text:
    In the Matter of the Petition of the New York Cable Railway Company.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887)
    Street railroad—jurisdiction of court—Consent of property owners.
    Where under the street railroad act the court acquires jurisdiction, for certain purposes, only because of the refusal of the owners of one-half in' value of the property bounded on that portion of the street or highway upon which it is proposed to construct or operate the railway to consent thereto: Held, that there must be placed before the property owner, before he can legally be asked to consent, those necessary materials which the statute has prescribed as being necessary for him to form an intelligent judgment as to the merits of the proposed scheme That where no legal application for such consent has ever been made there could have been no refusal, and the court would be without jurisdiction

      Motion for relieving and order to show cause why report of the commissioners previously appointed by this court in this matter should not be remanded to them for further hearing.

      Everett P. Wheeler, Joseph U. Choate and Robert Sewell, for motion; Aaron J. Vanderpoel, Waldo Hutchins, William C. Trull and others, opposed.
   Van Brunt, P. J.

It is not necessary to discuss the various points which were presented in opposition to the granting of these motions upon the argument thereof, but simply to consider one which seems to show that this court has no jurisdiction whatever to entertain the present applications.

It appears from the act under which this proceeding is taken that the jurisdiction of this court depends entirely upon the refusal of the owners of one half in value of the property bounded on that portion of the street or highway upon which it is proposed to construct or operate the railway or railways, to consent thereto.

It further appears from the decision of the court of appeals upon the appeal to that court from the judgment of this general term, which judgment we are asked to re-open that the rapid transit commissions must exercise the power of deciding upon the plans of construction and that such decision had not up to that time been made and consequently had not been made at the time the consents were applied for, the refusal to grant which was supposed to have conferred jurisdiction upon this court. It was further held that such decision and determination as to plans of construction was necessary in order that those who consent to the construction of the road, whether they be the local authorities, the property owners or the supreme court commissioners, may know to what kind of a road they are consenting, to what degree the streets will be obstructed thereby, of what efficiency the proposed mode of construction is capable.

It may be added that the rapid transit commissioners must exercise the power of deciding upon the plan of construction in order that those property owners to whom application is made for this consent may act intelligently, that they may know to what kind of a road they are are asked to consent, to what degree the streets will be obstructed thereby, of what efficiency the proposed mode of construction is capable, and to what particular objections the method of construction proposed is subject, from which some other method of construction might be free.

In the case at bar the court of appeals has decided that the plans for the construction of the road claimed to have been adapted by the rapid transit commissioners were fatally defective and were no plans at all and did not comply in many material respects with the requirements of law.

That such pretended plans attempted to give to the board of directors of the corporation the right to determine questions the exclusive exercise of which belonged to the rapid transit commissioners. That- they utterly failed to convey that information to the property owners upon the route to which they were entitled before they, could be asked to give their consent.

It may be that it was because of this very 'want of knowledge as to the plans proposed to be used in the construction of these roads the want of any determination as to whether the roads should be surface or elevated that the property owners along the proposed routes have refused their assent. The court of appeals says that the necessary materials were not before the property owners when they were applied to for their assent in this matter to enable them to form an intelligent judgment whether the scheme proposed should or should not be assented to.

As this court acquires jurisdiction only because of the refusal of property owners to consent, there must be placed before the property owner, before he can legally be asked to consent, those necessary materials which the statute has prescribed as being necessafy for him to form an intelligent judgment as to the merits of the proposed scheme, and as under the decision of the court of appeals such matrials did not exist at the time the property owners were applied to for their consent in this matter, no legal application for such consent has ever been made, there has been no refusal and this court is entirely without jurisdiction.

The motion must, therefore, be denied with costs.

Brady and Daniels, JJ., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Charles H. Dwinelle, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    Master and servant—When servants or sleeping car companies are SERVANTS OR THE RAILROAD COMPANY.
    Porters on sleeping cars are servants of the railroad company on which these cars are run during the transportation of the passengers, and the railroad company will be liable for their acts while acting within the scope of their employment; but when the porters of these cars are in no wise engaged about the tranportation of the passengers and are not upon the train by which the passenger is to be transported and have no connection therewith the relation of master and servant, even constructively, is terminated between such porter and the railroad company. Thorpe v, N. Y. 0. and II. B. B. Go., 76 IT. Y., 402, distinguished.
    On the 13th day of August, 1885, the plaintiff purchased of the defendant, paying therefor the regular fare, a ticket from Geneva to New York, and entered a sleeping car attached to one of the defendant’s trains which was called the Norwood. He then purchased from and paid for to the porter, who was in sole charge, a section in that car, and received from the porter a ticket showing that he had purchased said section for a continuous passage from Geneva to New York. He then went to bed having first given up his tickets to the porter at the porter’s direction. The train was due in New York the next morning Upon awaking the next morning the plaintiff found that the train had been run on a side track and detained at Utica all night by reason of a washout on the defendant’s track. The plaintiff’s railroad ticket had been returned to him in the morning, and at about noon he was informed as he believes, by the porter, that it was intended to make up a temporary train and ran down to the washout, and that he would have time to get his dinner if he desired to do so. After dinner the plaintiff’s wife went back to the cars first, and upon the plaintiff going back he met his wife accom panied by the porter, who had been in charge of the-Nor-wood, who was carrying the plaintiff’s small packages. He informed the plaintiff that the Norwood was going no further, and that he was carrying plaintiff’s things over to the temporary train which was to carry plaintiff down to the washout, where the passengers were to walk around the washout and take a train on the other side for New York.
    They went through the various cars of the temporary train but could not find any seats, but finally a gentleman gave the plaintiff’s wife a seat and the porter put the plaint - iff’s baggage down by the door of the car, and turned away from the plaintiff and walked away. The plaintiff then pulled him by the sleeve and asked him for his sleeping car ticket, and in reply the porter said that he had to show it to the company; then the plaintiff asked him to go to the office, and he said he would not go; then the plaintiff asked him to take him to the sleeping car conductor that was going with them; he said that he would show him the conductor, and after walking some distance they passed near a group of men, and the porter said “There is the conductor.” The porter kept on and the plaintiff also; both came to a stop some little distance beyond the group. Before they came to a stop the plaintiff said: “Take me to him and tell him who I am; that I have a right to a section in a sleeping car as far as New York;” and the porter said in reply, “ That is none of my business; and the porter turned to leave, the plaintiff then said, “You must not leave me without giving me some satisfaction in this business;” the porter then turned and said, “Take your hand off me, or I’ll hit you;” and then it was that the porter hit the plaintiff, and for the damages resulting, this action was brought.
    The plaintiff put in evidence the agreement between the defendants and the New York Central Sleeping Car Company, which company owned and controlled the sleeping car “Norwood.” This agreement provides that the sleeping car company is to furnish sleeping cars to run- in defendant’s trains, and to have for their own use and benefit the sums collected for accommodation in the sleeping cars, and is to indemnify the defendants against liabilities to patentees of inventions in respect to sleeping cars, and is to procure the requisite license for inventions used, and is to have the right to place in each sleeping car a conductor and. porter, who are to be carried without charge.
    The railroad company’s conductors are to have the right to enter the sleeping cars to collect the railroad fares, or for any purpose connected with the management of the trains, and to call upon the sleeping car company’s cohductors and porters to assist in maintaining in the sleeping cars the. good order and discipline of the road, but are not otherwise to interfere with the business of the sleeping cars.
    Upon the conclusion of the plaintiffs case, the defendants-moved to dismiss the complaint, upon the ground that the plaintiff had made out no cause of action against the defendants. That the cause of action stated in the complaint, had not been made out. That the act complained of was not within the scope of the authority of the person who did the act. That the act complained of was not done by any servant of the defendants while engaged in performing any duty which the defendant owed to the plaintiff.
    This motion was granted, which ruling was duly excepted to, and from the judgment subsequently entered this appeal is taken.

      Mr. Hugh L. Cole, for app’lt; Frank Loomis, for resp’t.
   Van Brunt, P. J.

The question involved in the appeal seems to be, was the porter who committed the assault upon -the plaintiff to be deemed a servant of the defendant.

It is undoubtedly true that the defendant’s servants were to exercise due care, even though the plaintiff was not actually upon one of its cars, to protect the plaintiff from assault, but as the act complained of was not one to be-foreseen, and consequently could not be guarded against, there is no evidence of want of care in this respect, and the plaintiff must recover, if at all, upon the ground that the assault was committed by one of the defendant’s servants, while engaged in the business of the defendant.

The case of Thorpe v N. Y C and H. R. R. R. Co. (76 N. Y., 402) is relied, upon by the appellant’s counsel as establishing the proposition that the porter in the case at bar was, for all the purposes of this action, the servant of the defendant.

In the Case of Thorpe the plaintiff was a passenger upon the defendant’s train. He entered the cars at Syracuse with the intention of riding in one of the ordinary cars to Auburn. He passed through the two ordinary cars attached to the train, and finding no vacant seats, passed into the drawing room car, and when called upon by the porter to pay the extra charge for a seat in that car, declined to pay the sum demanded, for the reason that he could find no seat in the other cars. The porter attempted to eject the plaintiff from the car; and for this assault the action was brought and the court held that if the right of the-plaintiff to maintain his action depended upon the existence of the conventional relation of master and servant between the defendant and the porter at the time of the transaction in question the action could not be maintained; that the porter was actually the servant of the proprietor of the drawing room cars. But because of the peculiar relations existing between the drawing room car company and the railroad company the court was of the opinion that the persons in charge of the drawing room car were to be ordered and treated in respect of their dealings with the passengers as the servants of the defendants, and that the defendants were responsible for their acts to the same extent as if they were directly employed by the company.

The assault was committed in the Case of Thorpe while the passenger was being transported pursuant to his contract with the railroad company, and it was to enforce a regulation of the company that the attempt was made to remove him.

In the case at bar, however, the porter had performed all the duties which as the servant of the defendant he owed to the plaintiff. He had told him that the temporary train was going on. He had transported the plaintiff’s small luggage to the train, a duty which perhaps he was not legally required to perform, and had left the plaintiff, and it was because of the plaintiff’s anxiety to secure sleeping accommodations, not transportation, that he pursued the porter, and it was solely and entirely m respect to that subject that the further circumstances between the plaintiff and the porter took place which resulted in the assault.

The porter had returned to the plaintiff his passage ticket which he had taken up the evening before so that the plaintiff would not be disturbed during the night, and there was no controversy about that or about the transportation. The whole question was about something additional to that which the plaintiff’s passage, ticket entitled him to receive, and which the railroad company had not agreed to furnish. It might be true that under the rule laid down in the Case of Thorpe, if the assault in question had been committed upon the plaintiff while upon the train, that the railroad company would have been liable, although the dispute was about sleeping car accommodation, which under Laws of 1858 might legally be furnished by another party, but it would be enlarging the rule that the porters on these cars are constructively the servants of the railroad company to an unnecessary extent to hold .that when porters of these cars are in nowise engaged about the transportation of the passengers, and are not upon the train by which the passenger is to be transported, and have no connection therewith, the relation of master and servant exists, even constructively between such porter and the railroad company.

In the case at bar, ás has already been said, the porter was in nowise engaged in the business of the transportation of the plaintiff. The plaintiff had been transferred to another train with which the porter had no connection. He had given up the passage ticket to the plaintiff, had transported his small baggage to the other train, and had gone a considerable distance from the train, followed or accompanied by the plaintiff, without any invitation of his, the plaintiff following him for the purpose of securing sleeping accommodations upon the other side of the washout, with the furnishing of which the defendant had nothing to do. If the défendant furnished transportation, that was all it was required to do by its contract; and if in his anxiety to secure something beyond that to which he may have been entitled from somebody else, the plaintiff met with an obstruction from which he suffered damage, the defendant cannot be held liable therefor.

A large number of cases have been cited by the appellant in respect to the duties and obligation of the carriers of passengers, but none of them elucidate the questions which arise upon this appeal.

W e are of opinion, therefore, that whatever claims the plaintiff may have against the sleeping-car company for the assault committed upon him, that none exist against the railroad company for the reasons above stated.

The judgment appealed from should be affirmed, with costs.

Daniels and Bartlett, JJ., concur


author: Bartlett, J.

text:
    Henry Schmid, App’lt, v. Charles Maeurer, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Trade mark—Medicine—Right to make and sell.
    Both parties to this action were engaged in the sale of a liquid medical preparation first made by one Salzburger, at Salsungen, and still manufactured in that town by a corporation, from which the plaintiff had acquired the exclusive right to sell in this country the compound as prepared by the corporation. The defendant learned the composition of this medicine when at work for the apothecary who then made it at Salsungen. Held, that defendant could lawfully manufacture it and offer it for sale as long as he did not endeavor to deceive purchasers as to its origin by simulating the distinguishing marks adopted by the plaintiff for the medicine made by the German coporation.

      H. Same—What protected as—When the court will intervene.
    The defendant had stamped the corporate name in an abbreviated form upon the capsule of his bottles, with a symbol and motto corresponding to those upon the bottles of the plaintiff. The resemblance was such as readily to mislead. Held, that the plaintiff was entitled to the intervention of the court by injunction, although he was not himself the manufacturer of the goods he desired to protect. That it was sufficient if he owned or controlled them
    8. Same—When not an infringement

      Held, that the defendant was at liberty to represent that the medicine he made and sold is the same in character and composition as that formerly prepared by Dr Salzburger, in Germany, if such was the fact.
    Appeal from special term judgment dismissing the complaint on the merits.

      Antonio Knauth, for app’lt;" Sidney TI. Stuart, for resp’t.
   Bartlett, J.

It seems to me upon the proofs in this case that the plaintiff on the trial established his right to a portion of the relief sought.

The action is brought to restrain the alleged infringement of a trade mark.

Both parties are engaged in the sale of a liquid medical preparation, first made in the early part of the present century by a physician named Salzburger, at Salsungen, and still manufactured in that town by a corporation from which the plaintiff has acquired the exclusive right to sell in this country the compound as prepared by or for the corporation in Germany.

The defendant, however, learned the composition of this medicine when at work for the apothecary who then made it at Salsungen, thirty years ago. There is no reason apparent, therefore, why he may not lawfully manufacture it and offer it for sale, so long as he does not endeavor to deceive purchasers as to its origin by simulating the distinguishing marks adopted by the plaintiff for the medicine made by the German corporation.

While I agree with the learned trial judge that the words Allgemeine Flusstinctur as applied to this compound do not constitute a trade mark, I think the name of Salsungen Company does. Its úse serves to indicate that the article is manufactured at a particular establishment, a fact which may well be influential with buyers. Kidd v. Johnson, 100 U. S., 617, 620. The defendant has stamped this corporate name in an abreviated form upon the capsule of his bottles, with a symbol and motto corresponding to those upon the bottles of the plaintiff. The resemblance is such as readily to mislead, and entitles the plaintiff to the intervention of the court, although he is not himself the manufacturer of the goods he desires to protect. It is sufficient if he owns or controls them. McLean v. Fleming, 96 U. S., 245, 253.

The defendant’s customary notices within the wrappers around the bottles seem equally designed for deceptive purposes.

The defendant is at liberty to represent that the medicine he makes and sells is the same in character and composition as that formerly prepared by Dr. Salzburger, in Germany, if such be the fact. He should not, however, be permitted to use devices which tend to create the false impression that his compound is manufactured by or for the foreign corporation which makes the plaintiff’s medicine. Notwithstanding the defendant’s claim upon the trial that he had given up the employment of these devices, an injunction in respect thereto might properly have been awarded. Freese v. Bachof, 13 Blatchf.. 234.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., and Brady, J., concur.


author: Per Curiam

text:
    FIRST DEPARTMENT, GENERAL TERM.
    Filed June 18, 1887.
    CECELIA L. NORTON, as Executrix, Resp’t, v. THE UNION TRUST CO. OF NEW YORK, App’lt.
    Interpleader—When motion fob should be granted.
    Appeal from an order denying motion for interpleader.

      Cromwell Q. Many, for pl’fE Williamson; Truman iff. Baldwin, for pl’ff Norton; Miller, Pedeham <& Dixon, for defendant.
   Per Curiam

From the facts disclosed upon the papers presented upon this appeal, it is apparent that the Trust Co., the defendant herein, cannot determine without hazard to itself to which of the parties claimant the subject matter of this litigation belongs. Under these circumstances under section 820 of the Code, it is entitled to be relieved from the litigation by depositing the money in court, so that the two hostile claimants may be allowed to litigate their respective claims.

Under the circumstances we think that the defendant should be relieved from this litigation and the other claimant brought in, and that therefore the motion for interpleader should have been granted.

Order appealed from reversed with costs of appeal, and motion and order for interpleader granted.


author: Per Curiam.

text:
    IN THE MATTER OF THE PETITION OF THE METROPOLITAN TRANSIT CO.
    Stay of proceedings—When not granted.

      &. W. Wingate, for motion; J. 8. Aurerbach, opposed.
   Per Curiam.

As we cannot see that by the continuance of the proceedings the interests of the moving parties are in any way affected, no grounds for staying these proceedings are apparent.

Motion should be denied.


author: Lawrence. J.

text:
    THE METROPOLITAN ELEVATED RAILWAY CO., App’lt, v. SYLVESTER H. KNEELAND et al., Resp’ts.
    Appeal from judgment sustaining plaintiff’s demurrer.

      Julien T. Dames and Charles A. Gardiner, of counsel for app’lt; Francis C-Barlow and Albert Stickney, of counsel for resp’ts.
   Lawrence. J.

The judgment should be affirmed, for the reasons stated in the opinion of Mr. Justice Beach Van Brunt, P. J., concurs; Potter, J., dissents.


text:
    SILAS SEYMOUR v. THE ADIRONDACK RAILWAY CO.

      William Sutphen, for app’lt; Bdbert F. Little, for resp’t.
   Per Curiam.

The disposition made of the case at special term was warranted by the facts appearing, and gave to the defendant all the information it was entitled to for the purposes of the action.

The order will be affirmed, with costs


text:
    MORTIMER D. HENDRICKS, Resp’t, v. CHARLES G. WOLFF, Appl’t.
    Pleading—When demurrer not frivolous.
    Appeal from order overruling demurrer.

      E. E, Dodge, for appl’t; A. Kling, for resp’t.
   Per Curiam.

We do not think that the demurrer in the case at har was frivolous. There are questions raised by the demurrer which require consideration, and the complaint upon inspection does not appear necessarily to be good.

In the case of Keteltas v. Myers (19 N. Y., 231), the complaint contained various allegations which are not to be found in the case under discussion.

The order should be reversed, with ten dollars costs and disbursements.


text:
    ELIZABETH S SPRING, Administratrix, etc., v. FRANCIS GEORGE, Impleaded, etc., and another.
   Per Curiam.

Order reversed, without costs of the appeal, and. default opened on payment of trial fee and disbursements and ten dollars costs of motion.


text:
    JOHN HONE v. J. W. DE PEYSTER.
    Appeal from order directing .the clerk to mark the docket “Lien suspended on appeal.”

      &. E. Brewster, for app’lt; J. E. Wan'd, for resp’t.
   Per Curiam.

The appeal upon the original case having been heard and decided, this appeal should be dismissed with ten dollars costs and disbursements.


text:
    CHARLES A. CLEGG v. THE NEW YORK NEWSPAPER UNION et al.

    Motion to dismiss appeal upon the ground that the proper printed papers have not been served.

      Philip Carpenter, for motion; Wm. Ford Upson, opposed.
   Per Curiam.

An inspection of the order appealed from shows that the papers read upon the motion are not recited, and consequently this court cannot determined whether the proper papers have been printed or not, and the motion must be denied without costs.

The order should be sent back to the justice making the same for resettlement.


text:
    HANNAH CRINE v. HERMANN BORNEMAN.
    Amendment of complaint—Terms imposed.

      Benno Loewry, for app’lt; John M. Bowen, for resp’t.
   Per Curiam.

The terms on which leave was given to amend the complaint on payment of all costs of the action were too severe. To meet the ends of justice in the case all that was required was to reimburse the defendant for the costs of the trial and the costs of opposing the motion. The amount required to be paid should be reduced to the trial fee, the disbursements on the trial, including witness’ fees and ten dollars costs of opposing the motion, without costs of the appeal.


text:
    MARY A. FOSTER, App’lt, v. JAMES EASTON, et al., Resp’ts.
    Appeal—When not considered.
   Per Curiam.

The appeal from the judgment in this case cannot be considered by the court because the printed record does not show that any findings of fact or conclusions of law were ever made by the court below.


text:
    EDWIN A. BRADLEY and another, App’lts, v. WARD B. CHAMBERLAIN, Assignee, and another, Resp’ts.
    Reference—When should be opened—Terms of.

      Thomas G. Ennever, for app’lt; Eastings & Southworth, for resp’ts; William, Whattey, for deft. Chamberlain, resp’t.
   Per Curiam.

We think, under the circumstances disclosed by the record, the learned justice erred in denying the application. The reference should have been opened for the purpose of enabling Mr. WyckofE to establish his claim derived from the assignment, whatever it may be, with liberty to introduce such evidence as he may be advised upon all the questions to be passed upon by the said referee affecting the distribution of the fund. We think, however, this should be on condition that the appellant pay ten dollars costs of the motion, and shall also pay such additional referee’s fees as shall be incurred in consequence of the order made herein.

Order appealed reversed and motion granted upon conditions above mentioned.


text:
    EDWIN A. BRADLEY and another v. WARD B. CHAMBERLAIN, Assignee, etc., and another.
    Notice—Who entitled to.
    £?. 8. Bastings, for pl’ff; J. F Miller, for deft.
   Per Curiam.

In an action of this character, where a creditor appears and files his claim, he makes himself thereby a party to the action and is entitled as such to notice of all subsequent proceedings in connection therewith.

The order appealed from should therefore be affirmed.


author: Brady, J.

text:
    ARNOLD LUSTIG, App’lt, v. ELIAS SPINGAM et al., Resp’ts.
    Partnership—In real estate—Prooe necessary to establish.
    Appeal from judgment dismissing complaint.

      Adolph L. Sanger, for app’lt, G G. Beaman <6 F. B. Mirirath, for resp’ts.
   Brady, J.

Assuming that under section 1543 of the Code the title of the plaintiff may he tried and determined in an action like this, and that the dictum in Van Schuyver v. Mulford (59 N. Y., 430), is overcome; and assuming also that a partnership interest in real estate may be created by parol, nevertheless it is necessary in an action where the title is predicate of the charge that as to the property described the plaintiff and the other owner were copartners or jointly interested, the proof should be such as to meet all the legal requirements which such a relation necessarily and properly involves.

The plaintiff is a broker and dealer in real estate. The record purchaser Siegmund Spingarn is and was at the commencement of this action, deceased. The property in question was purchased at auction by the plaintiff for the deceased; and the presumption would be, unless overcome by competent testimony, that what he did in that respect he did as a broker, for the testimony clearly shows that the deceased paid the entire consideration for the purchase of the property, and all the expenses attending it, the plaintiff having contributed, if at all, nothing except his services in the purchase.

The evidence by which the plaintiff seeks to establish his interest in the land consists of a number of alleged declarations to the effect that the plaintiff had an interest in the property. But these declarations when analysed by cross-examination, assumed a general and indefinite character, and were in the main unsatisfactory and insufficient to establish the alleged relation of partnership.

The learned justice has found upon the evidence that no agreement of this kind existed between the parties either verbally or in writing; that is to say that the plaintiff has failed to prove any agreement whatsoever entered into between him and the deceased either in writing or otherwise in reference to the purchase or ownership of the real estate described in the complaint.

In actions brought after the decease of a partner, and particularly where the cause of action has been of some time standing, courts cannot be too careful in enforcing the strict rule of requiring clear and convincing proof of such a relation as the plaintiff asserts to have existed between him and the deceased.

A careful examination of this case and much reflection upon its various features in respect to the asserted interest of the plaintiff has led to the conclusion that the judgment pronounced by the court below was correct.

There is no pretence that the plaintiff paid any part of the purchase money or ever offered to pay it, or any part of the expenses attending the purchase or in any way incident to it, or indeed as already suggested, of anything, but mere declarations of an interest which does not rest upon any consideration, and which it may be were of a friendly character founded upon good will.

The judgment should be affirmed.

Babtlett and Patteeson, JJ., concur.


author: Per Cubiam.

text:
    FARMERS’ LOAN AND TRUST CO., Resp’t, v. THE BANKERS AND MERCHANTS’ TELEGRAPH CO. and others, Appl’ts.
    Mortgage foreclosure—Property situated out of the state—Conveyance of.

      Robert Q. IngersoU and R. H. Qriffin, for appl’ts; Turner Lee & McClure, for Tesp't.
   Per Cubiam.

We think that the case of the Union Trust Co. v. Olmsted (102 N. Y., 729; 2 N. Y. State R., 506), is an express authority in support of the conclusion to which this court arrived upon the argument of this appeal. The parties by their agreement having determined the method by which a conveyance of the property situated out of the state might be made upon the foreclosure of the mortgage, this court should not intervene to make a different or ether contract between the parties.

Motion for reargument denied, with ten dollars costs.


text:
    JAMES CRUIKSHANK, as Executor, v. HOME FOR THE FRIENDLESS et al.

    Appeal from judgment of special term.

      Luden B. Chase", lor appl’t Chase; Michael H. Cardozo, for p’lff; Joseph A. Welch, for executor Chambers; Bartlett Wilson & Hayden and others, for the resp’ts.
   Per Cubiam.

We think, for the reasons stated in the opinion of Mr. Justice Beach in the court below, that the judgment rendered was right.

It should therefore be affirmed without costs.


text:
    GEORGE F. LANGBEIN and others v. CHARLES E. AARON.

      Tuttle Qoodel & Brooks, for appl’t; Langbein Bros. & Langbein, for resp’t.
   Per Curiam.

Orders affirmed, with ten dollars costs of appeal in one case and disbursements in both cases.


text:
    THE PEOPLE ex rel. GEORGE BLONK v. THE BOARD OF POLICE.
    Police officer—Improper dismissal of.
    Certiorari to review dismissal of relator.

      C. A. Hess, for relator; E. H. Lacombe, for resp’t.
   Per Curiam.

It is apparent, from a reading of the evidence produced by the relator i pon his trial before the police commissioners, that he did not intend to commit a breach of discipline, but acted under a mistaken interpretation of his duty under the instructions which were given him by his captain.

Und r these circumstances we do not think that he should have been dismissed from the force, and such a.tion of the commissioners should be reversed.


text:
    KATIE HARTMAN, Resp’t, v. PETER HARTMAN, Appl’t.
    Divorce—When confirmation of referee’s report should be denied.
    Appeal from order denying confirmation of referee’s report.

      E. H. Qrandiu, for appl’t; W. F. Browne, for resp’t.
   Brady, J.

This action was brought to obtain a divorce on the ground of adultery. The answer denied the charges and set up adultery on the part of the plaintiff. To this a reply was served containing a general denial under oath. A_ reference was ordered and the case was brought to trial. The referee decided in favor of the defendant, whereupon the appellant’s counsel duly served and filed objections and exceptions to the report, and on a motion to confirm the report, the learned judge presiding, impressed with the erroneous conclusions at which the referee had arrived, refused to confirm the report, and from the order made upon that decision this appeal is taken.

It is not deemed necessary to discuss with any detail the testimony which was given before the referee. It is sufficient to say that an examination of the record leaves a most decided impression that there is a preponderance of disinterested evidence against the findings of the referee by which he declares that the defendant did not commit adultery. The same view presents itself upon consideration of the evidence with regard to the charge of adultery made against the plaintiff. The al.eged adulterer denies positively under oath the charge of his intimacy with the plaintiff, and the adverse testimony is not disinterested, and does not seem to be at all reliable.

For these reasons thus generally stated we think the order appealed from was properly made, and should be affirmed with ten dollars costs and disbursements.

Bartlett and Daniels, JJ., concur.


author: Landon, J. Bocees, J.

text:
    THIRD DEPARTMENT, GENERAL TERM.
    Filed July, 1887.
    SPICKERMAN v. WM. McCHESNEY.
    Reference—Order op—Stay of proceedings,
   Landon, J.

Orders affirmed on opinion of special term, with ten dollars costs and printing disbursements in each case.

I advise affirmance, but without prejudice to renewal of application for stay upon report of referee, if in plaintiff’s favor, and before decision in court of appeals in former action. Such stay might then be made upon proper terms as to earnings and custody of boat. Defendant ought not to be deprived of whatever benefit may result from a reversal of judgment in former action, if he procure it.

Bocees, J.

I concur as to the order of reference, but should not there be a stay on the facts of this case.


text:
    CHARLES MOON, President, v. JOHN D. WORTH.
    Action—Musical society—Authority of president to bring action.
   Per Curiam.

We think this case was properly decided,

It is probably unnecessary to decide whether or not this musical society was a joint stock association. It is certainly doubtful whether there was any stock which could be transferred, and by the transfer of which a new member would be brought in. At any rate it is enough to say that it is not sufficiently shown the plaintiff was authorized to bring the action. There were nineteen members. Only seven of them appear to have elected him president; and the authority for their meeting is not shown. The constitution is not given in evidence, nor are its contents proved. So we have no reason to think that this election was valid. If the association was a partnership, the defendant had as much right to the possession of the partnership property as any other member had; and seven members, by a vote of expulsion, could not deprive him of his rights.

Judgment affi med, with costs.


author: Davis, P. J.:

text:
    WILLIAM LUPTON, Appellant, v. FREDERICK W. SMITH and JAMES LUPTON, Respondents.

      Attachment—action upon choses in action levied upon—by whom must be bi’ought— (Me, § 238.
    An action brought to enforce choses in action, upon which an attachment has been levied, must be brought in the name of the sheriff, or of the debtor in the attachment.
    Section 288 of the Code, providing that actions may be prosecuted by the plaintiff in the attachment, does not authorize the plaintiff to bring an action in his own name, but only enables him to take the control of such suit when brought by the sheriff, or to bring the same in the name of the sheriff, upon executing to him the bond of indemnity required by the statute.

      Van Volhehbwrgh v. Bates (14 Abb. [ST. S.], 314) followed.
    Appeal from an order of the Special Term, vacating an attach7 ment.

      J 3. dk B. F. Watson, for the appellant.

      0. Bainbridge Smith, for the respondents.
   Davis, P. J.:

The appeal in this case presents a single question ; and that is, whether, under section-238 of the Code of Procedure, the plaintiff in attachment cases may, by giving the bond therein provided, prosecute in his own name the action which the sheriff is authorized to bring by sections 232 and 237 of the Code.

This question has received consideration in various cases, and conflicting views have been expressed upon it. In Skinner v. Stuart, the point was not directly involved, because that was an action brought by the plaintiffs in attachment proceedings to compel the delivery of tangible property to the sheriff; but Cler±e, J., in his opinion discusses the effect of section 238, and expresses the conclusion that debts,credits and effects maybe collected in actions brought in the name of the attaching creditor, on giving the bond. In The Mechcanics' Bank v. Dakin, the question was not directly involved, but Leonard, J., examined it, and came to a conclusion directly the reverse of that expressed by Mr. Justice Clerke. In Millbank v. The Broadway Bank, the only question, to which the attention of the court seems to have been called, was, whether, in an action pending in the name of the plaintiff, the bond to the sheriff could be filed nwno pro tunc. The court, Ingraham, J., held that, under sections 173 and 174 of the Code, the power to relieve from the consequences of such an omission existed. What would have been the views of the learned justice on the question now before us, if the present point had been raised, is at most mere matter of inference from the order granted.

The point was only incidentally alluded to in O'Brien v. The Glenville Woolen Co. (50 N. Y., 128), and 51 New York, 519, in which the Court of Appeals and the Commission of Appeals appear to be in conflict upon the question really involved in those cases. Nowhere do we find the question so directly presented as in Van Valkenburgh v. Bates, in the New York Superior Court at Special Term,' reported in the note to O'Brien v. The Mechanics and Traders' Fire Insurance Company, in which Van Worst, J., in a clear and able opinion which reviews all the authorities, comes to the following conclusions:

1st. That an action, in aid of an attachment, brought to enforce choses in action, upon which an attachment has been levied, must be brought in the name of the sheriff, or in the name of the debtor in the attachment.

2d. That the provision of the Code, that actions may be prosecuted by the plaintiff in the attachment, do not authorize the plaintiff to bring them in his own name, but enables him to take the control of such suit when brought by the sheriff, or to bring the same in the sheriff’s name, on executing the bond of indemnity to the sheriff required by said section.

These conclusions have our full concurrence; and the reasons set forth by the learned judge in his opinion, as we think,- lead irresistibly to the result at which he arrived.

We adopt them as our own; and, in consequence, affirm the order appealed from, with ten dollars costs of the appeal, besides disbursements.

Daniels, J., concurred.

Ordered accordingly.

      39 Barb., 306.

       50 Barb., 587.

       8 Abb. (N. S.), 333.

       14 Abb. (N. S.), 314. .

       Section 288.


author: Daniels, J.:

text:
    HOLLIS S. POWERS, Respondent, v. JOHN TRENOR, Impleaded, etc., Appellant.

      XJnwathm'md appearance—when defendant bound by—Judgment of foreclosme by default—when opened.

    In this action, brought to foreclose a mortgage, the defendant was not served with a summons, but his son, to whom he had given a general power of attorney, retained attorneys who, in good faith, appeared for him in the action. Upon a motion to set aside a judgment, entered by default, held that, as the appearance was regular in form, the court acquired jurisdiction of the person of the defendant, and that, as it was not alleged that the attorneys were insolvent, the judgment should not be set aside for the sole reason that then1 appearance was, in fact, unauthorized.
    A judgment by default, in an action in equity to foreclose a mortgage, will not be set aside, simply upon affidavits excusing it, accompanied by an affidavit of merits.
    - In such case the defendant must either produce the sworn answer which he proposes to put in, or must, in his petition or affidavit, state the nature of his defense and his belief in the matters constituting it, so far, at least, as to enable the court to see that injustice will probably be done by permitting the judgment to stand.

      Appeal from an order, denying a motion to set aside a judgment in foreclosure.
    Brown, Hall <& Vanderpoel, for the appellant.

      Won. Gleason and D. Mo Mahon, for the respondent.
   Daniels, J.:

The motion made to set aside the judgment in this action, was chiefly placed upon the ground, that the attorneys who appeared for the defendant, did so without, authority, and without the service of process upon him. That the summons was not served upon him, either personally or otherwise, is not denied. But it is claimed that the appearance was hy virtue of the authority he had previously conferred upon his son, as his attorney in fact. The clause which created the authority, if indeed that was broad enough for that purpose, is that which was inserted in the power . of attorney, executed in 1868, by which the defendant empowered his son to exercise the general control, supervision and management over all his lands, tenements and hereditaments ; to keep the same in proper repair, and pay all legal assessments and taxes imposed on the same, and all other and necessary expenses in and about the care and management of the same, giving and granting unto his said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he himself might or could do if personally present. Two later powers were produced in answer to the motion, but the authority conferred by them was to perform specific acts, and attend to business particularly described, not including authority to appear in any civil action for the defendant. • And it may well be doubted whether the more comprehensive clause recited, should not receive the same construction. For, although the terms used are general, the authority conferred by them may fairly be assumed as being limited to the particular things the attorney was previously authorized to do.

But notwithstanding this defective authority, the person so authorized did employ attorneys to appear for the defendant in this action, upon the apparent supposition that his authority was sufficient for that purpose. And they in good faith appeared for the defendant while he was absent from the State, securing, by doing so, all the time which would have been required for the service of the summons under an order of publication. It is not pretended that these attorneys are insolvent, or that the defendant cannot receive ample redress by proceeding against them for any injury he may have sustained by means of their unauthorized appearance, even if that should be in the end determined to be its character. And for that reason, as their appearance was in form regular, the court acquired jurisdiction of the person of the defendant by means of it, and the plaintiff was entitled to proceed upon it, in the action. Under these circumstances, the judgment recovered was regular between the parties to it, and the settled practice of the court is opposed to setting it aside for the mere reason that the appearance was in fact unauthorized. Upon this subject the rule is uniform in courts both of law and equity.

This was an action in equity to foreclose a mortgage, and sell the premises described in it to pay the debt secured by it. In such an action, the settled practice has been against setting aside a regular default, simply upon affidavits excusing it, accompanied with an affidavit of merits, although in ordinary cases at law the rule is different. The advantages of delay have been deemed sufficient to justify the adoption of more stringent practice than that in this class of cases. In Hunt v. Wallis, it was held to be the settled practice of the Court of Chancery, not to set aside a regular order to take a bill as confessed in a foreclosure suit, or in any other case, where the defendant has any interest or inducement to delay the proceedings, upon a simple affidavit of merits, although an excuse is given for such default. But in such cases the defendant must either produce the sworn answer which he proposes to put in, so that the court may see that he has merits, or must, in his petition or affidavit, state the nature of his defense, and his belief in the truth of the matters constituting such defense; so far, at least, as to enable the court to see that injustice will probably be done, if the order to take the bill as confessed be permitted to stand. And as this rule is not inconsistent with any provision made by the Code of Procedure, it is still continued in force, The application which the defendant made to be relieved from the default taken against him on the merits, was not sufficiently sustained to meet what was required by this rule to render it successful, for, upon all the papers produced, it seemed to be quite certain that no defense existed against the mortgage debt in his favor. The motion therefore was properly denied, and the order appealed from should be affirmed with ten dollars costs, besides disbursements.

Davis, P. J., and Lawbenoe, J., concurred.

Ordered accordingly.

       Adams v. Gilbert, 9 Wend., 499; Hamilton v. Wright, 37 N. Y., 502; Brown v. Nichols, 42 id., 26; Am. Ins. Co. v. Oakley, 9 Paige, 496.

       6 Paige, 371.

       Id., 377; Winship v. Jewett, 1 Barb, Ch., 173; Goodhue v. Churchman, id., 596.

       Code, § 469, and Rule 97 of this court.


text:
    THOMAS FOSTER, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

      Evidence—what admissible on criminal 1/rial.

    Upon the trial of the plaintiff in error for burglary, evidence was received showing the disappearance of certain cigars, which were not mentioned in the indictment, with the articles which were therein mentioned. Held, that the evidence was properly admitted. The theft of the cigars constituted a part of the transaction on which the indictment was found, and was admissibly as a circumstance showing its nature and extent.
    " A box containing burglars’ tools, found in the office of the Adams Express Co., at Boston, shortly after the burglary, was produced and identified at the trial. It was proved that it was made for.the prisoner ; that it was taken to his residence and sent away by an express wagon ; that it was marked with the name of Foster (his name) ; and that he, with another person, was at the express office when it was found. Held, that the evidence was sufficient to connect the prisoner with the box, and that an objection to its reception in evidence, on the ground that such connection was not sufficiently established, was not sustainable.

      After the box and its contents had been received in evidence, an officer was allowed to state the names of the drills, fuses, etc., found therein. Held, that this was proper. That as the box and its contents had been received without violating any rights of the prisoner, no harm could be done him by allowing the officer to name the articles found therein.
    Writ of error to the Court of General Session for the city of New York, to review the conviction of the plaintiff in error of the crime of burglary.

      Wm. F. Howe, for the plaintiff in error.

      B. K. Phelps, district attorney, for the defendants in error.
   Daniels, J.:

The prisoner was convicted of the crime of burglary in the third degree, committed by breaking and entering a store in the nighttime, and stealing therefrom certain goods kept there for sale. It was claimed in his behalf that the crime of burglary was not established by the evidence. But, as it appeared that the scuttle had been forced open, and the lock of the back door had been burst off, through which the entry in the store had probably been made, no reason existed for the support of this objection.

Among the articles missed from the store in the morning, when the burglary and theft were discovered, was a quantity of cigars, not mentioned in the indictment. That they had disappeared with the articles which were set forth, was allowed to be proven by the court. Their theft constituted a part of the transaction on which the indictment was found, and, for that reason, no well founded objection could be taken to the allowance of proof of the fact. It was a part of the same act which constituted the crime charged, and admissible as a circumstance showing its nature and extent.

A box containing burglars’ tools, found in the office of the Adams Express Compa-ny, at Boston, shortly after the burglary, was produced and identified at the trial. By a witness, residing opposite to the prisoner, it was shown that the box had been made for him by a carpenter working in the vicinity, and that it had afterward been taken by the prisoner to his own residence, and sent away from there in an express wagon. It was marked with the name of Foster, and found at the express office at Boston, while he and another person were there for the probable purpose of taking it away. This was certainly sufficient to connect the prisoner with it, and to warrant the court in receiving it as evidence, as long as no other or different objection was taken to its admissibility. It was simply objected to, because it was in no way proven to be connected with the prisoner*. In view of the evidence given upon the subject, this objection was without the least colorable support.

After the box and its contents had been received in, evidence, objection was made to the witness stating what the jimmies, drill and fuse were; and, after the prosecution rested, a motion was made to strike out the evidence, given as to the contents of the box, and the description of the instruments. But as the box and its contents had been received and placed before the jury, without violating any of the" prisoner’s rights, no harm could be done to him by permitting the officer to name the instruments produced. He waived the right to object to them as evidence, by specifically restricting and confining his objection to a particular reason, having no "foundation in the case. After that, no valid objection could exist to evidence showing the names of some of the articles contained in the box. By the form in which the objection was made, the defendant, in substance, conceded that the box and its contents were proper evidence, if he had been sufficiently shown to' be connected with them. After that virtual concession, and the box and its contents were received in evidence and the prosecution rested the case, it was too late to allow the motion to strike out the evidence to prevail. Ho other objections have been taken to the propriety of the prisoner’s conviction; and, as those considered can neither of them be maintained, the judgment should be affirmed.

Davis, P. J., and Barrett, J., concurred.

Judgment affirmed.

      Quin v. Lloyd, 41 N. Y., 349.


text:
    • HENRY HXRSCH v. WILLIAM S. LIVINGSTON, Executor, etc., and another, Respondents.

      Foreclosure sale—purchaser at—when relieved from bid.

    This is a motion by the purchaser of a leasehold interest in certain premises in the city of New York, sold under a judgment of foreclosure, to be relieved from his bid. The motion was made on the grounds, that the lease contained certain unusual covenants, which were unknown to him at the time of the sale, and that certain persons were not made parties to the action, who were, at the time of its commencement and of the judgment and sale, in possession of the premises as tenants. Held, that, as the tenants could not be forcibly dispossessed by any process which could be issued to enforce the judgment, the motion should be granted.
    Appeal by one Pangburn, the purchaser at a foreclosure sale, from an order denying a motion that the referee refund the deposit made by the purchaser pursuant to the terms of the sale, and that he be discharged from his bid.

      A. JR. McMahon, for the appellant.

      M. 8. Thompson, for the respondents.
   Daniels, J.:

The premises were sold under a foreclosure judgment, recovered by the plaintiff in this court, in an action in his favor against William S. Livingston and another. The interest sold in them, consisted of a term for years, created by a lease given by William B. Astor. After the appellant had bid off the property, subscribed the terms of sale, and paid ten per cent upon the purchase-price, he declined to take the title, on account of certain restraints imposed by the lease, and because, at the time when the action was commenced, there were tenants in possession of the demised premises, who, ever since then, continued therein, that were not made parties to the action, and were not bound by the judgment. These objections were verified by the affidavits of the appellant, and have not been denied on the part of the plaintiff. For that reason, they must be assumed to be well founded in fact. And, if they are, then the purchaser has shown that he could not, by any legal proceedings under the judgment, acquire possession of the premises sold him, if he had taken a conveyance of the title. For, as the tenants were in possession when the action was commenced, and since remained in possession, it is clear that they could not be forcibly dispossessed by any process which could be issued to enforce the judgment.

If such a sale would give the purchaser a title, it would fail to confer any right of possession against the tenants holding the property ; and that would deprive him of an important interest, which he was justified in expecting would be acquired by his purchase. If the tenants were willing to yield up their possession to the purchaser at the foreclosure sale, that ought to have been shown as a fact, by way of answer to his motion. As long as that was not attempted, it cannot be presumed for the purpose of compelling him to receive a title plainly defective. What he had the right to suppose he was to receive by means of the purchase, was not merely a title to the interest sold, but, beyond that, the power of securing immediate possession. If he could obtain the former, the latter did not exist, because of the defective proceedings in the foreclosure action; and that, under the law governing the obligations of purchasers at foreclosure sales in courts of equity, was sufficient to justify the appellant in his refusal to complete the purchase,

The order should be reversed with ten dollars costs, besides disbursements on the appeal; and an order should be entered, relieving the purchaser from his bid, and directing the deposit made by him to be refunded by the referee.

Davis, P. J., and Barrett, J., concurred.

Ordered accordingly.

       Fuller v. Van Geesen, 4 Hill, 171.

       Moras v. Mowatt, 2 Paige, 586, 590; Veeder v. Fonda, 3 id., 94; Seaman v. Hicks, 8 id., 655.


text:
    THE PEOPLE ex rel. THE TENTH NATIONAL BANK OF THE CITY OF NEW YORK, Respondents, v. THE BOARD OF APPORTIONMENT OF THE CITY AND COUNTY OF NEW YORK, Appellant.

      Chapter 583, Lams of 1871—when court will compel the issue of the bonds therein “ provided for—Disputed claim.—how decided.

    A peremptory mandamus will not be granted requiring the board of apportionment of the city and county of New York to issue bonds, in pursuance of chapter 583, Laws of 1871, until it is established that a debt is owing to the relator, which may lawfully be paid out of the proceeds to arise upon the sale of such bonds.
    A conceded claim, audited and allowed by the proper authorities, would be sufficient to entitle the relator to require that the fund for its payment should be raised, but a controverted demand can justify no proceeding of that kind. Where disputed matters of fact arise in proceedings by way of mandamus, issues of fact must be formed and tried by a jury, in all cases where the existence of a long account may not require the case to be referred.
    Appeal from an order directing a writ of peremptory mandamus, requiring the board of apportionment of the city and county of New York forthwith to meet, and, by concurrent vote, to authorize the issue of stock of the county of New York, pursuant to the provisions of chapter 583 of the Laws of 1871; and to take such action as will authorize the comptroller of the city of New York to pay to the Tenth National Bank of the city of New York the sum of $242,579.92, with interest thereon from the date of the several advances of the amounts composing said sum, being the claim of the bank for advances made to the commissioners of the new county court-house, prior to the 31st day of December in the year 1871.

      John K. Porter and John U. Strahan, for the appellant.
    A motion for a peremptory writ upon the moving and opposing affidavits, is in the nature of a demurrer. It concedes the facts to be as set forth in the opposing affidavits. (People ex rel. Bentley v. Com. of Highways, 6 Wend., 559, and 7 id., 474; Commer. Bank of Albany v. The Canal Com., 10 id., 31; People ex rel. Jennings, v. Seymour, 6 Cowen, 579; Ex parte Rogers, 7 id., 526;
      Fish v. Weather way, 2 John. Cases, 217; People ex rel. Wiswall v. Judges of Renss. Co., 3 How., 164.) The act is unconstitutional. It embraces more than one subject, viz., liabilities of and claims against the city of New "York, and liabilities of and claims against the county of New York. (People ex rel. Morris v. Edmonds, 15 Barb., 529; People ex rel. Downing v. Stout, 23 id., 338; Baker v. Mayor, 9 Abb., 82; Halstead v. Mayor, 3 N. Y., 436; Gaskin v. Meek, 42 id., 186; People ex rel. Davies v. Com. of Taxes, 47 id., 501; Huber v. The People, 49 id., 132; In re Mayer, 50 id., 504; Sun Mutual Ins. Co. v. The Mayor, 8 id., 241; People ex rel. McConville v. Hills, 35 id., 449; People v. O’Brien, 38 id., 193.)

      Henry.E. Davies and Henry H. Anderson, for the respondents.
    Whether a peremptory mandamus will issue in- the first instance, is a matter for the exercise of discretion on the part of the court. (Knox Co. v. Aspinwall, 24 How. (U. S), 376; People ex rel. Hall v. Supervisors, 32 N. Y., 473; Dwarris on Statutes, 712; Rex & Reg. v. Barlow, 2 Salkeld, 609; City of N. Y. v. Furze, 3 Hill, 612; Newburgh T. Co. v. Miller, 5 Johns. Ch., 113; Minor v. Mechanics’ Bank, 1 Peters, 64.)
   Daniels, J.:

The object of the writ ordered to be issued, was to provide a fund for the payment of a claim made by the relator for moneys alleged to have been advanced to the commissioners of the new county court-house, during the continuance of a bank account extending from the 29th day of April to and including the 2d day. of September, in the year 1871.

In deciding the application for the writ, the learned justice by whom it was heard and disposed of, did not determine nor pass upon the question of the liability to pay the debt claimed to exist in favor of the relator. But the writ was directed to be issued for the purpose of creating a fund from which the debt could be lawfully paid, in case its existence should afterward be properly established. It was contingent in its nature, rendering the use of the fund dependent upon the circumstance of the relator’s, ability to show that a just debt was due to it which should be paid out of such fund.

It .has been quite common to require municipal bodies to raise money by taxation, for the payment of debts existing against them. But legal proceedings for that purpose have neither been authorized nor maintained until after the demands to be provided for have been audited and allowed, or established in some other legal manner. Until that is first done, no necessity can exist for the creation of any fund for their payment; and the claimant can have no such right to it as will authorize him to require the authorities to raise it. The proceeding taken in this case forms no exception to this principle. For, if the relator has no debt which can lawfully be paid out of the fund proposed to be created, it manifestly has no right to require the authorities proceeded against to take any measures for the purpose of raising it. A mere possibility that it may be able to establish the existence of a demand of that nature, cannot be sufficient for that purpose. If it should be, then it is very clear that the fiscal authorities may be required and compelled to create funds, by both taxation and loans, which may never be required for expenditure. That is an obligation which should be very clearly shown to be created, before courts of justice.can properly be justified in maintaining it; and the act authorizing the fund to be created, in this instance, has not done that. It has simply provided that certain specified debts shall be paid, and authorized a fund to be created by a sale of bonds to an amount not exceeding $8,500,000 for their payment.

The object of the law, very plainly, was to provide the means for paying certain debts, specially described; and, in addition to that, to pay from the fund all moneys advanced by banks, insurance and trust companies prior to the 31st of December, 1871, to or for the use of any of the departments or commissions of the city or county of New York;” and to provide for such payments, it was provided that bonds should be issued and sold. But before that can be intelligently done, the debts themselves must be known; for no greater fund was authorized than should b'e required for their payment, and that can only be ascertained when the debts themselves have been established. As fast as that may be done, the fund can consistently and properly be created, until a sufficient amount has been realized to pay all the debts provided for by the act. But the authorities, to whom the duty of raising the fund has been committed, cannot be required to proceed more rapidly than that; if they did, they might create a fund not required for the uses specified by the law, and that, no authority has been provided for doing. In fact, it would involve an excess of authority beyond that provided ; for, without a debt being due to the relator of the description given in the law, the board can have no right to provide for the issuing of bonds on its account, and the relator, itself, no interest in the act being done. To maintain its proceeding and set the board in motion, the fact must first be made to appear that a debt is owing to the relator, which it may lawfully require to be paid out of the proceeds of the bonds to be sold; and that must be done in the manner provided for the purpose of trying and settling disputed controversies of fact in legal actions.

A conceded claim, audited and allowed by the proper authorities, would be sufficient to entitle the relator to require that the fund for its payment should be raised. But a controverted demand can justify no proceeding of that kind ; and, as the validity of the relator’s demand has been denied, the issue existing concerning it, must first be settled in its favor before it can insist that measures shall be taken to provide means for its payment.

The application made in this case was for a peremptory writ of mandamus, directing the bonds to be issued for the purpose of raising those means; but as no debt appeared to exist, to be paid by them, the application could not properly be allowed to succeed. To warrant its success the debt should have previously been established. That could not be done in the hearing and determination of the motion made, for the law lias prescribed an entirely different course for the settlement of disputed matters of fact, in proceedings by way of mandamus; and that is, by forming what are denominated issues of fact, and trying the same by jury, in all cases where the existence of a long account may not require the case to be referred. That mode of proceeding has been declared by statute; and since then, it has been sanctioned by a constitutional provision,

A controversy of that character appeared, concerning the relator’s demand, from the papers produced upon the hearing of the application ; for, although the affidavits produced in its own behalf, tended decidedly to show the existence of a debt the statute provided should be paid out of the proceeds of the bonds, they were as positively denied by those on which the motion was resisted Norton positively stated that the moneys, claimed to have been advanced by the relator to the court-house commissioners, were advanced to Ingersol, and not to them, and that he was never authorized to borrow the money on their account or for their use. He stated further, that Palmer, the president of the bank, informed him that the advances were to Ingersol, and be wished the certificate, which they finally signed, as an acknowledgment that they were made to the commissioners. Taintor, who swears that he endeavored to discover, by an investigation, whether the relator’s claim was just, states that he was frustrated in his efforts to do so by the relator’s officers, so far as the examination of the books of the bank were required for the purpose. He was in the finance department, and directed to examine the facts upon which the relator founded its claim; and, after doing so as far as he was permitted to, he reached the conclusion, positively asserted in the affidavit made by him, and that was, as he expressed it, That the sums set forth in the affidavit of Mr. Palmer, the president of the bank, alleged to have been advanced to the county, or to the courthouse commissioners, were not advanced or paid by said bank to said county, or to said court-house commissioners, but were paid to said Ingersol, a director of said bank, at the request or on the instigation of himself and his codirectors, Connolly, Tweed and others, well knowing that the same were not to be used for the completion of said court-house; and there is not now, nor has there at any time, been justly due and owing to said bank, by said county, on account of said alleged advances, the sum of $256,415.58, or any part thereof.”

In addition to that, the comptroller swore that he had made an investigation concerning certain claims, and, “ from the examination, so made, I was satisfied that no valid claim exists on the part of the relator against the county.”

The persons making these affidavits may, in • the end, prove to be mistaken in their conclusions and statements concerning thfe. claim made by the relator; but if they are, that cannot be lawfully determined in this proceeding. For that investigation another mode has been prescribed, which this court is not at liberty to disregard. The papers produced upon the hearing, were evidently prepared under the conviction that the success of the application depended upon the relator’s ability to establish the fact that a debt was due to it, of the description which the act provided should be paid. That it has failed to do, for, by the affidavits controverting it, the existence of it is the plain subject of a well founded controversy. That must be judicially settled before it can be consistently concluded that the relator has such a demand as will entitle it to have bonds ordered to be issued and sold for the purpose of providing a fund for its payment. It has not been done, and it cannot be done upon the affidavits and papers before this court.

The order appealed from should be reversed with ten dollars costs, besides disbursements; and an order should be entered, denying the motion made for a writ of mandamus, with ten dollars costs of opposing it.

■ Davis, P. J., concurred.

Ordered accordingly.

      Vol. 1, Laws of 1871, 28, 29, § 2.

      3 R. S. (5th ed.), 898, § 16.

       Art. 1, § 3, Const. 1846; see, also, cases cited in People v. Green, decided at this term. [See Post, p. 308.—Rep.]


author: Lawrence, J.:

text:
    PEOPLE ex rel. THE COMMISSIONERS OF PUBLIC CHARITIES AND CORRECTIONS, on the complaint of SUSANNA SANDERS, Respondent, v. JOHN J. SANDERS, Appellant.

      Certiorari—Disorderly person—Eoidence—•cannot he objected to on appeal when no exception was taken to its admission.

    Upon a common-law certiorari it is the duty of the court to examine the evidence, to ascertain whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether, in making it, any rule of law affecting the rights of the parties has been violated.

      People v. Smith (45 ST. Y., 776) followed.
    The appellate court will not, however, review a decision of a mere question of fact, upon the weight of evidence.

      Upon the trial of the relator, on the charge of being a disorderly person, his wife was examined as a witness against him. Upon certiorari to review his conviction, the relator insisted that she was not a competent witness. Held, that as no objection was made at the trial to the admission of the evidence, the relator could not now raise any question as to its competency
    Certiorari to the Court of Special Sessions, to review the .proceedings of that court on appeal from an order made by one of the police justices of the city of New York, adjudging the appellant, John J. Sanders, to be a disorderly person, in having abandoned his family, and directing that he pay, or cause to be paid, to the commissioners of charities and corrections, six dollars weekly, for the support of his family.

      J. H. Whitélegge, for the appellant.

      H. M. Buggies, for the respondent.
   Lawrence, J.:

The appellant, having been convicted before Police Justice Bixby of having abandoned his wife and family, was adjudged by the justice to be a disorderly person, and was ordered to pay to the commissioners of charities and corrections the sum of six dollars weekly, for and toward the support of his family, during the period of one year, etc. Thereupon the appellant gave the bond provided for by section 24 of part 1, title 6, chapter 20 of the Revised Statutes, and appealed to the Court of Special Sessions. That court, having heard the allegations and proofs, affirmed the order and judgment of the justice, and the case now comes before this court upon a writ of certiorari. The certiorari is a common-law certiorari. It was formerly held, that, upon such a writ, the court could not go beyond the question, whether the inferior tribunal had jurisdiction over the parties and subject-matter. Recent cases have overthrown this doctrine, and the rule now existing, is laid down by Justice Grover, in the case of the People v. Smith, in which he says: It must now be regarded as settled, in this State, that it is the duty of the court * * * to examine the evidence whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether, in making it, any rule of law affecting the rights of the jparties has been violated.”

A variety of Objections were urged by the appellant’s counsel against the legality of the conviction, on the argument before this court.

I. It appeared that the parties had formerly resided at Bricks-burgh, in the State of New Jersey, and that, in December, 1872, the complainant, Susanna, had made a complaint against the defendant, for cruelly beating her and threatening to kill her, and for inflicting bodily injury upon her, and that an examination was had before a justice of the peace, in New Jersey, on the said complaint, which resulted in the discharge of the defendant.

It is claimed, on the part of the appellant, that it was on this occasion that his wife left him, and that the present charge is for the same conduct as was the subject of investigation before the justice in New Jersey, and that, therefore, the defendant has been twice put in jeopardy for the same offense. The point need only be stated, to show that the two charges are not for the same offense, and that the judgment, rendered by the justice of the peace in New Jersey, could have no bearing upon the question before the police justice and the Court of Special Sessions.

II. As to the point, that the police justice before whom the charge was originally heard, was disqualified to sit as a member of the Court of Special Sessions which heard the appeal, it is sufficient to say, that the record shows that the Court of Special Sessions was composed of Justices Led with, McQuade and Hohah.

III. The complaint before the police justice was made by the wife, Susanna Sanders, and she was examined as d witness at the hearing before the justice, and also on the trial on appeal before the Special Sessions. It is objected that she could not legally be a-witness against the defendant on these proceedings. The point, however, cannot be maintained upon this appeal, for the reason that, although the defendant appeared by counsel, no objection was taken to the competency of the wife as a witness, and there is no exception which enables the appellant to discuss the question. In Quin v. Lloyd, a party was permitted to testify, without objection, to transactions between himself and a deceased person, in an action between him and the personal representatives of the deceased. The other party then moved to strike out the testimony, and the referee, before whom the cause was tried, having granted the motion, the Court of Appeals held that the referee erred.

Judge Woodruff says, in that case: A party against whom a witness is called and examined, cannot lie by and speculate on the chances; first learn what the witness testifies, and then, when he finds the testimony unsatisfactory, object either to the competency of the witness, or to the form or substance of the testimony.” Without intending, therefore, to express any opinion as to the wife’s competency as a witness in these proceedings, it is entirely clear that the appellant, having failed to object to her as a witness at the trial, cannot raise the question on this appeal.

IT. There certainly was evidence before the court below, which strongly tended to show that the appellant had abandoned his wife and family, and which is sufficient to support the judgment. The rule is, that upon a certiorari the appellate court will not review a decision of a mere question of fact, upon the weight of evidenee. T. There were some other questions discussed by the appellant’s counsel' on the argument, which I have examined, but which do not seem to me to affect the validity of the conviction and order, and I am therefore in favor of affirming the judgment appealed from, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.

       2 R. S., 911 (5th ed.), and see Laws 1860, page 1008.

       45 N. Y., 776.

       See also People v. Board Police, 39 N. Y., 506; People v. Assessors of Albany, 40 id., 154; Mullins v. People, 24 id., 404.

       Ingersoll v. Bostwick, 22 N. Y., 425.

       41 id., 349.

         People v. Board of Police, 39 N. Y., 512, per Woodruff, J.


text:
    In the Matter of the Final Accounting of JAMES GILL, General Guardian of CATHARINE McGLOWAN.

      General guardian—final aecmnttng — when vouchers required—settlement with ward.

    Where a guardian is compelled to account, the same rule is applicable to him as to an executor or administrator. No payments, exceeding in amount twenty dollars, should be allowed, except upon the production of the proper vouchers. The appellant was appointed general guardian of Catharine McGlowan, who died in 1872, being at the time of her death twenty-two years of age. After she came of age, the accounts of the guardian were shown to and examined by her, and she then admitted their correctness and expressed an intention of giving a receipt to him. Subsequently she called at his store but did not find him. Held, that there was not a consummated settlement between the wárd and the appellant, nor such an expression of satisfaction with his accounts as to preclude her administrator from challenging them.
    Appeal from an order of the surrogate of the county of New York, made on the final accounting of the appellant, James Gill, as guardian of Catharine McGlowan.

      W. A. Beach, for the appellant.

      John M. Robertson, for the respondent.
   Lawrence, J.:

The appellant was appointed general guardian of Catharine McGlowan, in the early part of the year 1868. Catharine McGlowan died in February, 1872; and at the time of her death was, or claimed to be, twenty-two years of age, or thereabouts. The account of the guardian was referred by the surrogate of New York to an auditor, who rejected and refused to allow certain items of expenditure, in the account contained, which exceeded twenty dollars in amount, the same not being embraced in the vouchers presented by the guardian, appellant. On this appeal it has been urged that the rejection of the aforesaid items by the auditor was error. I do not think so. The Revised Statutes provide that a guardian can be compelled to account in the same manner as an administrator. By 2 Revised Statutes, it is provided that on the settlement of an account of an executor or administrator, he may be allowed any item of expenditure, not exceeding twenty dollars, for which no voucher is produced, if such item be supported by his own oath positively to the fact of payment, specifying when and to whom such payment was made, and if such oath be uncontradicted, but such allowances shall not in the whole exceed $500 for payments in behalf of any one estate.

The preceding section requires vouchers to be produced by the executor or administrator, for all debts and legacies paid, etc. The account of an executor or administrator, and of a guardian, stand by statute on the same footing, and I see no reason for holding that the limitation as to payments, for which no vouchers are produced, does not apply to the account of a guardian, as well as to the account of an administrator. There was evidence before the auditor, which showed that after coming of age, and within a few days before she died, the accounts of the guardian were shown to the ward, and were examined by her, and that she admitted their correctness, and expressed an intention to call and give a receipt to her guardian. It also appeared that she did afterward call at the store of the appellant, but did not find him there, and that she died shortly thereafter. The auditor correctly held that there was not a consummated settlement between the ward and the appellant, and I am of the opinion that the evidence does not show such an expression of satisfaction with the appellant’s account, on the ward’s part, after coming of age, as to preclude her administrator from challenging the account. There were some objections to the auditor’s report, taken by the respondent’s counsel, which do not seem to me to be well founded.

Substantial justice has, I think, been done to the administrator of the deceased. I am for affirming the order of the surrogate, with costs.

Davis, JP. J., and Daniels, J., concurred.

Order affirmed, with costs.

      2 R. S., p. 158.

       P. 93, § 55.

         Section 54.


text:
    ANNA K. GILMAN, Appellant, v. GEORGE F. GILMAN, CHARLES B. GILMAN, ISAAC REDDINGTON and CHAS. E. WHITEHEAD, Respondents.

      Surrogate's decree — appeal from — Compromise—when not sustained by court.

    Upon an appeal from an order of a surrogate, the whole case is to be examined by the appellate court, as well upon the facts as upon the law, so far as those questions are presented by the appeal.
    Where, in pursuance of a compromise entered into between the widow and executors of a ■ person deceased, an order was made, directing that a certain sum be paid over to the widow in full satisfaction of her claim and of the fees of her counsel; held, that, as the fees of the counsel had not been inquired into, or in any manner ascertained prior to the making of the order, and there was nothing to show what they amounted to, the order should be reversed.
    Appeal from an. order of the surrogate of the county of New York, directing that the Union Trust Company, out of the money or assets of this estate, on deposit with it, return to Charles B. Gilman, George F. Gilman and Isaac Eeddington, three of the four executors of the estate of Nathaniel Gilman, deceased, or to their counsel, Charles E. Whitehead and Henry E. Knox, the sum of $50,000 and interest thereto from March 22, 1872, to he paid over by them, in settlement of the widow’s claim and the fees of her counsel. The appeal is taken by Anna K. Gilman, an executrix of the will of the said Nathaniel Gilman, deceased.

      W. W. Gage and E.G. Benedict, for the appellant.

      John E. Ward, for Chas. B. Gilman, respondent.

      Ohas. 0. Jones, Jr., for Joanna B. Gilman, respondent.

      Ohas. E. Whitehead, in person.
   Lawrence, J.:

It appears from the petition of the appellant, Anna K. Gilman, that she is a legatee, heir at law, and executrix of Nathaniel Gil-man, deceased, and that the order appealed from, was made and entered upon the petition of George F. Gilman, Chas. B. Gilman and Isaac Reddington, three of the respondents. The petition of these respondents, on which the surrogate’s order was based, alleges in substance that Nathaniel Gilman died in the year 1859, leaving a last will and testament, which was duly admitted to probate by the surrogate of the county of New York. That the testator was a resident of the State of Maine, and died there, in the year 1859, and that his will was offered for probate by the appellant. That the probate was contested by George F. Gilman, one of the executors and one of the petitioners for the order appealed from, and that after a long contest, involving an appeal in the courts of Maine, the will was finally admitted to probate, and a decree was made that the widow, Joanna B. Gilman, should receive $85,000, in lieu of the provisions of. the will in her favor. That after said decree, the petitioner, Charles B. Gilman and the appellant, Anna K. Gilman, who had alone qualified in Maine as executor and executrix of said will, made payments of various sums of money on account of said judgment, and transfers of assets, belonging to said estate, in part payment of said judgment or decree. That after the decision in Maine in her favor, the said widow, Joanna, commenced an action in the Supreme Court of this State against the said George F. Gilman, Isaac Reddington and one Edward McClelland, who then was also an executor of said estate, on said judgment and decree of the Supreme Court of Maine, for the purpose of enforcing the collection of the sums of money adjudged to her by the decree, and that said Joanna also commenced an action against George F. Gilman, in the Circuit Court of the United States, to recover the amount of a promissory note, given by him to the deceased in his lifetime, and belonging to the estate, in which suit she insisted that the said note had been assigned to her by- said Anna K. Gilman and Charles B. Gilman, in part payment of said decree. The petition then goes on to allege that the said two actions are now pending and undetermined, and that after their commencement, certain of the heirs and legatees of the deceased commenced an action in this court for the purpose of restraining the said widow from the prosecution of said actions. That an injunction was obtained in said action, and that the action was brought to trial before Justice Barnard, but that, before final judgment thereon, said justice was removed from his office. It is then alleged that negotiations have been going on between the parties, for a settlement of all the matters in difference, and that such negotiations have resulted in an agreement between all the parties interested, except the appellant, Anna K. Gilman, by which it had been agreed, that, in addition to what had been already paid to the said Joanna, to wit, about $20,000, there should be paid to her the sum of $40,000 and interest, and her costs and counsel fees, in full settlement and compromise of her claim. It is then averred that there is danger that the suit which had been commenced to restrain the widow from proceeding in the action brought by her against the estate, would be discontinued by the plaintiff therein, and that the widow would recover the entire sum decreed by the court in Maine. That the widow is willing, if payment can be made in thirty days from date, to receive the sum of $40,000 and interest, and costs of her counsel and interest, in full settlement of her claim, and that the petitioning executors have no means, aside from the funds in the Trust Company, with which to carry the compromise into effect. The agreement is set forth at length in the appeal papers. It was entered into during the absence of Anna K. Gilman in Europe, and in pursuance of an understanding with said Anna, as the respondents allege. The appellant, on her return, gave a qualified consent to the settlement with the widow, and to the order proposed, but objected to all the money coming out of the Trust Company, and claiming in her consent that the note of George F. Gilman, theretofore assigned to the widow, should be taken by her as part of such payment. This was dated and filed, April 13, 1873, the date of the entry of the order. The answer of the widow alleges that she has received the $50,000 ordered to be paid to her, and that she has discontinued the suit in the Circuit Court of the United States against George F. Gilman upon his note, and has assigned to the executors of the estate the judgment recovered in the courts -in Maine upon said note, and has no title thereto. This seems to be the first intimation in the case that the widow had obtained judgment upon the note, but it appears that the widow had taken an assignment of the note, in part payment of her claim under the judgment or decree rendered in the court in Maine.

In cases of this character, the whole case is to be examined by the appellate court, as well upon the facts as upon the law, so far as those questions are presented by the appeal.

Bearing this principle in mind, I am satisfied that the order of the surrogate was erroneous, and should be reversed. It is quite apparent that several thousand dollars of the amount directed by the order to be paid to the widow, consisted of fees of counsel, which do not seem to have been inquired into or ascertained, in any definite manner, prior to the order of the surrogate. It is alleged in the petition, that the widow will receive $40,000 and interest, and her counsel costs and interest, but what those costs are, is nowhere stated, except that George B. Gilman, in his answer to the petition of appeal, alleges that the sum of $10,000 had been agreed to by appellant, as a proper and reasonable counsel fee to be paid to Messrs. Ward, Jones and Whitehead, for professional services rendered by them to the said Joanna B. Gilman (the widow), and Charles B. Gilman and Anna K. Gilman (executors). So far as the counsel fees of the executors above named were concerned, there was no authority for allowing them.

The counsel fees of the widow might be paid as a part of the compromise between her and the executors, but there is nothing, so far as I can understand from the case, which shows what those fees amounted to.

I think, too, that, as the widow had once definitely received and accepted the note of George B. Gilman, in part payment of her claim against the estate, and, as appears by her answer, had prosecuted the same to judgment, in the courts in Maine, she should have been compelled to allow the amount of that note on judgment, as so much cash in making up the $40,000, cash, agreed to be taken by her upon the compromise.

Mr. Whitehead, having been authorized to receive the money under the surrogate’s order, seems to have been properly made a party on this appeal.

I am in favor, therefore, of reversing the order appealed from,

with costs, and remitting the proceedings to the Surrogate’s Court, for such other action as the parties may be advised.

Davts, P. J., and Daniels, J., concurred.

Ordered accordingly.

       Robinson v. Raynor, 28 N. Y., 494; Schenck v. Dart, 22 id., 420; Clapp v. Fullerton, 34 id., 195, 196; Cunjolle v. Ferrié, 23 id., 90.

       Wilcox v. Smith, 26 Barb., 330.