author: Davis, P. «J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent. THE SAME v. NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent.

      Mandamus — motion to quash, should not be entertained until after the writ has been issued — Who entitled to open the (M'gument upon the hearing of a motion — when error in deciding the question is not renewable at the General Term —Power of the State to compel a railroad corporation to discharge its duties by mandamus — A simple dispute between the company and its employes, as to the wages to be paid to the latter, does not excuse a failure by the company to discha/rge its duties to the public — as to the'effect of an illegal combination of the employes — Form of the writ to be issued.

    Upon the return of an order requiring a railroad company to show cause why a peremptory writ of mandamus should not issue, commanding it to forthwith resume the discharge of its duties as a common carrier, it appeared by counsel; objected that the moving papers failed to show any grounds for the relief prayed for, and moved to quash and dismiss the petition and order to show cause. The court entertained the motion and, against the petitioners’ objection, allowed the company’s counsel to open and close the argument. It subsequently sustained the objection and granted the motion to quash.

      Held, that the practice of the court in entertaining the motion to quash before any writ had been issued, and in allowing the company to open and close the argument, was irregular and should not be countenanced.
    Although 'when a trial is had before a jury an error in awarding the right to open or close the case is fatal to the judgment, yet upon an appeal from an order made at a Special Term the court will only inquire as to the correctness of the order granting or denying the motion.
    In an action brought by the people, by their attorney-general, a railroad corporation may be compelled by mandamus to exercise its duties as a carrier of freight and passengers.
    The power to so compel it to act rests upon the ground:
    1st. That the duty is a public trust, which, having been conferred by the State and accepted by the corporation, may be enforced for the public benefit. ’
    2d. Upon the contract between the corporation and the State, expressed in its chai'ter or implied by the acceptance of the franchise.
    3d. Upon the ground that the common right of all the people to travel and carry upon every pu.blic highway of the State has been changed in this special instance by the legislature, for adequate reasons, into a corporate franchise, to oe exercised solely by a corporate body, for the public benefit, to the exclusion of all other persons; whereby it has become the duty of the State to see to it that the franchise so put in trust be faithfully administered by the trustee.

      Where such a corporation fails to use, or misuses, the public trust and function vested in it by the State, it rests in the sound discretion of the attorney-general to decide whether to apply for a mandamus or to have the charter of the corporation annulled.
    The application for a mandamus cannot be defeated by showing that the State has not been injured by the refusal of the company to act, and that the individuals who have been injured have private remedies wherewith to recover the damages sustained
    The provisions contained in section 28 of chapter 140 of 1850, as amended by chapter 133 of 1880, which authorized railroad companies “ to regulate the time and manner in which passengers and property shall be transported,” although conferring a certain discretion upon the company, do not justify a general or partial suspension of the duty of receiving and transporting freight.
    The petition and affidavits presented to the court, upon an application for a mandamus, showed that, for about two weeks, the company had substantially refused to discharge its duties as a common carrier, and had, to a material degree, suspended the exercise of its franchises by refusing to take freight which had been offered to it at its stations in New York for transportation at the usual rates and upon the usual terms, whereby the people of the State of New York, and the trade and commerce of the city of New York, and many individuals therein, were greatly damaged and injured.
    The only excuse alleged for the non-performance of its duties by the company was, in effect, that its skilled freight handlers, who had been working at the rate of seventeen cents per hour (or one dollar and seventy cents for ten hours), refused to work unless twenty cents per hour (or two dollars per day, of ten hours) was paid. It was not alleged that the workmen committed any unlawful act; and no violence, riot or unlawful interference with the other employes of the respondent was shown.

      Held,, that the excuse was insufficient, and that a mandamus should have been issued.

      It seems, that if it had been shown that a “ strike ” of their skilled laborers had been caused or compelled by some illegal combination or organized body, which held unlawful control of their actions, and sought through them to enforce its will upon the respondent, and that the respondent in resisting such unlawful efforts had refused to obey unjust and illegal dictation; and had used all the means in its power to employ other men in sufficient numbers to do the work; and that the refusal and neglect complained of had grown out of such a state of facts, a very different case for the exercise of the discretion of the court, as well as of the attorney-general, would have been presented. (Per Davis, P. J.)
    Where a peremptory writ is issued in such a case, it should require the company to exercise its franchises, and to receive and transport freight upon such terms as are reasonable and usual, and to perform its duties as a common carrier.
    Appeals from orders of tbe Special Term, granting motions to quash and dismiss the petitions and orders to show cause of the appellants, and denying the application of the appellants for peremptory writs of mandamus.

    TJpon the facts set forth in the petition and accompanying affidavits, an order was made in each of the above entitled proceedings requiring the respondent to show cause “ why a peremptory writ of mandamus to compel the said corporation to exercise its franchises, and to receive and transport freight upon such terms as are reasonable and usual, and to perform its duties as a common carrier ” should not issue in each case. ■

      Leslie W. Russell, attorney-general, and E. C. James, Simon Sterne and Daniel G. Thompson, for the appellants.

      W. D. Shipman and Rosooe Gonkling, for the respondents.
   Davis, P. «J.:

The appellants, upon the petition of their attorney-general, and ' affidavits accompanying the same, obtained orders from one of the justices of this court requiring the respondents,' respectively, to show cause, upon service of less than eight days, at a Special Term sitting at chambers, why a peremptory writ of mandamus should not issue, commanding the respondents, respectively, to forthwith resume the discharge of their duties as common carriers, and the exercise of their franchise, by promptly receiving, transporting and delivering all such freight or other property as might be offered to or had been heretofore received by them for transportation at their stations, in and to the city of New Yoi’h, upon the usual and reasonable terms and charges.

Upon an adjourned day for the hearing of the motions, the respondents appeared by counsel and objected that the moving papers failed to show any grounds for the relief prayed for; and moved to quash and dismiss said petitions and orders to show cause.” The court entertained this motion, and, against the objection of the appellants, awarded the right to open and close the argument on the hearing to the counsel for the respondents; and after hearing the respective counsel, the court in each case ordered as follows : “ That the said preliminary objection be and the same is hereby sustained, and that the motion to quash the said petition and order to show cause be and the same is hereby granted, and the said application of the said petitioner denied.”

It is now objected that this mode of disposing of the motions was so far irregular as to render the orders erroneous.

It certainly was an unusual mode of proceeding. The motions came to the Special Term precisely as though upon an ordinary notice. The order of the judge simply limited the time of notice; and when the respondents appeared in answer to the notice, if they were willing to come to a hearing upon the petition and affidavits, the usual and proper course was to proceed to a hearing of the motions upon those papers, the moving party holding the affirmative and being entitled to the right to open and close. A motion to quash a motion is a novel proceeding. Motions to quash usually apply to existing writs or piocess, and not to mere attempts to obtain them. The court doubtless regarded the action of the respondents’ counsel as in the nature of a demurrer ore terms to the petition and affidavits on the part of the appellants. Where an alternative writ has been granted, the defendant may move to quash or set the same aside. (The People ex rel. Knapp v. The Judges, etc., of Westchester, 4 Cow., 73.) And such a motion is in the'nature of a demurrer (The People ex rel. Barnet v. College of Physicians and Surgeons, 7 How. Pr., 290) and should be made before the return to the writ, unless the motion to quash is based upon a-defect in substance, in which case it may be taken advantage of at any time before a peremptory mandamus is awarded. (Commercial Bank v. Canal Commissioners, 10 Wend., 31; The People v. Ransom, 2 N. Y., 492.) Of course, upon such a motion, the moving party holds the affirmative, but that was not this case. In this case, no alternative writ having been issued, there was nothing to quash, and the objection made was simply an assertion that the appellants were not, upon their own showing, entitled to have the motion granted, and such assertion did not change the rights of the respective parties as to the order of proceeding on the hearing. The Court of Appeals have held that the according of the affirmative to the wrong party on a trial before a jury is an error fatal to the judgment. But on motions at Special Term, it is not very material which party opens or closes, and this court on review will only inquire into the correctness of the decisions where the order denies or grants the motion. In this case, although the order directs that the petition and proceedings be quashed, yet the motion for the mandamus was also denied, and both the denial and the order to quash were based upon the merits of the motion. The right of appeal was not affected, and we think it is our duty to hear and dispose of the appeal upon the merits. The practice at the Special Term should, however, be discountenanced as a precedent.

The question presented by the motion is one of signal importance. It is whether _ the people of the State can invoke the power of the courts to compel the exercise by railroad corporations of the most useful public functions with which they are clothed. If the people have that right, there can be no doubt that their attorney-general is the proper officer to set it in effective operation on their behalf. (1 R. S., 179, § 1; Code of Civ. Proc., § 1993; People v. Halsey, 37 N. Y., 344; People v. Collins, 19 Wend., 56.)

The question involves a consideration of the nature of this class of corporations, the objects for which they are created, the powers conferred and the duties imposed upon them by the laws of their creation, and of the State. As bodies corporate, their ownership may be and usually is altogether private, belonging wholly to the holders of their capital stock; and their management may be vested in such officers or agents as the stockholders and directors under.the provisions of law, may appoint. In this sense they are to be regarded as trading or private corporations, having in view the profit or advantages of the corporators. But these conditions are in no just sense in conflict with their obligations and duties to the public. The objects of their creation are from their very nature, largely different from those of ordinary private and trading corporations. Railroads are, in every essential quality, public highways, created for public use, but permitted to be owned, controlled and managed by private persons. But for this quality the railroads of the respondents could not lawfully exist. Their construction depended upon the exercise of the right 'of eminent domain, which belongs to the State in its corporate capacity alone, and cannot be conferred, except upon a “ public use.” The State has no power to grant the right of eminent domain to any corporation or person for other than a public use. Every attempt to go beyond that is void by the constitution; and although the legislature may determine what is a necessary public use, it cannot by any sort of enactment divest of that character any portion of the right of eminent domain which it may confer. This characteristic of public use is in no sense lost or diminished by the fact that the use of the railroad by the corporation which constructs or owns it, must, from its nature be exclusive. That incident grows out of the method of use which does not admit of any enjoyment in common by the public. The general and popular use of a railroad as a highway is therefore handed over exclusively to corporate management and control because that is for the best and manifest advantage of the public. The progress of science and skill has shown that highways may be created for public use, of such form and kind that the best and most advantageous enjoyment by the people can only be secured through the ownership, management and control of corporate bodies created for that purpose, and the people of the State are not restricted from availing themselves of the best modes for the carriage of their persons and property. There is nothing in the Constitution hostile to the adoption and use by the State of any and every newly developed form or kind of travel and traffic, which have a public use for their end and aim, and giving to them vital activity by the use of the power of eminent domain.

When the earliest Constitution, of our State was adopted, railroads were unknown. The public highways of the State were its turnpikes, ordinary roads and navigable waters. The exercise of eminent domain in respect of them, was permitted by the Constitution for the same reasons that adapt it now to the greatly improved methods of travel and transportation; and in making this adaptation, there is no enlarged sense given to the language of the Constitution, so long as its inherent purpose — the creation only of public uses — be faithfully observed.

These principles are abundantly sustained by authority. In Bloodgood v. The Mohawk and Hudson River Railroad Company (18 Wend., 9), the court of last resort in this State first announced them, and affixed to railroads their true character as public highways. It is there declared that the fact that railroad corporations may remunerate themselves by tolls and fares, “ does not destroy the public nature of the road, or convert it from a public to a private use. * * % If it is a public franchise and granted to the company for the purpose of providing a mode of public conveyance, the company, in accepting it, engages, on its part, to use it in such manner as will accomplish the object for which the legislature designed it.” (Pages 21,22.) And in Olcott v. The Supervisors (16 Wall, 678, on p. 694), the Supreme Court of the IJnited States adjudge: “ that railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of ne'arly all the courts ever since such conveniences for passage and transportation have had any existence. Yery early the question arose whether a State’s right of eminent domain could be exercised by a private corporation created for the purpose, of constructing a railroad. Clearly it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies talcing property for private use. Yet it is a doctrine universally accepted, that a State legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean, if not that building a railroad, though it be built by a private corporation, is an act done for a public use? And the reason why the use has always been held a public one is that such a road is a highway, whether made by the government itself, or by the agency of corporate bodies, or even by individuals, when they obtain their power^to construct it from legislative grant. * * * Whether the use of a railroad is a public or a private one, depends in no measure upon the. question who constructed it or who owns it. It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is the agent, the function performed is that of the State. Though the ownership is private, the use is public. * * * The owners may be private companies, but they a/re compellable to permit the public to use their works in the manner m which such works cam, be xised. That all persons may not put their own cars upon the road, and use their own motive povver, has no bearing upon the question whether the road is a public highway. It bears only upon the mode of use, of which the legislature is the exclusive judge.”

All public highways are subjects of general State jurisdiction, because their uses are the common property of the public. This principle of the common law is in this State of universal application. As to the class of public highways known as railroads, the common law is fortified by the express conditions of the statutes creating or regulating or controlling them.

The general railroad act of this State may now be regarded as the general charter of all such corporations. It authorizes the organization of corporations for “ the constructing, maintaining and operating” of railroads “for public use,” and it imposes upon them the duty “ to furnish accommodations for all passengers and property, and to transport all persons and property on payment of fare or freight.” (Laws of 1850, chap. 140, §§ 1, 36.) These words are a brief summary in respect of the duties imposed upon such corporations by all the provisions of the act. Those duties are consigned to them as public trusts, and as was said in Messenger v. The Pennsylvania Railroad Company (36 N J., 407), “although in the hands of a private corporation, they are still sovereign franchises, and must be used and treated as such; they must be held in trust for the general good.” This relation of such a corporation to the State is forcibly expressed by Emmons, J., in Talcott v. Township of Pine Grove (1 Elippin IT. S. Circuit Ct. Rep., 144): “ The .road once constructed is, instanter, and by mere force of the grant and law, embodied in the governmental agencies of the State and dedicated to public use. ’ All and singular its cars, engines, rights of way and property of every description, real, personal and mixed, are but a trust fund for the political power, like the functions of a public office. The judicial personage — the corporation created by the sovereign power expressly for this sole purpose and no other — is, in the most strict technical and unqualified sense, but its trustee. This is the primary and sole legal*political motive for its creation. The incidental interest and profits of individuals are accidents, both in theory and practice.”

The acceptance of such trusts on the part of a corporation, by the express and implied contracts already referred to, makes it an agency of the State to perform public functions which might otherwise be devolved upon public officers. The maintenance and control of most other classes of public highways are so devolved, and the performance of every official duty in respect of them may be compelled by the courts, on application of the State, while private damages may also be recoverable for individual injuries. The analogy between such officials and railroad corporations in regard to their relations to the State, is strong and clear, and so far as affects the construction and proper and efficient maintenance of their railways will be questioned by no one. It is equally clear, we think, in regard to their duty as carriers of persons and property. This springs sharply out of the exclusive nature of their right to do those things. On other public highways every person may be. his own carrier; or he may hire whomsoever he will to do that service. Between him and such employe a special and personal relation exists, independent of any public duty, and in which the State has no interest. In such a case, the carrier has not contracted with'the State to assume the duty as a public trust, nor taken the right and power to do it from the State by becoming the special donee and depositary of a trust. A good reason may, therefore, be assigned why the State will not by mandamus enforce the performance of his contract by such a carrier. But the reason for such a rule altogether fails when the public highway is the exclusive property of a body corporate, which alone has power to use it, in a manner which of necessity requires that all management, control and user for the purposes of carriage must be limited to itself, and which, as a condition of the franchise that grants such absolute and exclusive power over and user of a public highway, has contracted with the State to accept the duty of carrying all persons and property within the scope of its charter, as a public trust. The relation of the Stafe to such a body is entirely different from that which it bears to the individual users of a common highway, as between whom and the State no relation of trust exists; and there is small reason for seeking analogies between them. It is the duty of .the State to make and maintain public highways. That duty it performs by a scheme of laws, which set in operation the functions of its political divisions into counties, towns and other municipalities, and their officers. It can and does enforce those duties whenever necessary through its courts. It is not the duty of the State to be or become a common carrier upon its public highways; but it may, in some cases, assume that duty/ and whenever it lawfully does so, the execution of the duty may be enforced against the agents or officers upon whom the law devolves it. It may grant its power to construct a public highway to a corporation or an individual and with that power its right of eminent domain in order to secure the public use; and may make the traffic of the highway common to all on such terms as it may impose. In such case it is its duty to secure that common traffic, when refused, by the authority of its courts. (People v. Collins, 19 Wend., 56; People v. Commissioners of Salem, 1 Cow., 23.) Or it may grant the same powers of construction and maintenance with the exclusive enjoyment of use which the manner of use requires, and if that excludes all common travel and transportation it may impose on the corporation or person, the duty to furnish every requisite facility for carrying passengers and freight, and to carry both in such manner and at such times as public needs may require. Why is that duty, in respect of the power to compel its performance through the courts, not in the category of all others intrusted to such a body? The writ of mandamus has been awarded to compel a company to operate its road as one continuous line (Union Pacific R. R. Co. v. Hall, 91 U. S., 343); to compel the running of passenger trains to the terminus of the road (State v. H. and N. H. Ry. Co., 29 Conn., 538); to compel the company to make fences and cattle guards (People ex rel. Gar-butt v. Rochester State Line R. R. Co., 14 Hun, 373; S. C., 76 N. Y., 291); to compel it to build a bridge (People ex rel. Kimball v. B. and A. R. R. Co., 70 N. Y., 569); to compel it to construct its road across streams, so as not to interfere with navigation (State v. N. E. R. R. Co., 9 Richardson, 247); to compel it to run daily trains (In re New Brunswick, etc., R. R., 1 P. & B., 667); to compel the delivery of grain at a particular elevator (Chicago and Northwestern R. R. Co. v. People, 56 Ill., 365); to compel the completion of its road (Farmers’ Loan and Trust Company v. Henning, 17 Am. Law Reg. [N. S.], 266); to compel the grading of its track so as to make crossings convenient and useful (People ex rel. Green v. D. and a P. Co., 58 N. Y., 152; N. Y. C. and H. R. R. R. Co. v. People, 12 Hun, 195 ; S. C., 74 N. Y., 302 ; Indianapolis R. R. Co. v. The State, 37 Ind., 489; to compel the re-establishment of an abandoned station (State v. R. R., 37 Conn., 154);" to compel the replacement of a track taken up in violation of its charter (Rex v. Severn and Wye Ry. Co., 2 Barn. & Ald., 646); to prevent the abandonment of a road once completed (Talcott v. Pine Grove, supra, 1 Flippin, 145); and to compel a company to exercise its franchise. (People v. A. and V. R. R. Co., 24 N. Y., 261.) These are all express or implied obligations arising from the charters of the railroad companies, but not more so than the duty to carry freight and passengers. That duty is, indeed, the ultima ratio of their existence; the great and sole public good for the attainment and accomplishment of which all the other powers and duties are given or imposed. It. is strangely illogical to assert that the State, through the courts, may compel the performance of every step necessary to bring a corporation into a condition of readiness to do the very thing for which it is created, but is then powerless to compel the doing of the thing itself.

We cannot bring our minds to entertain a doubt that a railroad corporation is compellable by mandamus to exercise its duties as a carrier of freight and passengers; and that the power so to compel it rests equally firmly on the ground that that duty is a public trust, which having been conferred by the State and accepted by the corporation may be enforced for the public benefit; and also upon the contract between the corporation and the State, expressed in its charter or implied by the acceptance of the franchise (Abbott v. Johnstown R. R. Co., 80 N. Y., 31); and also upon the ground that the common right of all the people to travel and carry upon every public highway of the State has been changed in the special instance, by the legislature for adequate reasons into a corporate franchise, to be exercised solely by a corporate body for the public benefit, to the exclusion of all other persons, whereby it has become the duty of the State to see to it that the franchise so pnt in trust be faithfully administered by the trustee.

Eut it is said that the State is not injured and has no interest in the question whether the corporation perform the duty or not. The State may suffer no direct pecuniary injury, as it may not by the neglect of one or more of its numerous political officers who hold in trust for the people the official duties reposed in their hands; but that is no test of the power or duty of the State in either case. The sovereignty of the State is injured whenever any public function vested by it in any person, natural or artificial, for the common good is not used or is misused, or is abused; and it is not bound to inquire whether some one or more of its citizens has not thereby received a’ special injury for which he may recover damages in his private suit. Such an injury wounds the sovereignty of the State and thereby, in a legal sense, injures the entire body politic. The State, in such a case as this, has no other adequate remedy. It may j proceed, it is true, to annul the corporation, as has been held in; many cases where corporations had neglected public duties. (People v. Fishkill and B. P. R. Co., 27 Barb., 452, 458; People v. H. and C. Turnpike Co., 23 Wend., 254; Turnpike Co. v. State, 3 Wall., 210; People v. K. and M. Turnpike Co., 23 Wend., 208 ; People v. B. and R. Turnpike Co., Id., 222; Charles River Bridge Co. v. Warren Bridge, 7 Pick., 344.) But that remedy is not adequate, Í for it only destroys functions where, the public interests require! their continued existence and enforcement. It has,'therefore, an election which of these remedies to pursue. (State v. H. and N. H. Railroad Co., 29 Conn., 538; People v. A. and V. Railroad Co., 24 N. Y., 261; Talcott v. Pine Grove, supra)

Undoubtedly a sound discretion is vested in its law officer to decide whether the exigency is such as to call for the use of • either remedy, as it is ultimately for the court to judge whether the elected remedy should be applied. But upon the question of power and of sufficient legal injury to justify its use, where the corporation neglects or refuses to exercise its franchises or perform its duites, there seems to us no reason to doubt.

Nor do we think the fact that injured individuals may have private remedies for the damages they have sustained by neglect of duties, precludes the State from its remedy by mandamus. Where the injury is to a single person under circumstances which do not affect the general public the courts, in the exercise of their discretion, have properly refused this remedy on his relation. The injured party is then the suitor; he has an adequate remedy by private action for damages. That was the case of People ex rel. Ohlen v. Erie Railway Company (22 Hun, 533), relied upon by the court below, in which the court held that the relator’s remedy was by suit for damages and not by mandamus. That case is not authoi’ity for denying the writ to the Attorney-General for a neglect or refusal by corporations to exercise their franchises to an extent which affects a great number of citizens, and continues for a considerable period of time; nor does it deny the right of the people acting on their own behalf and in their own suit to pursue this remedy in any case of neglect or refusal to exercise a public function which the interest-of the people require should be kept in vigorous and efficient use.

The court, in that case, recognizes the distinction, when it says,. an exception exists,” * * * “ where a corporation suspends the exercise of its franchises.” The suspension of the exercise of corporate functions is the gravamen of the complaint in this-case; and the case cited is no authority for denying the writ when the people come into court with their own suit, by their attorneys general to move for a writ of mandamus on allegations of an alleged long continued and very general suspension of a corporate. duty.

It was supposed by the court below that the provisions of section 28-of the act of 1850 (chap. 140) as amended by chapter 133 of the Laws of 1880, which provide that railroad corporations shall have power “ to regulate the time and manner in which passengers and property shall be transported,” interfere in some way with the power1 to grant the writ. Undoubtedly that provision gives the discretion which the learned judge states; but it cannot be so construed as to-justify a .general or partial suspension of the duty of receiving and transporting freight. Language of that kind in a similar act was correctly construed by DiokeRson, J., in the Railroad Commissioners v. Portland and Oxford Railroad Company (63 Me., 269). We adopt, but have not room to quote his language.

Having determined the question of the right of the State to prosecute the writ of mandamus on the ground of refusal or neglect of a corporation to exercise its duty of carrier, it remains-to be seen whether a case which would justify the granting of the writ was presented. The case stands altogether upon the facts presented by the appellants. The coursé taken by the respondents must be regarded as an admission of the material facts contained in the petition and affidavits.

The petition in each case alleges that the said railroad company, since about the 16th day of June, 1882, “ has substantially refused to-discharge its duties as a common carrier, and has, to a material degree, suspended the exercise of its franchises by refusing to take-freight which has been offered at its stations in the city of New York for transportation, at the usual rates and upon -the usual terms; ” and that said railroad company has refused to accept and transport the greater part of the outgoing, and to deliver the incoming freight and property of the merchants doing business in the city of New York, who have relations with and need for the services of such, railway, and has refused to them to furnish adequate transportation for the same, so that from that date the business community of the city of New York are unable to obtain sufficient and adequate transportation for their goods on said railroad, although they have offered the same on the usual terms and rates of transportation; but said railroad has uniformly delayed and sometimes peremptorily refused to receive and deliver freight, and to transport the outgoing freight as aforesaid, and at certain points within the State has declined to receive incoming freight, whereby great loss and damages accrue to the people of the State of New York, for which there is no adequate remedy in damages, and that the trade and commerce of said city is greatly injured by the action of the said railroad.”

These allegations are broad enough to show a quite general and largely injurious refusal and neglect to perform the duties of carrier. The affidavits go far to sustain these allegations; but it is not important to examine them minutely, because the omission of a demurrer ore tenus extends to and admits the well-pleaded averments of the petition. Stated very briefly, the affidavits show that, for about two weeks, the respondents failed and neglected to receive from three-quarters to seven-eighths of the goods offered for transportation from the city, and large quantities seeking transportation to the city ; and in many instances refused to receive goods offered, and turned them back and closed their gates during business hours, thus causing a stoppage of all delivery of freight; that in some instances unusual terms were sought to be imposed as a condition of receiving goods, which would increase the risks of the owner; that the refusal to receive goods did not arise from any unwillingness or inability on the part of the shipper to pay charges, but was wholly the act of respondents; that it was so continuous and extensive that it seriously interfered with the business operations of the ■citizens of New York, deteriorated the value of many commodities, and caused a diversion of trade from the city; that great losses were caused, and especially that large quantities of perishable goods, bj reason of non-delivery, were destroyed, to the value of many thousand dollars ; that a vast amount of freight, equal, as estimated, to 360,000 tons, was thus detained or refused carriage; that large numbers of carmen were detained in their efforts to deliver freight, and the injury to that branch of business is estimated at not less than $50,000, while the aggregate of injuries is estimated at some millions. These are the substantial facts conceded by the respondents at the Special Term. Surely, it cannot be doubted that these facts, being true and unexcused, showed a strong case for the interference of the State.

The only question is, whether the course and conduct of the respondents was so far excused by anything appearing in the petition and affidavits that the court was justified in'denying the motion for the writ on its merits,' or in a wise exercise of its judicial discretion.

The excuse appears only in the statements of the reasons assigned by the respondents for their refusal to accept, transport and deliver the freight and property. In the petition it is stated in these words, “ that the persons in their employ handling such freight refuse to perform their work unless some small advance, said to be three cents per hour, is paid them by the said railroad corporation.” The affidavits show, it may in short be said, that the skilled freight handlers of the respondents, who had been working at the rate of seventeen cents per hour (or one dollar and seventy cents for ten hours), refused to work unless twenty cents per hour, or two dollars per day of ten hours, were paid, and that their abandonment of the work, and the inefficiency of the unskilled men afterwards employed, caused the neglect and refusal complained of.

It is not alleged or shown that the workmen committed any unlawful act, and no violence, no riot and no unlawful interference with other employes of the respondents appear. It is urged in effect that the court should regard the case as one of unlawful duress, caused by some breach of law sufficiently violent to prevent the reception and transportation of freight. There is nothing in the papers to justify- this contention. According to the ‘statements of the case, a. body of laborers, acting in concert, fixed a price for their labor, and refused to work at a less price. The respondents fixed a price for the same labor, and refused to nay more. In doing this neither did an act violative of any law, or subjecting either to any penalty. The respondents had a lawful right to take their ground in respect of the price to be paid, and adhere to it, if they chose; but if the consequence of doing so were an inability to exercise their corporate franchises to the great injury of the public, they cannot be heard to assert that such consequence must be shouldered and borne by an innocént public, who neither directly nor indirectly participated in their causes.

If it had been shown that a “ strike ” of their skilled laborers had been caused or compelled by some illegal combination or •organized body, which held an unlawful control of their actions, and sought through them to enforce its will upon the respondents, .and that the respondents, in resisting such unlawful efforts, had refused to obey unjust and illegal dictation, and'had used all the means in their power to employ other men in sufficient numbers to. •do the work, and that the refusal and neglect complained of had grown out of such a state of facts, a very different case for the •exercise of the discretion of the court, as well as of the attorney-general, would have been presented. Whether such a state of facts •could have been shown or not we cannot judicially know. The present case must stand or fall upon the papers before us; and we are not to be swerved from thus disposing of it by any suggestion of facts ¡not in the case which might lead, if they appeared, to some other result. The most that can be found from the petition and affidavits is that the skilled freight handlers of the respondents refused io work without an increase of wages to the amount of three cents per hour; that the respondents refused to pay such increase; that ■the laborers then abandoned the work, and that the respondents did not procure other laborers competent or sufficient in number to do the work, and so the numerous evils complained of fell upon the public, and were continuous until the people felt called upon to ¡step in and seek to remedy them by- proceedings for mcmctmius.

These facts reduce the question to this :^Can railroad corporations refuse or neglect to perform their public duties upon a controversy with their employes over the cost or expense of doing them ? We think this question admits of but one answer. The excuse has in law no validity. The duties imposed must be discharged at what•ever cost. They cannot be laid down or abandoned or suspended without the legally expressed consent of the State. The trusts are active, potential and imperative and must be executed until lawfully surrendered, otherwise a public highway of great utility is closed or obstructed without any process recognized by law. This is something no public officer charged with the same trusts and duties in regard to other public highways can do without subjecting himself to mandamus or indictment.

"We are not able to_ perceive the difficulties that embarrassed the court below as to the form of a writ of mandamus in such cases. It is true the writ must be specific as to the thing to be done; but the thing to be done in this case was to resume the duties of carriers of the goods and property offered for transportation ; that is, to receive, carry and deliver the same under the existing rules and regulations as the business had been accustomed to be done. There was no necessity to specify what kind of goods should be first received and carried, or whose goods, or indeed to take any notice of the details of the established usages of the companies. It was the people who were invoking the writ on their own behalf and, not for some private suitor, or to redress individual injuries. The prayer of the petition indicated the proper form of the writ. Upon the return to the writ all questions, whether what has been done is a sufficient compliance with its command, may properly arise and become a subject of further consideration. (People ex rel. Green v. D. and C. R. R. Co., 58 N. Y., 152, 160, 161.) They need not have been anticipated. It is suggested that the time has now past when such a writ can be of any valuable effect. This is probably so, but we are governed by the record in disposing of the appeal and not by subsequently occurring events.

The appellants labor now under a judgment alleged to be injurious to the rights they possessed when it was pronounced, and harmful to them as a precedent. If erroneous they are entjtled to have that judgment reversed, and to be indemnified, in the discretion of the court,'for the costs incurred on the appeal made necessary by the error.

We think the court below had power to award the writ, and that upon the case presented it was error to refuse it.

The order should be reversed, with the usual costs, and an order entered, if deemed advisable from any existing circumstances by the attorney-general, awarding the writ.

Daniels and Brady, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements in each case.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    In the Matter of the Probate of the Will of TRUST FELIX GOURAUD, Deceased.

      Wiling allegations, and contesting probate of a will within one yea/r — the statute does not authorize a second contest upon the same issues— the citation must issue upon the allegations so filed, within one year.

    Section 30 of 2 Revised Statutes (p. 61), provides that, “notwithstanding a will of personal propery may have been admitted to probate, any of the next of kin to the testator may, at- any time within one year after such probate, contest the same.” '
    Section 31 provides that the contestant shall file in the office of the surrogate his allegations against the validity of such will; and section 32 directs the surrogate, upon the filing of such allegations, to issue a citation to the executors.

      Held, that the object of such provisions was not to allow the next of kin, on the application for the probate of the will, to file objections and contest it and its probate before the surrogate; and, also, within one year after the decree admitting the will to probate, to file the same objections theretofore taken thereto, and enter upon a new contest on the issues already tried.
    That, where allegations were filed, under the statute, on the day before the expiration of the year succeeding the probate of the will, and no citation was issued, until some three months thereafter, that the contestant was not entitled to the benefit of the statute.
    That the statute requires that the contest to open the probate shall be effectively begun within the year; and not only that the allegations shall bo filed, but that a citation shall be issued thereon within that time.
    Appeal from an order of the surrogate of the county of New York, dismissing ail proceedings to contest .the probate of the last will and testament of Trust Felix Gouraud, deceased, upon allegations filed within one year after its admission to probate.

      Wm. M. Mullen, for Andreas Ii. Gouraud, appellant.

      Wm. H. Waring, for the executors, respondents.
   Davis, P. J.:

The will of the testator was propounded for probate in June, 1877. Citations were thereupon issued, amongst others, to Andreas H. Gouraud, the present appellant. He appeared in answer to the citations and filed objections to the probate of the will, in substance the same as the allegations afterwards filed by him. The contest over said will was continued by a series of hearings before the surrogate, and resulted in a decree of the Surrogate’s Court admitting the will to probate on the 16th of February, 1878. The contestant appealed, in due time, from said decree to this court, where his appeal was pending until dismissed for want of prosecution.

On the 15th of February, 1879, and within one year from the entry of the decree, the appellant filed allegations in the Surrogate’s Court contesting the validity of such will, under part 2, chapter 6, title 1, article 2. of the Revised Statutes, and claiming that the probate of such will should be revoked. The reasons stated in his allegations were -in;, substance the same as the objections filed by appellant on his appearance to contest the will. No citation was taken out on such allegations until the 19th of May, 1880. (A year and three months after the decree admitting the will to probate.) After service of the citation on the executrix of the will a motion was made by her in the Surrogate’s Court for the dismissal of the proceedings on two grounds: First. That the contestant had already litigated the same questions before the Surrogate’s Court. Second. That the proceedings to set aside the probate and • contest the will were not commenced within one year after the will had been admitted to probate.

The learned surrogate granted the motion, as appears by the order on both grounds, but in his opinion he considered only the second ground.

We are of opinion that the disposition made by the learned surrogate was correct on both grounds. Section 30 (2 R. S., 61) provides, that “notwithstanding a will of personal property may have been admitted to probate, any of the next of kin to the testator may, at any time within one year after such probate, contest the same, or the validity of such will, in the manner herein provided.” And subsequent sections provide that the contestant shall file in the office of the surrogate his allegations in writing against the validity of such will, or the competency of the proof thereof, and that upon the filing of such allegations the surrogate shall issue a citation, to tbe executors and other parties in interest, to show cause why the probate should not be revoked; the service of which citation “ suspends all proceedings in relation to the estate of the testator, except the collection and recovery of moneys, the payment of debts, until a decision shall be had upon such allegations.” (2 R. S., 61, 62, §§ 31, 32, 33.) The object of these provisions was to give time and opportunity to the next of kin to contest the will and its probate at any time within the prescribed period of one year after probate. He was not debarred by the service of the original citation, nor by his appearance at the original hearing, nor by his objections to the will upon grounds not affecting its validity or the capacity of the testator. But we are of opinion that it was not intended that the next of kin might appear before the surrogate and contest the will and its probate upon grounds affecting the validity of the will and the capacity of the testator and then aftex- a long continued contest resulting in a decree affix-ming the will and admitting it to probate, might also within one year after the decree, file the same allegations and enter upon a new contest of the issues already tried. A broad constraction would give that force to the strict language of the statutes; but we think they ought to be constraed with a view to the xnanifest intent of the legislature, which was to secure to the next of kin an opportunity fully to contest the will and its pi’obate, and when such contest had not been had to prevent the probate fx-om operating as a bar if proceedings to contest it are taken within one year after a decree.

A construction permitting another contest on the same grounds as those adjudicated upon in the one already had, opens a door to immense embarrassments and difficulties in settling the estates of testators which are altogether unnecessary to protect the rights of contestants. If the law be such that, after a long contested trial over the sanity of a testator, occupying the court for months or years, the contestant is at liberty, within a year after an adverse decree is entered, to refile the same allegations and renew the same controversy, and thereby ipso facto to suspend- the functions of the executor and prevent the settlement of the estate and payment of legacies till the same litigation is repeated, the statute works a great injustice instead of preserving a valuable right.

But on the second ground we concur with the opinion of the learned surrogate.

The new allegations were filed one day within the year after the decree. No citation was taken out till some three months after-wards. The statute intends to require that the contest to open the probate shall be effectively begun within one year after the decree. That is not done by simply filing allegations. If it be, then there is no period for the beginning' of the new contest; for the contestant can as well wait three years, or ten, or any other period, before suing out his citation, if only his allegations be filed. No mode is provided for forcing him to take and serve the writ. The filing of the allegations stays no proceedings and gives no notice to the executor. He may proceed, therefore, and indeed must, as required by statute, to pay off debts, legacies, make distribution and close his accounts, and by final decree settle the estate, and yet be liable to be brought into court, at any indefinite time afterwards, to contest the validity of the will and of his appointment. If upon such a contest the probate be revoked and the will annulled, what are the consequences and what protection has the executor when all his proceedings, though taken in accordance with statute, fall to the ground 1

The construction given by the surrogate prevents such unnecessary evils, by requiring that the proceeding shall become effective within the year by filing the allegations and the issuing of the citation. It gives such force to the language of the statute as fully protects the rights of the next of kin to institute a controversy of all questions affecting the will and the legality of the probate, and at the same time guards against the great evils that might flow from a contrary construction.

Ve are, therefore, of opinion that the order appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Probate of the Will of JAMES STOKES, Deceased.

      Surrogate’s Oowri — equitable powers of, to requvre the books and papers of an estate to be opened to the inspection of a litigant — when such power will be exercised.

    An application made to a surrogate to exercise the equitable authority of the court and to require a temporary administrator to deposit in the court the books and papers of the estate, and submit them to the investigation of a party interested in a litigation as to the admission to probate of the will of the deceased owner, will not be granted upon the simple statement that the temporary administrator is hostile in interest to the petitioner, and does not afford her the same opportunity to search for letters, books and papers which might be favorable to her side of the case, which he gives to her adversary, it not being affirmatively alleged that any such documents so favorable to her interests exist.

      Semble, that should the petitioner designate any paper, document or hook containing evidence material to the decision of the issues involved, the' court has power to make such an order.
    Appeal from an order of the surrogate denying the petition of Dora Stokes Dale that the books and papers of the estate of James Stokes, deceased, her father, be deposited in court by the temporary administrator appointed pending a contest as to the admission of a will to probate, for the inspection and examination of herself and her counsel.

      F. N. Bangs, for the appellant, Dora Stokes Dale.

      Wm. M. Fvarts, for the respondent.
   Davis, P. J.:

It is expressly disclaimed by the counsel for the appellant that the application was made under any of the statutory provisions for the discovery and production of books, documents, etc. Nor is it claimed that there is any statute specifically conferring power on the surrogate to make the order prayed for. It is claimed in substance that the power rests in the equitable authority of the court to require its own officer and custodian to produce books and papers affecting a question in contest before it, and submit them to the inspection of a party interested in the litigation.

The application is largely based upon the assumption, or fact (whatever it may be) that the temporary administrator is hostile in interest to the petitioner and, therefore, withholds from her, sources of information or inquiry which he opens freely to her antagonist. We have examined the question with care, because of the apparent hardship, if it be true, that one side of the controversy enjoys full access to all books, papers and accounts of the decedent, while none is allowed to another party equally interested in the estate and in the controversy. A court would certainly be warranted in such a case in extending its powers to the utmost verge of its jurisdiction in aid of even-handed justice.

There is no complaint that the petitioner and her counsel are not permitted freely and fully to examine whatever documents, books or papers are produced in evidence in the case; but in substance that she does not have the same opportunity to search for and find, if they chance to exist, whatever letters, books and papers might tend in her favor, while her opponents, including the administrator, bring forward only those which they suppose tend against her.

It is not affirmatively alleged as matter of fact, within the knowledge of the petitioner, that documents favorable to her side of the issue actually exist. Their existence is purely matter of faith and hope rather than of knowledge; and her desire is to scrutinize all the books, letters, papers and documents of the decedent which have come to the hands of his present representative, to see whether such scrutiny will not develop something -that will aid her allegations against the validity of his will. In all its aspects the application is simply piscatorial, and if it succeed in catching nothing it will only disappoint a mere conjecture.

On the other hand, it is manifest that such an order may be seriously embarrassing to the temporary administrator in the discharge of his duties. His right to the custody of the books, etc., is undoubted. That such custody and control is needful in performing his functions is apparent. And to interfere therewith by such an order as is asked for would be an unusual exercise of power.

We think the learned surrogate rightly disposed of the motion on the grounds assigned in his opinion, and we are so far satisfied with the correctness of the opinion that we adopt it as our own.

If it be, or shall become in the progress of the case, in the power of- the petitioner to designate any paper, document or book as containing material evidence, we see no reason why she may not reach the same and secure its use in evidence by subjpcena duces tecum, or by an order of the court concededly within its power to make. The aid of the court will doubtless be liberally extended to her in such case, and nothing in the decision of this motion will operate to prejudice such an application.

But we agree with the surrogate that, even if the power invoked by this application existed, it would not be a proper exercise of it to command the administrator to place on the files of the court a heterogeneous mass of documents, letters, papers and books for the rumaging process of such an investigation as is now sought for by the petitioner.

The order must be affirmed, but without costs.

Dwight, J., concurred.

Brady, J., concurred in result.

Order affirmed, without costs.


text:
    CATHERINE ISABELLA MAXWELL, Respondent, v. CRAWFORD MAXWELL, Appellant.

      Alimony and counsel fees — not aUowed pendente lite where the plaintiff has adequate pecunim'y resources of her own— a reference to ascertain h&t' resources is proper. .
    Where it seems reasonably certain from the affidavits on a motion for alimony and counsel fees, pending an action for separation from bed and board, that the wife, the plaintiff, is not destitute of the means of livelihood, nor of means sufficient to carry on her action, the court should not direct the husband to pay such alimony and counsel fees.

      Semble, that in such a case the court might, on the plaintiff’s application, order a reference in order to ascertain definitely the plaintiff’s resources.
    Appeal from an order of the Special Term requiring the defendant, the appellant, to pay to the plaintiff alimony and counsel fees.

      I. T. Williams, for the appellant.

      B. Merritt,- for the respondent.
   Davis, P. J.:

This action was brought for a separation from bed and board, and for provision for the support of plaintiff, who is the wife of the defendant. The acts of cruel and inhuman treatment alleged in the complaint are charged to have taken place in the month of July, 1876, and in the months of August and November, 1879, and July, 1880. But the parties continued to live together in the same house, occupying different sleeping apartments, until the 1st day of May, 1882. About, that time the defendant rented the house in which they had been residing in this city and hired one in the city of Brooklyn at a cheaper rent, to which he desired the plaintiff to remove with him, which he says she absolutely refuséd to do. She then left him and has been since living by herself. In regard to her possession of means upon which to live and to carry on her suit the affidavits are conflicting. But there can be little doubt from the affidavits that the plaintiff, in addition to the $1,000 which she says she has, has also a note for the sum of $2,800 against the firm of Maxwell & Doeharty for money loaned to them, which firm is responsible; and that she has also a mortgage on real estate of $5,000, which has been kept for her in the defendant’s safe at his place of business, and which he states he is ready to deliver to her at any time, and on which she receives interest. Besides this she has been allowed and had paid to her by the defendant a sum weekly of ten dollars for her support.

Taking the affidavits of both parties together it seems reasonably certain that the plaintiff is not destitute of the means of livelihood, nor of property sufficient to carry on her action; and it seems to us, within the established rules in such cases, that the order of the court below granting alimony and counsel fees ought not to have been made. The most that should have been done by the court below was to have ordered a reference, if the plaintiff desired, to ascertain the fact in respect to her property as well as that of the -'defendant so that the court could have acted upon something more satisfactory than affidavits which are at best directly conflicting.

In Collins v. Collins (80 N. Y., 12, 13) the rule laid down.by Bishop on Marriage and Divorce (369-381) that, if the wife has sufficient means of her own, temporary alimony is not allowable, is recognized and adopted, and'the court say: “ The fact that the wife is destitute of means to cany on her suit and to support herself during its pendency is as essential as any other fact to authorize the court to award temporary alimony. This is not a mere matter of discretion but a settled principle of equity.”

The result of our conclusion upon the papers before us is that the order of the court below should be reversed with liberty to the plaintiff to apply upon her petition, and the several affidavits on which the motion was heard, if she shall be so advised, for an order of reference to ascertain the facts in respect to her own property and means as well as those of the defendant, and upon the coming in of the report to renew her application for alimony and expenses.

No costs of the appeal should be awarded to either party.

Brady and Daniels, J.J., concurred.

So ordered.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. ELSIE RYLAND, Appellant.

      Evidence necessary to corroborate the evidence of an accomplice under Code of Criminal Procedure, sea. 399 — Evidence showing that the accused was a principal, and not an accessory— Coercion of a wife by her husband.

    The corroborative proof, to connect a defendant with the commission of a crime, required by section 399 of the Code of Criminal Procedure, where a conviction is sought upon the testimony of an accomplice, is sufficient to authorize the submission of the case to the jury in a prosecution for forgery in raising and altering a check, where it appears by such proof, unexplained by the defendant, and in addition to the testimony of the accomplice, that the defendant got the check by an untrue representation that it was to be sent to her mother; that she caused it to be made payable to a fictitious person; that she obtained the check one evening, and that on the next day but one it was presented in its forged condition and paid, within a time which almost precluded its having been sent to the place where her mother lived.
    The evidence on a trial of a married woman for forgery tended to show a confederation of several persons to take various steps intended to, and which did, result in the commission of a crime. Prom the evidence it might be inferred that the participation of each was prearranged — the defendant to procure the check, which could be altered; her husband to make the alteration; the accomplice to get the money on it through some third person.

      Held, that there Was sufficient proof, assuming that the jury gave it credit, to show that the appellant was a principal, and not a mere accessory.
    That it would not he proper, under such circumstances, for the court to take the case away from the jury on the ground that the defendant (the wife) acted under the coercion of her husband.
    Appeal by the defendant from a judgment of the Court of General Sessions of the city and county of New York, convicting her of the crime of forgery in the third degree.

      Peter Mitchell, for the appellant.

      A. J. Requier, for the respondents.
   Davis, P. J.:

The appellant was indicted with her husband and one Woodbui-y for forgery in the third degree. The crime was committed by altering a check made by Demarest & Duncan for six dollars to the sum of $165.50, and uttering the same after such alteration.

The. testimony tending to establish the crime was given chiefly by one Crawford, an accomplice therein, whose evidence, if credited by the jury, was sufficient to convict the appellant unless the presumption of coercion on the part of her husband should operate to protect her.

One of the principal points made in the case on the part of the appellant is, that the corroborating proof required by section 399 of the Code of Criminal Procedure was not given.

Before the enactment of this Code, it was well established in this State that a conviction of crime could properly be had upon the uncorroborated testimony of an accomplice. (People v. Costello, 1 Denio, 83; People v. Davis, 21 Wend., 313; Lindsay v. The People, 63 N. Y., 143.)

It was the general practice of trial courts to charge juries that it was unsafe to convict without confirmation of the accomplice as to some material fact of the case; but this was not a rule of law, but rested in the sound discretion of the court; and the omission or refusal so to charge was not error. (Lindsay v. People, ubi supra.)

Cases would necessarily be very rare in which there would not be some corroboration of the accomplice as to some material fact; and' it was entirely safe to leave the question of the credibility of an accomplice in the hands of the jury.

But this established rule of the common law has been materially changed by the Code of Criminal Procedure. Section 399, as it stood at the time of the trial, enacted that “ a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and the corroboration is not sufficient, if it merely shows the commission of the crime or the circumstances thereof.”

A more complete shield for certain classes of crime, which must almost invariably be proved by accomplices, if at all, could not well be devised; for the corroboration, however strong in all other respects, must point to the connection of the defendant with the commission of the crime to be of any‘avail. And in those secret crimes where usually the only witness to the connection of the defendant with the actual commission of the crime is of necessity an accomplice convictions will fail however clearly the body of the crime is shown by additional evidence, because the witness, though fully corroborated in other respects, may not be corroborated in the designation of the person who cpmmitted the secret offense. But the law as declared by the Code must be accepted and applied by the courts. It is our duty therefore to see whether, in the strong corroboration of the accomplice in this case in other respects, there is any corroborating testimony which tends to connect the appellant with the commission of the forgery.

The evidence shows that a check for six dollars, payable to the order of Georgiana Mace, was obtained from Messrs. Demarest & Duncan upon their bank in this city; that that check was soon afterwards altered by erasing the name “ Georgiana Mace ” and inserting the name “ George S. Martin,” and by erasing the word “ six ” and inserting the words and figures “ One hundred and sixty-five ^Og- ” in the body of the check, and by changing in like manner the figures in the margin of the check ; and that the check so altered was presented at the bank and the money obtained upon it.

' These facts were abundantly proved without the testimony of the accomplice. They constitute the body of the crime. The accomplice also gave testimony, sufficient if believed, to show these several facts, and to prove, also that himself and the several persons named in the indictment were connected with the commission of the forgery and shared in different proportions in its proceeds. The question was thus presented to the court whether any of the evidence outside of' that given by the accomplice tended to connect the appellant with the forgery. It was proved by Mr. Duncan, one of the firm of Demarest & Duncan, that the appellant came to their store in the evening of April twentieth, and said she wished to purchase a check, as the post-office was closed up, to send to her sister of mother in Philadelphia, and it would accommodate her very much to get it off that evening; that he thereupon drew the check and gave it to her, and received six dollars from her; and .that the cheek was the same that had been altered. It was then proved, by the paying teller of the bank, that the check was presented in its altered condition on the twenty-second of April, and paid to the person who presented it (who is also one of the indictees).

Then followed the testimony of the accomplice showing the arrangement to get the check, the procurement by the appellant, its alteration by her husband at her house, and the subsequent obtaining of and the division of the money, of which the appellant received the largest share.

It seems to ns there can be no doubt, the forgery being proved, that this evidence, aliunde that of the accomplice, tends to connect the appellant with its commission. Unexplained, it showed that she got the check by an untrue representation that it was to be sent to her mother or sister in Philadelphia; that she caused it to be made payable to Georgiana Mace,” apparently a fictitious name; that she carried the check away that evening, and that on the day but one following it was presented at the bank in its forged condition and the raised amount obtained.

These facts tended to connect her with the criminal alteration of the check, because they were sufficient to put her upon explanation. They connected her with the check under very suspicious circumstances, from which, if unexplained, a fair inference grows that she was connected with the forgery; and, therefore, they were in some degree corroborating evidence of the character required by the Code. The section of the Code referred to does not require positive, or direct, or conclusive evidence. It need only “ tend to connect” the defendant with the commission of the offense. Unexplained, the tendency of the evidence was to show that the check was obtained by the appellant in person upon a false pretext and for a pretended use to which it was not put; and that instead of being sent to Philadelphia, it was altered and raised and the money gotten on it, within so short a time after it was obtained as almost to preclude the possibility of its having been sent to that city; and although this alone might not justify the conviction, yet, taken with the evidence given by the accomplice of her presence at the commission of the forgery and her sharing in its fruits, it presented a case proper to be sent to the jury, especially after her own examination had failed to explain or contradict some of the important circumstances.

The other important question is whether the presumption of coercion loy the husband, required the court to take the case from the jury. The charge in the case is not given. We must presume that the court charged the jury correctly as to the law affecting this question, and as to • the duty of the people to overcome any presumption in favor of married women who participate with their husbands in the commission of crime.

The law on this subject, as announced in Seiler v. The People (77 N. Y., 413); Goldstein v. The People (82 id., 233), is to the effect that coverture is no protection where the wife is shown to have taken an active and willing part in the criminal act, or where she is the inciter of it, and tliat the fact of the husband’s presence is but prima facie evidence of coercion, which like other presumptions may be rebutted and overcome by proof.

The court in determining the question of coercion had before it the whole of the testimony, including that of the accomplice, and was to act upon the probability that the jury would give credit to the whole; and in that view it is impossible to say that it was the duty of the court to take the case from the jury on the grounds of coverture and coercion. There was sufficient proof, assuming that the jury gave it credit, to show that the appellant was a principal and not a mere accessory before or after the fact. The evidence tended to show a confederating of several parties to take various steps intended to and which did result in tbe completion of the crime. The jury had a right to find from the evidence that the participation of each was prearranged, the appellant to procure the check which could be altered, the husband to make the alteration, the accomplice to get the money upon it through some person, and the several parties to divide the proceeds, and to find the consummation of the object all had in view by each doing his or her preconcerted part.

We think the question whether the appellant was an accessory or a principal party was proper to be submitted to the jury, and that it was no error to refuse to take it from them.

The result is that the judgment should be affirmed.

Dwight, J., concurred

Present — Davis, P. J., and Dwight, J.

Judgment affirmed.


author: Barker, J.:

text:
    WILLIAM P. RADLEY and THOMAS J. RADLEY, Infants, by WILLIAM J. KANE, their Special Guardian, Appellants, v. PETER KUHN and Others, Executors, etc., of MICHAEL KUHN, Deceased, and Others, Respondents.

      Trusts — suspension of the power of alienation — a valid trust sustained, although another trust in the samw will is not.

    A testator devised certain real property to his executors upon the following trust, to take charge of the said real estate, and out^f the income thereof “to pay each of my grandchildren, William and Thomas Radley, the sum of seven hundred dollars, the said sum to be paid to each of them without interest at their respective arrivals at the age of twenty-one years, and in case either shall die before such age the survivor to have the whole sum of fourteen hundred dollars. * * * The trust hereby created is to continue until my son Charles Henry arrives at the age of twenty-five years, unless the said Charles Henry sooner dies. If he lives to be of such age he is to have the rents and income and benefit of said real estate * * * .(after the aforesaid payments therefrom are Inade) during his lifetime, and if he should die leaving any lawful children, the said real estate on Eighth avenue is to become theirs in fee when they arrive at the age of twenty-one years.”

      EM, that as in case one of the Radley children and Charles Henry the son should both die before the fourteen hundred could be raised, the trust must still, by the terms of the will, continue for the benefit of the other Radley child; and as also in the event that both the Radley boys should die before the trust in their favor was executed, and Charles Henry should survive them, the estate ■ would be inalienable during Charles Henry’s life if tl^e trust continued for that period, or if the trust ended when the Radley boys were paid off, no estate could vest as Charles Henry might die without ever having any lawful children, therefore there was a possibility that the power of alienation might be suspended beyond two lives in being at the death of the testator, and that the trust, was consequently void.
    By the same will certain other projierty was left in trust.for the benefit of two . daughters for life, and at their death it was given to their children.

      Held, that this being a valid trust should, under the circumstances of this case, which neither disclosed the value of the respective pieces of property or the general intention of the testator as regards the division of his property, be sustained notwithstanding the invalidity of the other trust.
    Appeal from a decree of the surrogate of the county of New York admitting to probate the last will and testament of Michael Kuhn.
    The testator died at the .city of New York, on the 5th of November, 1878, leaving a last will and téstament, bearing date the 22d day of August, 1877, of which the following is a copy, excepting the formal paragraphs..
    “ First. I give and bequeath all my household furniture to my daughter Matilda.

      “Second- I give, devise and bequeath unto my executors, hereinafter named, the houses and premises Known as numbers 472 Eighth avenue and 496 Ninth avenue, in said city,- together with all other property, real and personal not hereinbefore devised, in trust however, to and for the following purposes, to wit: to take charge of the said real estate, and to collect and receive all income therefrom, and to pay all taxes, assessments, and interest moneys thereon, and out of said income from the house number 472 Eighth avenue, to pay each of my grandchildren, William and Thomas Hadley, the sum of seven hundred dollars, the said sum to be paid to each of them without interest at their respective arrivals at the age of twenty-one years, and in case either shall die before such age, the survivor to have the whole sum of fourteen hundred dollars, and in case they both should die before that age, my executor has no part ■of the said sum to pay to any one whomsoever, and said payments so to be made, are to be made, are to be free of their parents control ; the trust hereby created is to continue until my son Charles Henry arrives at the age of twenty-five years, unless the said Charles Henry sooner dies. If he lives to be of such age, he is to have the rents and income and benefit of said .real estate, number 472 Eighth avenue only (after .the aforesaid payments therefrom are made), during his lifetime, and if he should die leaving any lawful children, the said real estate on Eighth avenue is to become theirs in fee, when they arrive at the age of twenty-one years, and the same is devised accordingly. . And my two daughters, Matilda Kuhn and Margaret Schoenberger, are to have all the income and benefit of my real estate number 496 Ninth avenue, each to share and share alike (after all interest moneys, taxes and assessments thereon are paid when due) during their lifetime; and at- their death, if they leave any lawful children, the said real estate on Ninth avenue only is to become theirs in fee, and the same is devised accordingly.
    “No son-in-law of mine is to have any control or benefit of my property.
    “ Lastly. I hereby nominate, constitute and appoint' my brother Peter Kuhn, my son-in-law J. C. Schoenberger, and my friends Charles Sier and Louis Sier and Jacob Michael, executors of this my last will and testament, giving them full power (while performing the aforesaid trust) to execute all mortgages on my property necessary to renew the mortgages now on or to raise money to pay them off. ’ The new mortgages hereby authorized are not to exceed the amount of the mortgages to be renewed or paid off; and I hei’eby revoke all other former wills made by me.”
    The testator left him surviving his son Charles ■ Henry, who was then eighteen years of age, two daughters, Matilda Kuhn and Margaret Schoenberger, both of whom were of ful‘1 age, William Radley and Thomas Radley, grandchildren, who were then under fourteen years of age, but their exact ages are not disclosed. It does not appear from the evidence taken before the surrogate that there was any incumbrance by way of mortgage upon either house and lot mentioned in and devised by the will, nor does it appear that the testator left any personal property except that which was devised under the first clause of the will. Nor was it disclosed what was-the rental value of the premises No, 472 Eighth avenue, or the amount of taxes annually assessed upon the same. The Radley children appeared before the surrogate by their special guardian and contestéd the probate of the will upon the grounds, among others, that the testator did not in due form of law acknowledge, publish and declare the same to be his last will and testament; and that the trusts set up in the will and sought to be established by the testator are illegal and void.
    They also, in case the said will should be admitted to probate, prayed the surrogate to pass upon and determine the true construction, validity and legal effect of the several provisions contained in the will, in pursuance of the power and authority conferred upon the surrogate by chapter 359 of the Laws of 1870. The surrogate overruled the objections made to the probate of the will upon the ground that the same was not published and declared by the testator to be his last will and testament. He also upheld and sustained all directions, trusts and provisions as being valid and not contrary to the provisions of the statute, limiting the power of alienation.
    From the decree the Radley children appeal. The children of the testator seek to uphold the will and to sustain all its provisions.
    ' Nelson J. Waterbury, for the appellants.

      George S. Hamlin, for Charles Kuhn and others, respondents.

      Edward G. James, for the executors, respondents.
   Barker, J.:

The evidence is abundant and satisfactory to establish the due execution and publication of the will as required by the statute. Each of the subscribing witnesses testify distinctly and positively that the testator declared the instrument to be his last will and testament, and that he requested them to become subscribing witnesses thereto, and that he in the presence of each acknowledged it to be his last will and testament.

Mr. Peck, one of the subscribing ■ witnesses who copied the will from a draft presented to him by the testator, states that he saw the testator sign the will at the time he declared the same to be his last will and testament, and that the same was done in the presence of himself and Mr. Michael, the other subscribing witness. He further states that at the time the will was subscribed by the testator in the presence of himself and the other witness he read to him the attestation clause, which is in the following words:

“ Subscribed by Michael Kuhn, the testator named in the foregoing will, in the presence of each of us; and at the time of making such subscription the said instrument was declared by the said testator to be his last will and testament, and each of us, at the request of the said testator, and in his presence and in the presence of each other, sign our names as witnesses thereto at the end of the will.” This being read to the testator at the time of the execution of the will, and in the presence of the subscribing witnesses, and the testator assenting to the statements contained in the attestation clause, is evidence of itself of due publication of the will.

The real and important question presented by this appeal is whether the trust intended to be created by the testator is valid.

It is claimed by the Radley children that the testator sought to create a trust in all his real estate, and if the same is upheld and carried out according to his directions .the power of alienation is necessarily suspended beyond the period of two lives in being at the time of the creation of the trust estate, and is therefore contrary to the provisions of the statute against creating perpetuities and is void. It therefore becomes necessary to examine the statute upon the subject. “The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate.” (1 R. S., 723, § 15.) “Every future estate shall be void in its creation, which shall suspend the power of alienation for a longer period than is prescribed in this article. Such power of alienation is suspended when there are no persons in being by whom an absolute fee can be conveyed.” (Sec. 14.)

By the terms of the will an estate was given to the trustees, which vestpd in them the title with the power to collect and receive all the income therefrom, to pay the taxes assessed and interest money thereon, and to pay out the net income as in the will directed.

So long as it is necessary for the trustees to ha.ve and hold this property for these, purposes, no estate can vest in any other person. As the trustees were given full and complete power and control over the real estate, to enter into the possession of the same and to collect and receive all income, and to pay out a portion of the net avails to beneficiaries who took no interest or estate in the land, it was essential to carry out the aims and purposes of the testator, to give the trustees the title to the property during the continuance of the trust intended to be created.

Upon this question there can be no doubt. A trust is always constituted through. the medium of a legal estate and a trustee. Such legal estate is a present estate, and by the settled principles of law is equal in quantity, and duration to the legal purposes of the trust.

It is equally plain, and needs no argument to prove, that during the period which it was intended by the testator that the trustees should have and hold the title to the lands they possess no power or authority to sell and alienate the same or any parcel thereof. They are destitute of authority to convey the fee. At no time, nor in any event, were they empowered to make a sale and conveyance by virtue of any of the provisions in the will. "When the trusts mentioned were fully executed, then by the operation of law, without a conveyance from the trustees, the title would vest in those who are to take the ultimate estate. The statute is conclusive upon, the subject, for it is provided: Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees in law and in equity, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.” (Sec. 60, p. 729.) And by the sixty-fifth section (page 730) it is further provided: “ Where the trust shall be expressed in the instrument creating the estate every sale, conveyance or other act of the trustees in contravention of the trust shall be absolutely void.”

These provisions of the statute add nothing to the commón-law rule concerning the character of the estate taken by the trustees, or as to the power of the trustees to alienate property held in trust, but were introduced in the statute relative to trust estates as plain and concise declarations of the law on the subject.

It being clear and certain that the trustees have an estate in the lands, and that they have no power to alienate the same during .the continuance of the trust, the next inquiry is, has the power of alienation been suspended by the terms of the will beyond two lives in being at the death of the testator, at which time the trust estate was created.

If by any possibility the title can be held in the trustees beyond two lives in being, at the time of the creation of the estate, then a perpetuity is created which is unauthorized by the statute.

In Hawley v. James (16 Wend., 120), Justice Bjeonson says: “ If the estate is so limited that by any possibility the power of alienation may be suspended beyond the statute rule the limitation is void.” Chief Justice Nelson, in the same case, remarks: “ If, in either aspect, the limitation of the estate might suspend the power of alienation beyond the time allowed by law it will be impossible to sustain it, because the rule is well established that a limitation which by possibility may create such a suspension is void.” A like opinion is expressed by Chancellor Kent in his Commentaries (vol. 4 p. 282; 4 Cruise, 449).

The possibility that the estate in the trustees may continue beyond two lives in being exists in this case. The trust for the benefit of the Radley children must continue, by the provisions of the will, until the sum of $1,400 is realized out of the net proceeds of the house No. 472 Eighth avenue, unless they both sooner die.

Suppose Charles Henry, the son, had died immediately after the death of his father, and before the $1,400 to be raised for the benefit of William and Thomas Radley had been accumulated, that would be one life terminated which was in existence at the time of the creation of the estate; and then one of the Radley children should die, the sum of $1,400 not yet being realized, the trust must still be continued, although two lives in being and interested in the property as beneficiaries are dead, and the trust must still continue to carry out the purposes of the will, because the survivor of the Radley children is entitled to have the trust estate continued.

It-was also provided that Charles Henry should enjoy the rents, income and profits of the real estate during his lifetime, if he should survive the Radley boys, or the period when the $1,400 should have been accumulated for their benefit. Now, if it should occur that both of the Radley boys should die before the trust in their favor was executed, then two lives have expired since the creation of the trust estate, and no person is in existence in whom the estate vests in fee'and who can convey the property. This would be so whether it be held that it was the intention of the testator to continue the title in the trustees after the Radley boys arrived at full age, if they should reach that period, and they, as trustees, pay over the rents and profits to Charles Henry during his life, or whether the trust terminated on its being executed, so far as the Radley boys were concerned, and Charles Henry went into possession of the property as a person having the life estate; for if it be held that the trust continued then the estate was unalienable during his life. If it be held, as has been argued, that the trust ended when the Radley boys were paid off, then no estate could vest because Charles Henry might die without ever having any lawful children.

In the will there is this provision following the direction to pay over $1,400 to the Radley boys: “ The trust hereby created is to continue until my son Charles Henry arrives at the age of twenty-five years, unless the said Charles Henry sooner dies.”

It is not quite clear to my mind just what was intended by the testator in the use of this phrase. He does not in terms declare that if Charles Henry dies before he arrives at the age of twenty-five years that the trust in favor of the Radley children should terminate. It is manifest that he did not intend that the trust should cease at all events upon the death of Charles Henry, without regard to the condition of the trust estate, when that event should happen, because if Charles Henry had died immediately upon the creation of the trust estate it is clear that the testator intended that the trustees should, nevertheless, execute the trust, so far as his grandchildren were concerned, and accumulate the sum intended for their benefit.

It was probably in the mind of the testator, and he so supposed, that at the time Charles Henry arrived at the age of twenty-five years, if he should live so long, the Radley boys would then be of. • full age, and the sum given to them realized and paid over at that time.

It would seem also to have been in the mind of the testator that if Charles Henry should live to arrive at the age of twenty-five years, and the Radley children, or either of them, were still alive, and the sum of $1,400 intended for them, not yet accumulated, that Charles Henry should take his interest, subject to creating and paying over the amount intended for the grandchildren, for it is provided if Charles Henry lives to be of the age of twenty-five years he is to have the rents, income and benefit of the said real estate No. 472 Eighth avenue, only after the aforesaid payments therefrom are made during his lifetime.

' But it does not seem to be necessary to consider and interpret all of the possible views which may be taken of this inartificial instrument, and seek to ascertain the meaning intended to be expressed in some of the phrases and sentences contained in the will, for the trust intended to be created by the testator is invalid and must fail for the reasons which we have already stated.

* The trust which we have been thus far considering relates wholly to the house No. 472 Eighth avenue, and as the same is void it remains to be determined what effect it has upon the other trust created by the will concerning house No. 496 Ninth avenue.

The title to this property was vested in the trustees the same as in the other property, with a like power of taking possession, to collect and receive the income, to pay taxes and assessments, and the net income is to be paid over to his daughters Matilda Kuhn and Margaret Schoenberger during their natural lives, and at their death the same is to vest in fee in their children.

This is in every respect a valid trust and may be enforced without violating the provisions of the statute. It relates to a separate and distinct piece of property. The beneficiaries named are other persons than those provided for in the other trust, and it may be treated as separate and distinct and upheld as valid.

It has been argued by the counsel for the grandchildren that to declare the first trust void and this valid would break up and interfere with the scheme of the testator, and that all of the trusts should be declared void and the court decree that as to the testator’s real estate he died intestate.

If we regard the will as creating a single trust for two purposes, one lawful and the other unlawful, the trust is good for the lawful purpose, although void for the unlawful one.

The principle is now well settled that the courts lean in favor of the preservation of all such valid parts of a will as can be separated from those that are invalid, without defeating the general intent of the testator.

If both trusts are declared invalid, and it be held that the testator died intestate as to all his real estate, then the effect is to distribute the same equally among all his children, the grandchildren taking the portion which would have descended to their mother if living.

We are unable to determine that it was the intention of the testator to give his property in equal proportions to his children by the terms of his will.

The value of these separate properties is not disclosed. It would be a mere conjecture and assumption to act upon the idea that these separate pieces of real estate are of equal value. If the trust had been carried out as to all the property it may be that the gift to the grandchildren of a gross sum is greater in value than the life estate or lands given to his own children. It cannot be determined from the case before us how near equality the testator sought to secure in the beneficial interests which he gave his children and grandchildren.

By holding that the first' trust is void and the second valid it is manifest that the daughters secure a greater interest in their fathers estate than he intended by the provisions of the will, for they together will take one-half of the house No. 472 Eighth avenue in fee. But we are without information how much their estate is increased by the results which we have reached.

At the time of the malting of the will the property embraced within the first trust appears to have been incumbered by mortgages, but the amount is nowhere disclosed.

The testator in creating the second trust made a lawful and valid disposition of a portion of his property, and under the circumstances of this case we are constrained to uphold the trust and not to interfere with his directions, for that would be to make a will for him. (Harrison v. Harrison, 36 N. Y., 547, and the cases there cited.)

The intent of the testator having thus failed, so much of his estate as was the subject of the void trust goes to his heirs-at-law.

If any accumulations of the rents and profits are now in the hands of the trustees arising from lot No. 472 Eighth avenue, they must take the same direction.

The decree of the surrogate should be modified accordingly, and the costs of all the parties to this appeal be paid out of the funds in the hands of the receiver or the trustees.

Brady, P. J., and Daniels, J., concurred.

Decree modified as directed in opinion.


author: Dwight, J.:

text:
    PETER VAN ZANDT LANE, Appellant, v. JEDEDIAH K. HAYWARD, as Executor, etc., of EMMA BARTLETT, Deceased, Respondent.

      A pleading, amended on the trial — need not he served.

    Where an amendment to an answer is allowed on the trial, an amended answer need not be served, unless such service is made a condition of the allowance. The amendment becomes part of the record upon being allowed.
    Appeal from an order of the Special Term denying plaintiff’s motion to strike an alleged amended answer from the judgment-roll.

      Hemy Brewster, for the appellant.

      J. K. Hayward, for the respondent.
   Dwight, J.:

This motion seems to have been properly disposed of at the Special Term. It was based upon the ground that the alleged amended answer was never served on the plaintiff’s attorney, but that, having been handed to his counsel and retained by him merely for submission to the attorney, reserving the latter’s right to object thereto, it was refused by him and returned to the defendant. But it appears, from all the papers used on the motion, that the amendment was allowed by the referee on the trial and was required to be stated orally in open court, and that instead of being then and there embodied in the referee’s minutes, it was, for greater convenience, subsequently reduced to writing by the defendant and copies furnished to the referee and to counsel for the plaintiff. These being the facts, there was no ground for this motion. An amendment allowed on the trial, does not require to be served, unless such.service is made a condition of the allowance; it becomes part of the record upon being allowed. There remains, no doubt, the question whether the amendment was properly allowed, and that ruling, if excepted to, will come up for review on appeal from the judgment. It cannot be reviewed on a motion to strike the amended pleading from the judgment-roll.

The order appealed from must be affirmed, with ten dollars costs of appeal and disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed, witli ten dollars costs and disbursements.