidence that he was on patrol duty at the time.
    Certiorari to review proceeding of respondents in removing relator from the police force of Hew York city,

      Louis J. Grant, for relator, app’lt; Wm. H. Clark, for resp’ts.
   Patterson, J.

The relator was dismissed from the police force of the city of Hew York upon conviction by the commissioners of the charge that on the 3d day of April, 1891, he was in a liquor store during his tour of patrol duty. This decision of the commissioners is brought before us for review on certiorari. The record certified to us contains what purports to be the whole proceedings in the inquiry before the commissioners, and from an inspection of that record it is plain that the testimony was utterly insufficient to convict the relator, in this: that there was not a word of proof to substantiate the most material part 'of the charge, viz.: that it was while on a tour of patrol duty that the relator went into the liquor store. It seems to have been assumed that it was so, but we cannot act on that assumption as there is not one word of proof concerning it, unless it may be that the roundsman followed the relator and another officer into the saloon and found them there; but that does not show that either the relator or the roundsman were on dirty and we cannot be left to a simple inference as determinate of the matter. In a case precisely like this it was held by this court on appeal. People ex rel Roe v. MacLean, 32 St. Rep., 831, that where a patrolman was accused of sitting in a restaurant during his tour of duty .it was absolutely necessary to prove that he was on a tour of duty at the time, and for want of such 'proof the decision of the commissioners directing his dismissal was reversed. This case lacks that proof as the record comes before us, and we can consider nothing but that record. There is only the charge of the police captain on the complaint of the roundsman, and of course that charge does not prove itself, although it does come up with the record. The previous career of this relator as a member of the police force may have been bad. He was not on trial for that, but for a specific offense, and whether from inadvertence in the haste with which these proceedings before the police commissioners are conducted the requisite proof was not supplied we cannot say; it is enough that the requirements of the law were not complied with and the proceedings of the commissioners must be reversed and the relator restored to duty.

O’Brien, J., concurs; Yan Brunt, P. J., concurs in result.


text:
    The Sterns Paper Co., Resp’t, v. Joseph Y. Johnson et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Attachment—Vacation.
    An attachment will not he vacated on motion where the facts are not undisputed, nor the legal conclusions certain.
    Appeal from order denying motion to vacate attachment.

      R. G. Taylor, for app’lts; G. R. Hotchkiss, for resp’t
   Per Curiam.

The ground upon which it is sought to vacate the attachment is that according to the affidavit of the defendant there is no such debt due as is claimed in the complaint. This is a question which can only be disposed of upon the trial, and cannot be considered here, as the facts are not undisputed, nor are the legal conclusions certain.

The circumstances under which an attachment will be set aside because of defects in the cause of action are stated by this court in the case of Lowenstein v. Salinger, 42 St. Rep., 414, in which it was held that ordinarily the court will not upon motion try questions regarding the cause of action which should properly be left for determination on the trial. Where, however, the facts are undisputed, and the legal conclusions certain, it would be oppressive to hold an attachment which is clearly without foundation.

The same principle is reaffirmed in the case of Brown v. Wigton, decided herewith.

The appellant has failed to bring himself within this rule.

We think, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

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


text:
    Judson G. Wells, Resp’t, v. Thomas R. Knox, Assignee, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Reference—Assignee for creditors—Accounting.
    Where the pleadings in aproceediug for an accounting by an assignee for creditors present an issue as to whether the plaiotiff is a creditor of the assignor, the order of reference should direct the referee to hear and determine the issues, and not simply to take proof of the matters set forth in the pleadings.
    Appeal from order referring it to a referee to take and state the account of the defendant as assignee.

      Benno Loewy, for app’lt; L. H. Hahlo,ior resp’t
   Per Curiam.

By the pleadings an issue is presented as to whether or not the plaintiff is a creditor of the assignor. The order does not provide for the trial of that issue. The action is for an accounting, and in disposing of the action the taking and stating of the account is necessary, and a case is thus presented which the court has the power to refer. Upon such a reference all the issues should have been referred; and as it appears from the terms of the order that the reference was “ to take proof of the matters set forth in the pleadings and take and state the account of the defendant Thos. R. Knox as assignee,” instead of providing for the trial of the issues in addition to the account, the order should be modified by inserting in lieu of the words “ to take proof of the matters set forth in the pleadings ” the words “ to hear and determine the issues in the action, and to take and state the account, etc.”

The order as so modified should be affirmed, without costs to either party on this appeal.

O’Brien and Ingraham, JJ., concur.


text:
    Israel Steinhart et al., App’lts, v. Ignatz Gross, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Conversion—Stolen property—Charge as to credibility of thief.
    In an action for the conversion of property alleged to have been stolen, the alleged thief was the only witness to substantiate plaintiff on the main point. Held, that the court did not err in cautioning the jury as to the amount of credence to be given to a case supported by evidence of that character.
    8. Same—Evidence.
    In such a case it is entirely immaterial whether the thief had distributed the property to other persons besides the defendant, and evidence on that point is properly excluded.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      Otto Horwitz, for app’lts ; 0. Strauss, for resp’t.
   Per Curiam.

This action, was brought by the plaintiff to recover from the defendant the value of certain property which the plaintiffs alleged belonged to them, and which had been stolen by one of their employees.

The only witness to, substantiate the plaintiff’s case upon the main point in issue was the thief; and as' far as the questions involved depending upon his testimony and that of the witnesses upon the part of the plaintiffs were concerned, it was entirely a matter for the jury; and we do not see that the learned court in any way departed from the strict path of duty in cautioning the jury upon the amount of credence which was to- be given to a case supported by evidence of that character.

The only question of law presented upon this trial is the exception taken upon the cross-examination of one of the witnesses called upon the part of the defendant. This witness was called for the purpose of showing the nature of certain packages which had been sent by the thief to the defendant, and after having been examined in chief, upon cross-examination testified to the receipt of certain packages, that she had not seen any other packages, and that as far as she was concerned she had received only one package sent by the thief.

The counsel for the appellants was thereupon proceeding with the cross-examination upon this subject, when the court stated that this had nothing to do with the case. The appellant’s counsel stated that the purpose of the examination was to show that this witness, as well as other members of the family, was the recipient of the thief’s bounty, as he called it. The court replied that this fact had nothing to do with the case, and that they could not recover unless they showed that the defendant was the recipient of the goods. Thereupon the plaintiffs’ counsel stated that he would put one or two questions to take the ruling of the court and then drop the subject

“Q. Is that package you have just spoken of the only package that was sent to your house by this man Weiss (the thief) in the spring of 1890 by express?’’

The defendant’s counsel did not object to the question, but the court ruled it out upon its own motion. And this is claimed to be error upon two grounds: that it tended to impeach the credibility of the witness by showing that she as well as the defendant had been the recipient of the packages of the plaintiffs’ goods through the instrumentality of the thief; and that it would have established the fact that the thief was in the habit of distributing his bounty indiscriminately to the members of the defendant’s household.

The first ground now suggested was not named to the court as the reason for the admission of this testimony; and the ground upon which the appellants upon the trial claimed the testimony to be admissible was the second. As to whether this thief had distributed this property to other persons was a question which was entirely immaterial in' the case, and the court was correct in excluding the testimony..

For these reasons we think there is no ground presented showing error in the trial of the case, and the judgment and order -should be affirmed, with costs.

Van Brunt, P. J., O'Brien and Ingraham, JJ., concur.


text:
    James B. Smith, Resp’t, v. Phebe G. Molleson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Bill or particulars—Indemnity.
    Defendant executed a bond to plaintiff for the faithful performance of a contract entered into by a firm, or for the payment of such sums, not exceeding a specified amount, as plaintiff should suffer by reason of any failure of said firm to perform the contract on their part. In an action on the bond, Held, that the bond was one of indemnity only, and that defendant was entitled to a bill of the particulars in which said firm failed to perform the contract and of the damages caused to plaintiff thereby.
    Appeal from an order denying defendant’s motion for a bill of ■particulars.

      W. G. Beecher, for app’lt; J. F. MiUe>\ for resp’t
   Per Curiam.

Section 531 of the Code provides that the court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party. No question can, therefore, arise as to the power of the court to order a bill of particulars.

This brings us to the consideration of the question as to whether or not on the facts presented upon the motion it should have been •granted.

The action is brought to recover upon a bond given by the defendant to the plaintiffs for the purpose of guaranteeing the faithful performance of certain work by the firm of Pratt & Molleson, more particularly described in the complaint

The condition of the bond as therein set out is that if the said Pratt & Molleson should fully perform their said contract according to the terms thereof, or if the said bounden Phebe Gr. Molleson and the White & Gates Granite Co., or either of them, "* * * should well and truly pay or cause to be paid on demand such sum or sums of money, not exceeding $6,000 * * * .as he, the said James B. Smith, should suffer by reason of any failure by the said Pratt & Molleson to perform said contract on their part according to the terms thereof, thén the said bond should become null and void; else to remain in full force and virtue.

It will thus be seen that the bond sued upon is one of indemnity only, and was given for the purpose of saving harmless the plaintiff from any loss that might result by reason of the failure ■of the firm of Pratt & Molleson to fully perform their contract.

Until the plaintiff proves that he has been injured by reason of the failure of Pratt & Molleson to perform their contract, he is not ■entitled to recover.

As these facts which are essential to the plaintiff’s cause of .action must be proven, and as it is essential to enable defendant to fairly present his case on the trial that he should be apprised of the particulars in which Pratt & Molleson did not perform the •contract, and of the damage caused plaintiff by the failure to so perform, we are of the opinion, therefore, that the motion for a bill of particulars should have been granted.

The order should be reversed, with ten dollars costs and disbursements to abide the event, and the motion granted, with ten dollars costs to abide the event.

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


text:
    The People, Resp’ts, v. Hugh Quinn, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Bottles—Indictment—Sufficiency.
    An indictment under the Bottling Act charged in,-three separate counts, in the language of the statute, that the A.Liebler Bottling Co. are engaged in manufacturing, bottling and selling lager beer in bottles with its name and certain marks and devices blown and impressed thereon; and that defendant did unlawfully buy, take, traffic in and dispose of three certain bottles which and each of which were then and there so marked and distinguished as aforesaid with and by the name of said corporation and said, marks and devices, of which a description has been filed and published as aforesaid, and upon which and each of which said bottles there was then and there the marks and devices of said corporation. Held, that the indictment was .nopso indefinite and uncertain as to justify the granting of a motion to dismiss; that the crime being charged in the language of the; statute the indictment was sufficient.
    Appeal from judgment of the court of general sessions convicting the appellant of a misdemeanor.

      A. W. Tenney, for app’lt; W. T. Jerome, for resp’ts.
   O’Brien, J.

The defendant was found guilty of a misdemeanor under chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888, commonly known as the bottling act.

Upon the trial it was proven that the defendant had in his possession three bottles having marks and devices blown upon them which were the property of the A. Liebler Bottling Co., a corporation duly organized under the laws of this state, and which in accordance with the requirements of the statute had adopted these-marks and devices, and caused a description of them to be duly filed and published as required by the statute.

It is conceded by the appellant that the constitutionality of the-act, and most of the other questions sought to be raised upon this-appeal, are similar to those presented in th,e Cannon case, argued at the January term of this court, and decided in the People’s favor. It is unnecessary, therefore, to restate, them, as they have not been urged upon this appeal, the defendant relying mainly upon one ground, viz.: that the indictment was too indefinite and uncertain, and that the learned judge erred in denying the motion to dismiss.

Section 331 of the Code of Criminal Procedure provides that objections mentioned in § 323 thereof can only be taken by demurrer, except that objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at the trial under a plea of not. .guilty, and in arrest of judgment.

Section 323, referred to, which states the grounds of demurrer to an indictment, states as the second ground that the defendant may demur where it appears upon the face of the indictment that it does not “conform substantially to the requirements of §§• 275, 276.’’

A reference to §§ 275, 276 will show what an indictment should contain.

In addition to the title of the action, etc., the second paragraph requires that it should contain “ a plain and concise statement of the act constituting the crime without unnecessary repetition.”

It will thus be seen that the question now presented has been waived, not having been taken by demurrer as provided by the-Code.

Without, however, determining the appeal upon this ground, we think upon the merits, regardless of the particular form or manner of raising the objection, that it is untenable

It should be remembered that no claim is made that the indictment does not state facts sufficient to constitute a crime, the objection being that they are not stated with sufficient definiteness. Unless, therefore, this objection was not available upon the trial,, or unless it could be shown that the defendant was prejudiced thereby, the judgment should not be disturbed.

Section 284 provides in regard to a statement of the crime that, an indictment is sufficient if it can be understood therefrom “(7) That the act or omission charged as the crime was stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

Section 285, provides that no indictment is insufficient nor can the trial, judgment or other proceeding therein be affected by reason of an imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.

An application of these rules for determining the sufficiency of. an indictment to the one found against the defendant will show that it is sufficient, and that the defendant was not prejudiced by reason of any indefiniteness therein. The indictment in three separaté counts, in the language of the statute, stated that the. Liebler Bottling Co. are engaged in manufacturing, bottling and selling lager beer in bottles with its name and certain marks and devices blown and impressed thereon; and that the defendant did unlawfully buy (first count) take, (second count) traffic in and dispose of (third count) three certain bottles which and each of which were then and there so marked and distinguished as aforesaid with and by the name of said corporation and said marks and devices of which a description has been filed and published as aforesaid, and upon which and each of which said bottles there was then and there the marks and devices of said corporation.

It will thus be seen that the indictment charges the crime in the language of the statute creating and defining it, and this we think under the decisions and under the rules provided for testing the sufficiency of an indictment under the Code is sufficient.

In People v. Weldon, 111 N. Y., 569; 20 St. Rep., 112, the court by Ruger, Oh. J., at p. 574, says:

“ It is generally sufficient to state an offense in language used in the statute defining the crime. As said by Judge Folger, in Phelps v. People, 72 N. Y., 349: “If the indictment avers the-offense as the statute defines it, the averment is sufficient, for the rule is that while in framing an indictment on a statute all the ■circumstances which constitute the definition of the offense in the statute itself, so as to bring the accused precisely within it, must be stated, yet no other description of the thing in which the offense was cornmitted is necessary to be stated than that contained in the statute itself Eckhardt v. People, 83 N. Y., 462.”

W e are of opinion, therefore, that the indictment was not so indefinite and uncertain as to have justified the granting of a motion to dismiss the same, and that there was no error committed by the learned judge in refusing so to do.

The judgment should be affirmed.

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


author: Barnard, P. J.

text:
    Isaiah Washburn, Ex’r, Resp’t, v. Sanford H. Weeks, Jr., Ex’r, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    ■Contract—Agreement to make will.
    A husband executed a bond, by which, in consideration of moneys of his wife which he had used, he agreed to leave her by will the sum of $4,000, and the life.use of $4,000 additional. By his will he gave her the use for life of all his property with power to use the principal if necessary. His entire property did not exceed $4,000. Held, that this did not satisfy the condition of the bond, although the wife stated that she was satisfied with the will.
    Appeal from judgment entered upon the report of a referee.
    Reference of a disputed claim against the estate of Joseph Matthews, deceased, upon a bond executed by him conditioned upon his making a will containing certain specified provisions in favor ■of his wife, of whom plaintiff is the executor.

      Joseph C. Crane, for app’lt; Thomas Lawrence, for resp’t
   Barnard, P. J.

On the 24th of March, 1868, Joseph Matthews executed to Sanford H. Weeks, Jr., a bond in the penal ■sum of $12,000 conditioned that the same should be void if Joseph Matthews left by his will to his wife the sum of $4,000 and the life use in four additional thousand dollars. On the same ■day Weeks assigned the bond to Mary F. Matthews. Joseph Matthews died in 1883 leaving real and personal property together amounting to $4,000. Mrs. Matthews died in 1885. The bond was given for money belonging to the wife which she let her husband have. The claim is a just one and no defense was proven to it. By Joseph Matthews’ will the use of all his property was given to his wife for life with power to use the principal if necessary for his wife's support. She was entitled to the $4,000 besides the use of $4,000 more. He had but one $4,000 and when he paid his debt there was nothing left. Neither pay-meat or satisfaction of the bond is established even if Mrs. Weeks .said she was satisfied, after her husband’s death, with his will.

The case is not one where the wife may be compelled to elect As to $8,000 her rights were independent of the will The testator, Mr. Matthews, was bound to leave his wife that sum, one-half in cash and the use of the other half. Nothing but payment will satisfy the bond or a release with full knowledge of the facts. The report of- the referee was confirmed on motion and judgment ordered. No other direction was needed to make a valid judgment in the case; the same should therefore be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


author: Dykman, J.

text:
    Francis Curnan, Resp’t, v. The Delaware & Otsego Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Contract—Rescission.
    A contract for building a railroad provided that the company could dissolve it on five days notice and on payment of the amount due and a liquidated sum. On the death of its president who furnished funds for the work the company directed the work suspended, and finally ordered the removal of all tools, etc. Meld, that a finding of a dissolution of the contract by the company was sustained by these facts.
    3. Same—Evidence.
    In an action upon such contract evidence of conversations with the person who furnished the funds is not inadmissible under § 829 of the Code. The company does not hold through such person within the meaning of the section.
    Appeal from judgment in favor of plaintiff, entered on the decision of the court on a trial without a jury. Action to recover for a breach and dissolution of a contract for building a portion ■of defendant’s road. The contract provided that the company could dissolve it on five days notice, in which case it should pay all sums due and also the sum of $3,000 as liquidated damages. Thomas Cornell, the defendant’s president, furnished the funds for the work. The other facts appear in the opinions. The following memorandum was delivered at the circuit: Barnard, J. —I find that the contract was broken by the defendant. That in the spring of 1890 the defendant ordered all work to stop, that the company requested the plaintiff to keep men, teams and tools ready for an immediate commencement of the work as soon as the interruption in the work caused by the death of Cornell, who supplied the funds for the railroad, or rather who was building this railroad in defendant’s name, ceased. That eleven days after the stoppage of the work the defendant requested the plaintiff to discharge his men and still keep horses, wagons, carts, tools, and all the implements and equipage ready. That at the end of four months the defendant gave notice to remove all the property, which plaintiff did at once. That the amount paid the men was $1,500, and the value of the use of the property kept idle was over $2,000, but the plaintiff has only claimed that sum. There is justly for work done due $13,866.46, with interest on the several parts thereof as claimed in. the complaint. The plaintiff is entitled to recover the $3,000 stipulated damages as for a cancellation of the contract "by the company. The only thing lacking is the five days notice in writing and the payment of this "back work. This notice was waived by the contractor. He offered to take this back pay and the stipulated damages, and the reason for their not giving the notice is very apparent. Mr. Cornell died, and he was, in fact, the builder of this road. The company did not give this notice because it expected a re-commencement of the work, but it directed the contractor to stop, and he did stop. Judgment for the plaintiff for the work, for the stipulated damages, for the cost of keeping men and teams, and so forth, after April 1, 1890.

      O. D. B. Hasbrouck, for app’lt; P. Cantine (John Haclcett, of counsel), for resp't
   Dykman, J.

This is a common law action for the recovery of money based" upon an agreement in writing between the plaintiff and defendant for the construction of about twenty-five miles of single track railroad.

There has been a trial before a justice of the court without a. jury, who decided in favor of the plaintiff and from the judgment entered upon such decision the defendant has appealed.

The findings are full and well supported by the testimony which would justify a larger recovery, but for some difficulty about the complaint which we will not notice as the plaintiff has not appealed.

The justice of the case is entirely with the plaintiff, and the judgment does as much for him as can now be done, although it is evident he has not recovered his whole damage.

The defendant contends that the contract was not dissolved, but the finding of fact is that the defendant directed the plaintiff to discontinue work March 31, 1890, and refused to allow him to continue, by reason whereof the plaintiff furnished no more work or materials under the contract

It is further found that by the terms of the contract it could be dissolved by the defendant, and then the finding enumerates many acts of the defendant which are sufficient to justify a finding of a breach and dissolution of the contract and a refusal to allow the plaintiff to complete the same.

Such interpretation of the conduct of the defendant is reasonable and meets with our entire approbation.

If the interpretation contended for by the defendant prevails, then -the contract will never be terminated by its inaction and refusal to permit the plaintiff to proceed and he will be without recovery.

"We cío not think the admissions of the conversation between the plaintiff and Thomas Cornell, deceased, was error.

The corporation is the defendant, and it does not hold through Cornell in any sense within the meaning of § 829 of the Code.

We find no error in the record nor anything requiring further notice in this opinion. It is not a case for elaboration upon paper; Justice has been done, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Pratt, J.

text:
    In the Matter of The Pocantico Water Works Co., Resp’t, v. Jacob Brombacher’s Sons, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Eminent domain—Water companies—Solvency.
    In a proceeding by a water company to acquire water rights, the solvency or insolvency of the petitioner is immaterial, as the law has provided a sufficient remedy for the property owner before his rights can be invaded, and evidence in relation thereto is inadmissible.
    3. Same—Maps.
    The maps to be filed are only required to indicate the land or rights to he taken, and need not show the location of the petitioner’s works.
    Appeal from order appointing commissioners of appraisal and from order confirming their report.
    Proceedings to acquire water rights for the use of the petitioner. Defendants claim that it was error to exclude evidence to show that the capital stock of the petitioning company had not been paid in, and that the map did not sufficiently describe the easements to be taken or- show clearly the nature or location of the petitioner’s works.

      Hasten & Nichols, for app’lts; E. T. Lovatt, for resp’t.
   Pratt, J.

From a careful consideration of all the facts we are satisfied the orders made' herein must be affirmed. And, first, as to the appointing commissioners.

The petition was proper in form and substance, and no error was made upon the trial of the issues of fact

The solvency or insolvency of the petitioner was not in issue, and the evidence on that subject was properly excluded.

The law provided a sure, sufficient and safe remedy for the defendants before their property could be taken or their rights invaded.

The evidence offered by them as to whether the petitioner had a bank account, or whether all its stock had been taken or its capital increased, was immaterial to the questions to be decided, and was properly ruled out.

As to the objections to the confirmations. First, we are unable to see that the petition is vague, ambiguous or uncertain, either in its allegations or prayer for relief; on the other hand, it seems clear, specific and unequivocal, and the report follows the allegations and the proofs.

Neither can we perceive wherein the maps filed did not comply with the statute.

The object of the map was to indicate the lands to be taken, and in that respect they conformed to the requirements of the statute.

Both orders affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.